1 Ms. Mitchell wa s diagnose d with pap illary carcinom a in 1986 . She has und ergone fou r surgeries to remove

tissue in her neck re gion. As a resu lt of these previo us surgeries, M s. Mitchell was left with only one parathyroid gland which was su

bsequen tly removed by

Dr. Kaye

m. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE December 6,

2000 Session SANDRA MITCHELL v. MARC J. KAYEM, M.D., ET AL 

### .

Appeal from the Circuit Court for Maury County No. 8097 Robert L. Holloway, Jr., Judge

No. M2000-01629-COA-R9-CV - Filed March 7, 2001

Patientwith a history of papillary carcinoma unde rwent a fine needle aspiration which conf irmed
a diagnosis of cancer in her neck region. Patient underwent surgery to remove the cancerous tissue which resulted in

hypoparat

hyroidism an

d injury to

her recurrent

larynge al nerve, risks c

ommonly associated

with the pr ocedure. Pa tient brou gh t informed consent a ction against doc tor, claiming tha

t, had the inherent risk

s of the procedur

e been disclosed

to her, she would ha

ve sought a se

con d opinion and had the pr ocedure performed at a different facility by a different surgeon. The doctor moved for

summary judgment, which the trial court denied. Finding there are no material, disputed facts remaining, we reverse and remand.
Tenn. R. App. P. 9 Inte

rlocutory Appeal;

Judgment of the Cir

cuit Court Rever

sed; and Remanded

D AVID R. F ARMER , J., delivered the opinion of the court, in which A LAN E. H IGHERS and H OLLY K. L ILLARD , J.J., joined.

Thomas W. Lawrence

, JR. and R. Blake Men

zel, Nashville, Te

nnessee, for the

appellant,M arc J. Kayem, M.D.
Tracy W. Moo

re, Columbia, Tenn

essee, for the a

ppellee, Sandra

Mitchell.

OPINION

Sandra Mitchell (Ms. Mitch

ell), a licensed

L.P. N. wit

h a history of papillary carc inoma, 1 sought treatment from Dr. Marc Kayem (Dr. Kay em), an ear, nose and throatspecialist, for a marblesi zed nodule on the right side of her esophagus w

hich had been pre

sent for approxima

tely six months. Dr. Kayem ordered a biopsy of the

nodule in the form o

f a fine needle a

spiration, the re

sults2 Ms. Mitchell initiall y sued both Dr. Kayem and Dr. W illiam R. Stewa rt, d/b/a Co lumbia Ear, No se & Th roat; however, Ms. Mitchell agreed t hat Dr. Stewart

should be dismis sed from this action pursuant

to Rule 41 of the Tenness ee Rules of Civ il Proced ure, and the tria l court entered an order to that effect on Au gust 27, 19 99.
-2- of which confirmed that thenodule was canc erous. Dr. Kay

em advised Ms. Mitc

hell that surgery
was necessary to treat the

cancer. Five days before the surgery was scheduled, Ms. Mitchell visited Dr. Kayem’s of

fice to schedule

pre-operation procedures and, during that visit, she signed a consent form for the planned surgery. Ms. Mitchell signed the same consent form again on the morning of the surgery. The surgery

involved removal of a 4x2 ce ntimeter lump and th

ree nodules in

the right side of Ms. Mitchell’s neck. Additionally, Dr. Kayem re moved al l remaining thyroid tissue, includi ng Ms. Mitc hell’s last parat hyroid gla

nd, because the t

issue and gland w

ere inextricably involved in the malignant tissue.

Ms. Mitchell returned to Dr. Kay em’ s office for a follow-up visit after the surgery complaining of tingling in her hands and feet, lip and eye problems, chest pains, and hoarseness. Dr. Kayem presc rib ed medication to c ontrol Ms. Mitchell’ s tetany, an d he recommende

d that Ms. Mitche ll start rad iation therapy. Ms. Mitchell visited Dr. Hainsworth, an oncologist, for her radiation therapy still complaining of hoarseness. Dr. Hainsworth suspected that Ms. Mitchell was suffering f rom hypop arathyroidism and a paralyzed voc al cord caused by the surgery . The paralysis of her vocal cord was confir

med by Dr. We

iss. Ms. Mitchell unde

rwent another su

rgery fo r a Sil ast ic implantprocedure to

medialize her

voc al c ord whi ch re tur ned Ms. Mit chel l’s voi ce t o fu ll c apac ity.

