1Ms. 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 subsequently removed by Dr. Kayem.

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

Patient with a history of papillary carcinoma underwent a fine needle aspiration which confirmed

a diagnosis of cancer in her neck region. Patient underwent surgery to remove the cancerous tissue

which resulted in hypoparathyroidism and injury to her recurrent laryngeal nerve, risks commonly

associated with the procedure. Patient brought informed consent action against doctor, claiming that,

had the inherent risks of the procedure been disclosed to her, she would have sought a second

opinion and had the procedure 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 Interlocutory Appeal; Judgment of the Circuit Court Reversed; and

Remanded

DAVID R. FARMER,J., delivered the opinion of the court, in which ALAN E. HIGHERS and HOLLY K.

LILLARD, J.J., joined.

Thomas W. Lawrence, JR. and R. Blake Menzel, Nashville, Tennessee, for the appellant, Marc J.

Kayem, M.D.

Tracy W. Moore, Columbia, Tennessee, for the appellee, Sandra Mitchell.

OPINION

Sandra Mitchell (Ms. Mitchell), a licensed L.P.N. with a history of papillary carcinoma,1

sought treatment from Dr. Marc Kayem (Dr. Kayem), an ear, nose and throat specialist, for a marblesized nodule on the right side of her esophagus which had been present for approximately six

months. Dr. Kayem ordered a biopsy of the nodule in the form of a fine needle aspiration, the results
2Ms. Mitchell initially sued both Dr. Kayem and Dr. William R. Stewa rt, d/b/a Co lumbia Ear, No se & Th roat;

however, Ms. Mitchell agreed that Dr. Stewart should be dismissed from this action pursuant to Rule 41 of the Tennessee

Rules of Civ il Proced ure, and the tria l court entered an order to that effect on Au gust 27, 19 99. 

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of which confirmed that the nodule was cancerous. Dr. Kayem advised Ms. Mitchell that surgery

was necessary to treat the cancer. Five days before the surgery was scheduled, Ms. Mitchell visited

Dr. Kayem’s office 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 centimeter lump and three nodules in the right

side of Ms. Mitchell’s neck. Additionally, Dr. Kayem removed all remaining thyroid tissue,

including Ms. Mitchell’s last parathyroid gland, because the tissue and gland were inextricably

involved in the malignant tissue. 

Ms. Mitchell returned to Dr. Kayem’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 prescribed medication to control Ms. Mitchell’s tetany, and he recommended that Ms.

Mitchellstartradiation therapy. Ms. Mitchell visited Dr. Hainsworth, an oncologist, for her radiation

therapy still complaining of hoarseness. Dr. Hainsworth suspected that Ms. Mitchell was suffering

from hypoparathyroidism and a paralyzed vocal cord caused by the surgery. The paralysis of her

vocal cord was confirmed by Dr. Weiss. Ms. Mitchell underwent another surgery for a Silastic

implant procedure to medialize her vocal cord which returned Ms. Mitchell’s voice to full capacity.

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 cord paralysis and loss of parathyroid function associated

with the surgery. 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 deposition that, 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 surgery at all, Ms.

Mitchell testified that she did not necessarily mean 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

had the surgery to treat her cancer. In her brief, Ms. Mitchell conceded that she would have

undergone the surgery whether or not the inherent risks of the procedure were disclosed, because

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 states that surgery was the only treatment available to Ms.

Mitchell in order for her to avoid progression of the cancer. He further states that potential injury

to the recurrent laryngeal nerve, which affects the vocal cords, 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
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four prior surgeries in which all but one of her parathyroid glands were removed. Dr. Kayem asserts

that the removal of the remaining parathyroid gland was unavoidable. 

Based upon the facts in evidence, Dr. Kayem filed a motion for summary judgment. In light

of the Tennessee Supreme 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 consented to the surgery had she been advised of the

significant risk of injury to the laryngeal nerve and its effect on the vocal cord, and the potential loss

of her parathyroid function and the effects thereof. In the Ashe opinion, the court stated the issue

to be “whether a reasonable 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 course of treatment, i.e. a second opinion or surgery by a different physician.” Dr. Kayem

appealed the trial court’s denial of his motion for summary judgment pursuant to Rule 9 of the

Tennessee Rules of Appellate Procedure.

Our review of a motion for summary judgment involves purely a question of law, so no

presumption of correctness attaches to the lower court’s judgment, and our task is confined to

reviewing the record to determine whether the requirements 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

(Tenn. 1997). Rule 56.03 of the Tennessee Rules of Civil Procedure provides that summary

judgment is appropriate when: (1) there is 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 motion

satisfies these requirements lies with the moving party. See Bain, 936 S.W.2d at 622. When the

moving party makes a properly supported motion, however, the burden then shifts to the nonmoving

party to set forth specific facts that establish the existence of disputed, material facts which must be

resolved by the trier of fact. See id. On appeal, we must view the evidence in the light most

favorable to the nonmoving party and draw all reasonable inferences in his favor. Summary

judgment should be granted only when both the facts and the inferences to be drawn from the facts

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 when the

patient is aware that a procedure will be performed but is unaware of the risks associated with such

procedure. See Ashe v. Radiation Oncology Assocs., 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 applicable
3

Section 29-26-118 of the Tennessee Code provides

Proving inadequacy of consent.- In a malpractice action, the plaintiff shall prove by evidence as required by

§ 29-26-1 15(b) tha t the defenda nt did not sup ply appro priate information to the patient in obtaining informed

consent (to the procedure out of which plaintiff’s claim allegedly arose) in accordance with the recognized

standard of accepta ble professional practi ce in the 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).

