# FILED
December 27, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE SUPREME COUR T OF TENNESSEE AT NASHVILLE

FOR PUBLICA

TION Filed: December 27, 1999
PATRICIA P. ASHE, ) ) PLAINTIFF/A PPELLANT, ) Davidson Circuit N o. 95C-58 ) v. ) Hon. Hamilton V. Gayden, J r., ) Judge RADIATION ONCOLOGY ) ASSOCIATES and STEVEN L. ) No. M1997-00036-SC-R11-CV STROUP, M.D., ) ) DEFENDANTS/APPELLEES. )

FOR APPELLANT : FOR APPELLEE :
DAVID RANDOLPH SMITH THOMAS A. WISEMAN III ROBERT BLAKE MENZEL Nashville Nashville



# O P I N I O N

COURT OF APPEALS AFFIRME D CASE REMANDED HOLDER, J.2 OPINION
We granted this appeal to address the appropr iate standard to be employed when assessing the issue of causation in a medical malpractice informed consent case. W e find that the objective standard as set forth in this opinion best balances a patient’s right to self-determination with the need for a realistic framework for

rational resolution of the i ssue of causation. We hold that the standard to be applied in informed consen t cases is whether a reasonable person in the patient’s position would have consente d to the procedure or treatment in question if adequ ately informed of all signi ficant perils. The decision of the Court of Appeals is affirmed, and the case is remanded to the trial court for a new trial.

BACKGROUND
The plaintiff, Patricia P. Ashe, w as diagnosed with breas t cancer in 1988. She ultimately underwent a double mastectomy and chemotherapy as treatment for her breast c ancer. In 1993 , she began experie ncing problems with a cough and a fever. She returned to her oncologist, Dr. Mi chael Kuzu, where she presented symptoms of fever, cough, pain in the abdo men, weight loss, decreased appetite, and irri tability. A chest x

-ray and a CT scan rev ealed the presence of a mass in the med ial left apex of her left lung.

The record indicates that the l ung tumor could possibly have been metastatic cancer from the breast . Ms. Ashe underwent sur gery, and the upper portion of her left lung was removed. She underwent c hemotherapy and was referred to the defendant, Dr. Stev en L. Stroup, for consideration of radiation therapy. Dr. Stroup tes tified that chemotherapy alone w ould be indicated if the3 lung tumor were metastas ized breast cancer. H e, however, opined that r adiation therapy would be indi cated if the lung cancer w ere primary as opposed to secondary cancer.
Dr. Stroup prescribed r adiation treatment for Ms. Ashe. She received a daily dose of 200 centigray for twenty-five days. He described the dose as a “midplane dose.” Ms. Ashe sustained “radiation myel itis” caused by a permane nt radiation injury to her spinal cord. She is now a paraplegic.
Dr. Stroup did not inform Ms . Ashe that the radiation treatment might result in a permanent injury to her spinal cord. According to Dr. Stroup, the risk that she would sustain a s pinal cord injury w as less than one percent. Mr s. Ashe proffered the testimony of her exper t, Dr. Carlos Perez . Dr. Perez opined that the risk of spinal cord in jury was one to tw

o percent. Dr. Perez testified that the applicable standard of care req uired physicians to w arn patients about the risk of radiation injury to the spinal cord.
Ms. Ashe filed the present action alleging claims for medical malpractice and lack o f infor med cons ent. At tr ial, she t estifie d that sh e would no t have consented to the radiation therapy had she been informed of the risk of paraly sis. De fense cou nsel on cross-e xamination pointed out t hat the p laintiff did equivocate in her deposition on the issue of consent. Her deposition testimony indicated that sh e did not know what she would have done had she been warned about the risk of spinal cord injury. She then testified on redirect examination as follows:
True, but the risk of being par alyzed and put in a w

heelchair for the rest of your life was no

t one of the items, if there was a ny discussed, because had he said that within a six- month period–which they sai d that would be the time frame for it to4 happen–had he said, ‘Patty, if y ou do this there is a ris k that you will be i n a wheelch air six mo nths from now ,’ I would have told h im, ‘I will take my c