Ms. Mitchell sued Dr. Kayem under the theories of battery and lack of informed consent for failure to inform her of the risks of vocal cor

d paralysis

and loss of parathyroid function associated withthe sur gery. 2 Ms. Mitchell testified in her deposition that she did not learn of these risks until after the surgery was performed. Ms. Mitchell further testified in her depositionthat, had she been told of the potential loss of her parathyroid gland and the potential damage to her recurrent laryngeal nerve, she would not have had the surgery. When asked if she would not have had surge

ry at all, Ms. Mitchell testified that she

didnot necessarily mean that she would not have had the surgery, but that she probably wo

uldhave gone to Va

nderbilt Hospital or another Nashville hospital and would have sought a second opinion. Ms. Mitchell later testified that it was highly probable that she would have hadthe surgery to treat her cancer. I n her brief, Ms. Mitchell conceded that she would have undergone

the surgery

whether or not the

inherent risks of

the procedure w

ere disclose

d, beca use such surgery was

necessary, but she reiterated that she would have sought a second opinion and would have chosen treatment at a Nashville facility.

In his affidavit, Dr. Kayem s tates that surge ry was the o

nly treatme

nt available to Ms. Mitchell in order for

her to avoid progression of the cancer. He further states that potential injury to the recurrent lar

yngeal ne rve, which affe

cts the vocal cor

ds, and to the parathyroid glands, which control calcium levels in the body, are known and recognized risks of this surgery which can occur in the hands of the most competent surgeon in the absence of negligence. According to Dr

. Kayem, these risks were greater for Ms. Mitchell because of her two previous instances with cancer and her-3-

four prior surgeries in which all but one of her parathyroid glands were re moved. Dr. Kayem a

sserts that the removal of the remaining parathyroid gland wa s unavoidable.

Based upon the facts in evidence, Dr. Kayem filed a motion for summary judgment. In light of the TennesseeSupreme Court’s opinion in Ashe v. Radiation Oncology Associates , 9 S.W.3d 119 (Tenn. 1999), the trial court determined the issue for summary judgment to be whether a reasonable person in Ms. Mitchell’s position would have conse

nted tothe surgery had she been advised of the significant

risk of injury to the laryngea l nerve and its effect on

the vocal cord, and the potential l oss of her pa rathyro id fun ction and th e effec ts th ereof . In the Ashe opinion, the court stated the issue to be “whether a r

easonable patient in Ms. Ashe’s position would have chosen a different course of treatment.” Ashe , 9 S.W.3d at 124. Based upon this language from Ashe , Ms. Mitchell argues that the phrase

“different course of treatment” includes not only having the surgery, but also having
someone else perform the surgery. Viewing the case in the light most favorable to Ms. Mitchell, the trial court overruled Dr. Kayem’s motion for summary judgment and held that there was a question of material fact as to “whether a reasonable person in Mrs. Mitchell’s position would have chosen
a different cour

se of treatment,

i.e. a second opinion or surgery by a different physician.” Dr. Kay em appealed the trial court’s

denial of his motion f

or summary ju

dgment pursuant

to R ule 9 of the Tennessee Rules of Appellate Procedure.

Our revi ew of a motion for summary judgment involves purely a que stion of law, so no presumption of correctness attaches to the lo

wer court’s judg

ment, and our task i

s confi ned to reviewing the r

ecord to determi

ne whether the r

equirements

of Rule 56 of the Tennessee Rules of Civil Procedure have been met. See Tenn. R. App. P. 13(d); Bain v. Wells , 936 S.W.2d 618, 622 (Te nn. 19 97). Rule 56.03 of the Tennessee Rules of Civil Procedure provides that summary judgment is appropriate wh

en: (1) thereis no genuine issue of material fact relevant to the claim or defense contained in the motion; and (2) the moving party is entitled to a judgment as a matter of law
on the undisputed facts. See Tenn. R. Civ. P. 56.03. The burden of proving that such a m otion satisfies these requirements lies with the moving party. See Ba in , 936 S. W.2d at 622. When the moving party makes a properly suppor ted motion, however, the burden then shifts to the nonmoving party to set forth specif

ic facts that establish the existence of disputed, materialfacts which must be resolvedby the trier of fact. See id. On appeal, we must view the evidence in the light most fa vorable to th e nonmoving party and draw all reasonable infere nces in his favor. Summary judgment should be grante

d only when both the facts and theinferences to be drawn from the fa

cts permit a reasonable person to reach only one conclusion. See id.

The case now before us is premised on lack of informed consent because Ms. Mitchell did, in fact, authorize the surgery performed by Dr. Kayem, yet she

alleges that she was not informed of the inherent risks of the procedure. A case premised on lack of informed consent arises whenthe patient is aware that a procedure will be performed but is unaware of the risks associated with such procedure. See Ashe v. Radiation Oncology Ass ocs. , 9 S.W.3d 119, 121 (Tenn. 1999). A patient seeking damages in such a claim must prove that the physician’s conduct fell below the applicable3 Section 29-26-118 of t he Tennessee Code provides
Proving inadequacy of consent. - In a malpractice action, t he plaintiff shal

l prove by evidence a

s requir ed by § 29-26-1 15(b) tha t the defenda nt did not sup ply appro priate informat ion to the patie

nt in obtain

ing informed consent (to the

procedure out

of which

plaint iff’ s claim a

llegedl y ar ose) in accordance wi th the recogni

zed standard of accepta ble profess ional practi ce in t he profession and in the specialty, if any, that the defendant practices in the community in which the de fendant practices and in similar com munities.