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standard of care3

 and that a reasonably prudent person in the patient’s position would not have

consented to the procedure if suitably informed of the inherent risks.

A physician is required to disclose enough information about the procedure involved and its

attendant risks to enable the patient to make an intelligent decision and thereby give 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 physician must disclose the nature of the patient’s

ailment; the nature of and the reasons for the treatment or procedure; the risks involved 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 prospects 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 standard of care

[applicable to the defendant health care provider].” See id. (quoting Cardwell, 724 S.W.2d 739,

749). A physician is not, however, required to disclose every aspect of the proposed treatment 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 informed consent cases. Accordingly, a patient must also prove that 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 this

standard, the failure by a physician to disclose significant, inherent risks of the proposed procedure

is, however, not a direct cause of the injury suffered by the patient unless a reasonably prudent

person would not have consented to the treatment if informed of those risks. See Simons v.

Georgiade, 286 S.E.2d 596 (N.C. Ct. App. 1982). The Ashe court further instructed that a patient’s

testimony as to whether he would have consented to the proposed medical procedure 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 account the personal

characteristics of the patient, such as his idiosyncracies, fears, religious beliefs, age, and medical

condition. See Ashe, 9 S.W.3d at 124. Accordingly, the Ashe court determined that the standard

in informed consent 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 been told

of the potential loss of her parathyroid gland and the potential damage to her recurrent laryngeal
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nerve, she would not have had the surgery. When asked if she would not have had surgery at all, Ms.

Mitchell testified that she did not necessarily mean 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

had the surgery to treat her cancer. In her brief, Ms. Mitchell conceded that she would have

undergone the surgery whether or not the inherent risks of the procedure were disclosed, because

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 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

and her 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 absence of negligence. Ms. Mitchell failed to present expert medical testimony 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 the same if performed by any competent

surgeon.

Ms. Mitchell contends that, while she would not have declined the procedure, shewould have

chosen another physician to perform the surgery had she been fully informed. She interprets the

Ashe court’s language of “different course of treatment” to include not only a different medical

procedure, but also choosing a different surgeon to perform the same medical procedure. We

disagree. Treatment is defined as “the action or manner of treating a patient medically or surgically”

while procedure is defined as “a particular way of accomplishing something or of acting.” MerriamWebster’s Medical Desk Dictionary 728, 576 (1993). As we interpret the language in Ashe,

treatment or procedure refers 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 have consented to the radiation therapy had the risk of paralysis been

disclosed.” Id. at 124 (emphasis added). 

Ms. Mitchell signed a medical consent form in which she gave her express consent to the

medical procedure performed by Dr. Kayem. The consent form contained the following language:

2. I consent to the performance of operations and procedures in addition to or

different from those now contemplated, whether or not arising from presently

unforeseen conditions, which the above named doctor or his associates or

assistants may consider necessary or advisable in the course of the operation.

. . . .
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4. The nature and purpose of the operation, possible alternative methods of

treatment, the risks involved, the possible consequences, and the possibility

of complications, such as necrosis of tissue, infections, unassociated heart

attack, cardiac arrest, uncontrollable bleeding, allergic reactions or blood

clots, have been explained to me by

Dr. Kayem and I understand such explanation. /s/ SM 

Generally, the law presumes that a person who has signed a document, after having an

opportunity to read it, is bound by his signature. See Solomon v. First Tenn. Bank, 774 S.W.2d

935, 943 (Tenn. Ct. App. 1989). This presumption applies in informed consent cases; thus, the

existence of a signed consent form gives rise to a presumption that the patient gave his consent,

absent misrepresentation, inadequate disclosure, forgery, or the patient’s lack of capacity. See

Church v. Perales, ____ S.W.3d ____ (Tenn. Ct. App. forthcoming 2001). Ms. Mitchell signed the

medical consent form on two separate occasions. Additionally, she did not introduce expert

testimony to prove that Dr. Kayem failed to disclose risks associated with the surgery that a

reasonable physician would have disclosed under similar circumstances. Further, Ms. Mitchell

testified in her deposition that, had she been informed of the risks associated with her surgery, it was

highly probable that she would have had the surgery but that she would have sought a second opinion

and a more experienced surgeon. Because Ms. Mitchell conceded in her brief that she would indeed

have undergone the same procedure even if the risks had been disclosed to her and because we

believe that the language 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 that the surgery 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 surgery in May, 1997, she was approximately twenty-nine years of

age. Recognizing her condition, she ultimately conceded she would have had the surgery, regardless

of whether the risks had been made known to her. She argues that she would have sought a more

experienced surgeon. However, Dr. Kayem states in his affidavit that the risk 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

therefore the resultant hypocalcemia due to the removal of her last parathyroid gland was

unavoidable; the only alternative to Ms. Mitchell was the same surgical procedure performed by

another surgeon; and the generally accepted occurrence rate for these unknown risks and

complications of the procedures applies uniformly to all qualified surgeons, regardless of their skill

level. Therefore, the possibility of the risks and/or complications occurring to Ms. Mitchell would

not have been different in the hands of another surgeon. The possibility of Ms. Mitchell’s outcome

was the same in the hands of any and all qualified surgeons. These statements in his affidavit are

not refuted.
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Accordingly, we find that no disputed, material fact exists to be resolved by the trier of fact;

thus, Dr. Kayem is entitled to a judgment as a matter of law. We hereby reverse the trial court’s

denial of Dr. Kayem’s motion for summary judgment, 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