hances.’ I would not hav e it done.
The trial court found that the plai ntiff’s trial testimony co nflicted with her deposition testimony regarding whether she w ould have consented to the procedure had she been warned of the risk of spinal cord inj ury. The trial court, therefore, struck the trial testimony and granted the defe ndant a directed verdict on the informed consent claim. The plai ntiff’s malpractice claim w ent to the jury. The jury was unable to r each a verdict, and a mist rial was declared.
The plaintiff appealed to the Court of Appeals. The Court of Appeals held that as p art of th e plainti ff’s inf ormed co nsent cla im she was re quired to prove that a rea sonable person kn owing of th e risk for spinal co rd injury wou ld have decided not to have had the proc edure performed. The Court held that the discrepancy between the trial testimony and depos ition testimony went to the issue of credibility and that the trial testimony should not have been stric ken. The Court of Appeals reversed the trial court’s gr ant of a directed verdict on the informed consent claim and remanded th e case for a new trial.

ANAL YSIS
The burden of proof on the standard of care element in medical malpractice informed consent cas es is controlled by Tenn. Code Ann. § 29-26-118. Pursuant to § 29-26-118, a plaintiff must prove by expert testimony that
the defendant did not supply appropr iate information to the patient in obtaining his informed consent to the procedure out of which plaintiff's claim allegedl y arose in accordance w ith the recognized standard of acceptable professional practice in the profession and5 in the specialty, if any , that the defendant practices in the community in which he practices or in similar communities.

Id. In addition, Tenn. Code Ann. § 29-26-115 requires that the pl aintiff prove the recognized standard of acc eptable professional practice,that the defendant acted with less than or

dinary and reasonable car e in accordance with that standard, and that the plaintiff sustain ed injuries as a result of the defendant’s negligent act or omiss ion. Accordingly,the plaintiff in an informed consent medical malpractice case has the burden of proving: (1) what a reasonable medical practitioner in the same or similar community would have disclos

ed to the patient about the risk posed by the proposed procedure or treatment; and (2) that the defendant departed from the norm. German v. Nichopoulos , 577 S.W.2d 197, 204 (T enn. Ct. App.1978).
This Court recently enunc iated a distinction betw een a lack of informed consent case and a pure medical ba ttery case. In Blanchard v. Kellum , 975 S.W.2d 522 (Tenn . 1998), this Court defined a medical battery as a case in which a doctor performs an u nauthorized procedure. Id. at 524. A medical battery may typica lly occur when: (1) a professional performs a p rocedure that the patient was unaware the doctor was going to perform; or (2) the procedure was performed on a part of the body other than that part explai ned to the patient (i.e., amputation of the wrong leg). Id. A lack of informed consent claim typically occurs when the patient w as aware that the procedur e was going to be performed but the patient was unaw are of the risk associated w ith the procedure. Id.

The case now before us is not a medi cal battery case. Ms . Ashe had authorized the radiation t reatment. Ms. Ashe, howev er, contends that she was6 not apprised of certain risks inherent in the treatment. Her claim, the refore, is premised on the lack of informed consent

.

The issue with whic

h we are now confronted i s whether an objectiv e, subjective, or a hy

brid subjective/objec

tive test shall be employ ed when assessing causation in medi cal malpractice informed consent cases. The issue is one of first impression in Tennessee. The majority of juri sdictions having addressed this issue follow an objective standard. A minority of jurisdic

tions having addressed the is sue follow the subjectiv e approach. One jurisdiction, Hawaii, employed a “modified objective standard” for informed consent cases for approximately ten years. Hawaii has now abandoned the modified approach in favor of the objective standar d. We shall now examine the vari ous approaches and the rationales behind these approaches.
Subjective Standard
The plaintiff urges this Court to follow the minority

rule or adopt a subjective standard w

hen evaluating causation in an informed consent case. Causation under the subjectiv e standard is established s olely by patient testimony. Patients must tes tify and prove that they would not have consented to the procedures had they been advised of the particular risk in question. See e.g. , Scott v. Bradford , 606 P.2d 554 (Okla. 1979); Wilkinson v. Vessey , 295 A.2d 676 (R.I. 197 2). Accord ingly, reso lution of causatio n under a subjecti ve standar d is premi sed elusi vely on the credibili ty of a pat ient’s te stimony.
The subjective standard engages in an abstract analysis. The abstract analysis not only pos