Tenn. Code Ann. §29-26-11 8 (2000).
-4- standardof care 3 and that a reasonably prudent person in t he patient’s position would not have consented to the p

rocedure if suit

ably inform

ed of the inheren

t risks.

A physician is

required to

disclose enough information about the procedure involved and its attendant risks to enable the

patient to make an intellig

ent decision and th

ereby gi ve his consent to the procedure. See Shadrick v. Coker , 963 S.W.2d 726, 732 (Tenn. 1998); Cardwell v. Bechtol , 724 S.W.2d 739, 750 ( Tenn. 1987). Typically, a phy sician must disclose the nature of the patient’s ailment; the nature of and the reasons for the treatment or proc

edure; the risks in

volved with

such treatment or procedure; whether such procedure is experimental; alternative methods of treatment along with the risks and benefits associated with it; and the patient’s prospec ts for success. See Shadrick , 963 S.W.2d at 732. Whether the information disclosed to a patient is sufficient depends upon “the nature of the treatment, the extent of the risks involved, and the stan da rd of care [applicable

to the def

endant healt

h care provider].” See id. (quoting Cardwell , 724 S.W.2d 739, 749). A physician

is not, however, r

equired to disclos

e every a spect of the propo

se d trea tment or procedure or to discuss every possible risk involved. See Shadrick , 963 S.W.2d at 733.

In Ashe , the Tennessee Supreme Court adopted the objective standard for evaluating causation in in formed consent c ases. According

ly, a patien

t must also prove tha

t a reasonably prudent person in the patient’s position would not have consented to the procedure if he had been suitably informed of all perils bearing significance. See Ashe , 9 S.W .3d at 122. Under t his standard, the failure by

a physician to disclose significant, inherent risks of the proposed procedure is, however, not a dir

ect cause of the

injury suff

ered by the

patient unless a r

easo nab ly prudent person would not have con sented to the trea

tment if informed o

f th ose risks. See Simons v. Georgiade , 286 S.E.2d 596 (N.C. Ct. App. 1982). The Ashe court further instructed that a patient’s testimonyas to whether he w ould have consent

ed to the proposed

medical procedu

re upon full disclosure of the risks involved is relevant but is not controlling. See Ashe , 9 S.W.3d at 122, 124. In applying the objective standard, the finder of fact may take into acc ount the persona l characteristics of the patient, such as his idiosyncracies, fears, religious beliefs, a ge, a nd medic al condition. See Ashe , 9 S.W.3d at 124. Accordingly, the Ashe court determined that the standard in informe d consen t cases is “whether a reasonable person in [the patient’s] position would have chosen a different course of treatment.” Id. at 124.

As previously stated, Ms. Mitchell initially testified in her deposition that, had she bee

n told of the potential loss of

her parathy

roid gland and th

e potential damag

e to her recurr

ent l aryngea

l-5-

nerve, she would not have had the surgery. When asked if she would not have had surge

ry at all, Ms. Mitchell testified that she did not nec essarily me

an that she would

not have had the surgery, but that she probably would have gone to Vanderbilt Hospital or another Nashville hospital and would have sought a second opinion. Ms. Mitchell later testified that it was highly probable that she would

have hadthe surgery to treat her cancer. I n her brief, Ms. Mitchell conceded that she would have undergone

the surgery whether or not the inherent risks of t he proc edure were disc

losed, because such surgery was necessary , but she reite

rated that she would have sought a second opinion and would have chosen treatment at a Nashville facility.

In h is affid avit, Dr. Kayem stated that the surgery he performed on Ms. Mitchell was necessary in that it was the only treatment available to avoid progression of Ms. Mitchell’s disease andher untimely death. He further stated that the risks of the procedure were known and recognized complications of the surgery performed and that they could occur

in the hands of the most competent surgeons in the a

bsence of negl

igence. Ms. Mitc

hell failed to present

expert medical tes

timony to the contrary. Additionally, Ms. Mitchell failed to present expert medical testimony to establish that Dr. Kayem’s conduct fell below the standard of care. In the present case, it is not refuted that the risks associated with Ms. Mitchell’s surgery would be t he same if performed by any competent surgeon.

Ms. Mitchell contends that, while she would not have declined the procedure, s he would have chosen a nother physician to perform the surgery had she been fully informed. She interprets the Ashe court’s language of “different cours e of treatment” to include not only a different medical procedure, but also choosing a different sur

geon to perfor

m the same

med ical proc

edure. We disagree. Treatment is defined as “the action or manner of treat

ing a patient med

ically or s urgi cal ly” while procedureis definedas “a particular way of accomplishing something or of acting.” Merria

mWebster’s Medical Desk Dictionary 728, 576 (1993). As we int er pret the language in Ashe , treatment or procedure r

efers to the type of procedure and the manner of performing it rather than to the person performing the procedure. This interpretation is supported by the language of the Ashe court itself: “The jury . . . should have been allowed to decide whether a reasonable person in Ms. Ashe’s position would ha ve consent ed to the radiation therapy had the risk of paralysis been disclosed.” Id. at 124 (emphasis added).

Ms. Mitchell signed a

me dical cons ent form in which she gave her express consent to the medical procedureperformed by Dr. Kayem. The consent form contained the following langua ge:
2. I consent to the perform an ce of operations and procedures in addition to or different from those

now contemplated, whether or not arising fr

om presently
u nforeseen

conditions, which t

he above named do

ctor or his associ

ate s o r assistants may consider necessary

or advisable in the course of the operation.

. . . .-6-

4. The nat ure and purpose o f the operation, p

ossible alternati

ve methods o f treatment,the risks involved, the possible consequences, a

nd the possibility of com plications, such as necrosis of tissue, infections, unassociated heart attack, cardiac arrest, uncontrollable bleed in g, allergic reactions or blood clots, have been explained to me by

Dr. Kayem

and I understand such explanation. /s/ SM

Gen eral ly, the law pres umes that a person who h as sign ed a document, after having an opportunity

to read it, is bound by his signature. See Solomon v. First Ten n. Bank , 774 S.W.2d 935, 943 (Tenn. Ct. App. 1989) . This pr esumption applies in informed consent cases; thus, the existence of a signed cons ent form gives r

ise to a presumption

that th e patien t gave his conse nt,
a bsent misrepresentati

on, inadequate di

sclosure, forg

ery, or the

patient’s lack of

capacity

. Se e Church v. Perales , ____ S.W.3d ____ (Tenn. Ct. App. forthcoming 2001). Ms. Mitchell signed the medical consent form on two separa te occ asions. Additionally, she did not introduce expert test imony to p rov e th at D r. K ayem fai led to d isc los e ri sks ass oci ate d wi th t he s urge ry t hat a reasonable

physician

woul d have disclosed u nder similar circ

umstances. Furth

er, Ms. Mitchell testified in her

dep osi tio n th at, had she been inf orm ed o f th e ri sks ass oci ate d wi th h er s urge ry, it was highly probable that she would have

had the surger

y but that she

would have sough

t a second opinion anda more experienc

ed surgeon. Be

cause Ms. Mitchel

l conceded in

her brief that she would indeed have undergone the same procedure even if the risks had been discl osed to herand because we believe that the languag

e in Ashe strictly refers to the medical procedure, we find that no question of fact remains for the trier of fact.

In summary, it is not disputed t hat the s urgery was necessary to avoid progression of the disease and ultimately

death. Ms. Mitchell was first diagnosed with papillary carcinoma in the neck
area in 1986. At the time

of her surger

y in May, 1997, she was approximately twenty -nine years of age. Recognizing he

r condition, she ult

imately conceded she wo

uld have had the su

rgery, r egardless of whether the risks

had been made kno

wn to her. She arg

ues that she would

have sought a more experienced

surgeon. However, Dr. Kayem states in his affidavit that the r isk of the complications suffered by Ms. Mitchell were

greater because of her previous surgeries; the surgery he performed required the removal of

the remainder of her thyroid tissue, which contained the parathyroid gland; her thyroid tissue and parathyroid gland were inextricably involved in the malignant tissue and thereforethe resultant hy pocalcem ia due to the removal of her last parathyroid gland was unavoidable; the only alternative to Ms. M itchell was the same surgical procedure performed by another surgeon; and the gener all y a ccepted occurrence rate for these unknown risks and complications of

the procedures applies uniformly to a ll qualified surg

eons, regardl

ess of their skill level. Therefore, the

possibility

of the risks and/or complications occurring to Ms. Mitchell would nothave been different in the h ands of another s

urgeon. The pos sibility of Ms. Mitchell’s outcome
was the same in the hands of any and all qualified surg e ons. These statements in his affidavit are not refuted.-7-

Acco rdi ngly, we find that no disputed, material fact exists to be resolved by the trier of fact; thus, Dr. Kayem is entitled to a judgmen t as a matter of law. We hereby reverse the trial court’s denial of Dr. Kayem’s motion for summary judg ment, and remand this cause for an entry of judgment in favor of Dr. Kayem. The costs of this appeal are taxed to the appellee, Ms. Sandra Mitchell, and her surety, for which execution may issue if necessary.

___________________________________ DAVID R. FARMER, JUDGE