es a purely hypothetic

al question but seeks to ans wer the hypothetical question. One commentator has framed this hy pothetical question1 Jurisdiction s applying th e objec tive standa rd include : Fain v. Sm ith , 479 So.2d 1150 (Ala. 198 5); Aronson v. Harri man , 901 S.W .2d 832 ( Ark. 19 95); Hamilton v. Hard y , 549 P.2d 1099 (Colo. Ap p. 1976) ; Hamm er v. Mount Si nai Hosp. , 596 A.2d 1318 (C onn. Ap p. 1991) ; Bernard v. Char , 903 P.2d 667 (H aw. 199 5); Sherwood v. Carter , 805 P.2d 452 (Ida ho 199 0); Funke v. Fieldman , 512 P.2d 539 (Ka n. 1973) ; Sard v. Hardy , 379 A.2d 1014 (M d. 1977) ; W oolley v. Henderson , 418 A.2d 1123 (M e. 1980) ; Phillip s v. H ull , 516 So .2d 488 ( Miss. 19 87); Backlund v. Universit

y of Washington , 975 P.2d 950 (W ash. 19 99); Scaria v. St. Paul Fi re & Marine Ins.Co. , 227 N .W .2d 647 ( W is. 1975); Dixon v. Peters , 306 S.E.2d 477 (N.C. Ct. App. 1983 ). 7 as follows: “View

ed from the point at which [the patient] had to decide, woul d the patient have decided differently had he known somethin g he did not know?” Canterbury v. Spence, 464 F.2d 772, 790 (D.C. Cir. 1972) quoting Walt z & Scheuneman, Informed Consent to Therapy , 64 Nw.U.L.Rev. 628, 647 (1970).
Proponents of the subjective t est argue that a patient shoul d have the right to make medical determinations regardless of whether the determ ination is rational or reasonable. Gouse v. Cassel , 615 A.2d 331, 335 (Pa. 1992). Opponents, however, focus on the unfairness of allowing the issue of causation to turn on the credibility of the hindsight of a person seeki ng recovery after experiencing a most undes irable result. Sard v. Hardy , 379 A.2d 1014, 1025 (Md. 1977). “Patients ca nnot divorce their re- created decision process fr om hindsight.” F. Roz

ovsky, Consent to Treatment , § 1.13.4, 62-63 (1984). Accordingly, the sub

jective test potentiall

y places the physici an in jeopardy of the patient’s hindsight and bitterness. Sard , 379 A.2d at 1025. Moreover, the adoption of a subjective standar d could preclude recover y in an informed consent case in which th e patient died as a result of an unfor ewarned collateral consequence. Id.
Objective Standa rd
The majority 1 approach or the so-called objective standard emanates fro m the seminal decision in Canterbury v. Spence , 464 F.2d 772 (D.C. Cir. 1972). In Canterbury , the court held that causation in informed consent cases is be tter8 resolved on an objective basis “in terms of what a prudent person in the patient’s position would have dec ided if suitably informed of all perils bearing significance.” Id. at 791. The objec tive v iew recogniz

es that n either the plai ntiff nor the fact-finder can provide a definitive answer as to what the patient would have done had the patient know n of the particular risk pr ior to consenting to the procedure or treatment. Id. at 790. Accordingly, the patient’s testimony is relevant under an objecti ve approach, but the testimony is not controlling. Id. at 791.
Modified Objectiv e Standard
The modified objective standard w as first recognized i n Leyson v. Steuermann , 705 P.2d 37 (Haw. Ct. A pp. 1985). In Leyson , the Hawaii Court of Appeals attempted to balance patient’ s right to self-determination with the concerns espoused in Canterbury of subjecting a physician to a patient’s bitterness or hindsight following an undesirable result. The resulting test determined causation “from the viewpoint of the actua l patient acting rationally and reasonably.” Id. at 47, n. 10.
Approximately ten y

ears after the inception of the modified ap proach, the approach was declared to be onerous in application. In Bernard v. Char , 903 P.2d 667 (Haw. 1995), the H awaii Supreme Court elab orated that:

In its ef fort to a chieve the desired re sult of c ombinin g the obje ctive and subjective standards,the modified objective standar d injects at least one extra level

of complexity into the c ausation analysis. Under the objective stand ard, the factfinder must suspend his or her own viewpoint and step into the viewpoint of a reasonable person to objectively

assess the plaintiff-patient’s decision to undergo treatment. Under the subjective standard, the factfinder must simply assess the credibility of the plaintiff-patient when he or she invariably ass

erts that he or she woul d have declined treatment with proper disclos ure. Under the “modified objective standard,”9 however, the factfinder must first suspend his or her v iewpoint, then place himself or herself in the mind of the actual patient, and, then, while maintaining the viewpoint of the actual patient, try to determine what the actual pati ent would have decided about the proposed medical treatment or procedure, if the actual patient were acting rat ionally an d reason ably.

Id. at 673. Accordingly , the modified approach was abandoned in favor of the objective standard.
[D]espite being well -intentioned, [it] exact s too much of a cost in the form of added complexity in seek ing to solve problems associated with the preexisti ng objective and subjec tive standards whil e at the same time remaining faithful to the laudab le purposes behind such standards.

Id. The Court held: (1) that the objective standard provided “a better, simpler, and more equitable analytical process;” and (2) that the objective standard ultimately addressed the c oncerns which prompted the creation of the modified test.

CONCLUSION
We agree with the majority of juri sdictions having addr essed this issue and hold that the objective approac h is the be tter app roach. T he objec tive approach circumvents the need to place the fact-finder in a pos ition of deciding whether a speculativ

e and perhaps emotional answer to a purely hypothetic

al question shall dictate the outcome of the litigation. The o bjective standard is consistent with the pre

vailing standard in

negligence cases w

hich measures the conduct of the person in question with that of a reasonab le person in like circumstances. Restatement ( Second) of Torts § 283, p. 12 (1965); see also 1 S. Pegalis & H. Wachsman, American Law of Medical Malpractice , § 2.15, 103- 104 (1980) (criticizing subjective test as being out of step with general10 negligence concepts). The objective test prov ides a realistic framew

ork for rational resolution of the is sue of causation. We, therefore, believe that causation may best be assessed in informed consent cases by the finder of fact determining how nondisclosure would affect a reasonable person in the plaintiff’s position.
We also are of the opinio n that the objective test appropriately respects a patient ’s right to s elf-det erminat ion. The finder o f fact m ay conside r and give weight to the patient’s

testimony as to whether the patient would have c onsented to the pro cedure u pon full disclosu re of the risks. W hen appl ying the ob jective standard, the finder of fact may also take into account the character istics of the plaintiff including the plai ntiff’s idiosyncrasies,fears, age, medical conditi on, and religious beliefs. Bernard v. Char , 903 P.2d 667, 674 (Haw. 1995) ; Fain v. Smith , 479 S.2d 1150, 1155 (Ala. 1985); Backlund v. Univer sity of Washington , 975 P.2d 950 (Wash. 1999). Accordingly , the objective standard affords the ease of applying a uniform standar d and yet maintains the flexi bility of allowing the finder of fact to make appropriate adj ustments to accommodate the individual character

istics and idiosyncr

acies of an individual pati ent. We, therefore, hold that the standard to be app lied in informed consent cases is whether a reasonable pers on in the patient’s position would have consented to the procedure or treatment in q uestion if adequately informed o f all significant perils.
In applying the objecti ve standard to the facts of this case, we agree wi th the Court of Appeals that the jur y should not have been prec luded from deciding the issue of informed consent. Under the obje ctive analysis, the plaintiff’s testimony is only a fact or when determining the issue of informed consent. The dispositive issue i s not whether Ms. Ashe w ould herself have chosen a different11 course of treatment. The issue is whether a reasonable pat ient in Ms. Ashe’s position would have c

hosen a different course of treatment. The j ury, therefore, 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.
The judgment of the Court of Appeals rev ersing the trial cour

t is affirmed. The case is remanded for a new tr ial consistent with this opinion. Costs of the appeal to the Court of Appeals shal l be as previously taxed; costs of the appeal to this Court shall be taxed against the plaintiff for which execution may issue if
necessa ry.

JANICE M. HOLDER, JUSTICE
Concurring: Anderson, C.J. Drowota, Birch, and Barker, J.J.