                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                September 19, 2013 Session

                   IKE J. WHITE, III v. DAVID A. BEEKS, M.D.

                   Appeal from the Circuit Court for Bradley County
                       No. V-07-554    J. Michael Sharp, Judge


             No. E2012-02443-COA-R3-CV-FILED-DECEMBER 9, 2013


D. M ICHAEL S WINEY, J., dissenting.


               I respectfully dissent from the decision of the majority to affirm the Trial Court.
I believe the Trial Court did commit reversible error when it limited Plaintiff’s medical
expert’s testimony at trial regarding the standard of care in this health care liability informed
consent action. Specifically, I do not believe that the Plaintiff’s expert’s testimony on what
risks should have been disclosed to the Plaintiff to meet the acceptable standard of care for
informed consent should have been limited to disclosure of only those risks that actually
came to pass.

            I agree with the majority when it states in discussing Ashe v. Radiation
Oncology Associates, 9 S.W.3d 119 (Tenn. 1999) that:

       The Supreme Court found that the “majority” approach, the objective standard,
       emanated from the Canterbury decision, wherein the D.C. Circuit Court of
       Appeals held that “causation in informed consent cases is better resolved on
       an objective basis ‘in terms of what a prudent person in the patient’s position
       would have decided if suitably informed of all perils bearing significance.’”
       Ashe, 9 S.W.3d at 122 (quoting Canterbury v. Spence, 464 F2d 772, 791 (D.C.
       Cir.1972)).

(emphasis added).

               The majority goes on to quote our Supreme Court further:

       The finder of fact may consider and give weight to the patient’s testimony as
       to whether the patient would have consented to the procedure upon full
       disclosure of the risks. When applying the objective standard, the finder of
       fact may also take into account the characteristics of the plaintiff including the
       plaintiff’s idiosyncrasies, fears, age, medical condition, and religious beliefs.
       Accordingly, the objective standard affords the ease of applying a uniform
       standard and yet maintains the flexibility of allowing the finder of fact to make
       appropriate adjustments to accommodate the individual characteristics and
       idiosyncrasies of an individual patient. We, therefore, hold that the standard
       to be applied in informed consent cases is whether a reasonable person in the
       patient’s position would have consented to the procedure or treatment in
       question if adequately informed of all significant perils. [Ashe, 9 S.W.3d at
       123-24].

(emphasis added) (footnote omitted).

                The relevant aspect here of our Supreme Court’s holding in Ashe on informed
consent is that the finder of fact, here a jury, has to determine whether or not “a reasonable
person in the patient’s position would have consented to the procedure or treatment in
question if adequately informed of all significant perils.” Ashe, 9 S.W.3d at 124 (emphasis
added). What the majority’s opinion does, and what was done by this Court in Bryant v.
Bauguss, No. 03A01-9603-CV-00105, 1996 WL 465539, 1996 Tenn. App. LEXIS 473
(Tenn. Ct. App. Aug. 16, 1996), no appl. perm. appeal filed, is to hold that a plaintiff in a
health care liability informed consent case must prove that the health care provider deviated
from the acceptable standard of professional practice by not disclosing all significant perils
as required by the acceptable standard of professional practice. At the same time, the
plaintiff will be prohibited from informing the trier of fact exactly what all those significant
perils were that the acceptable standard of professional practice required that the patient be
told about. In short, the finder of fact will not be presented with evidence concerning the
actual standard of care concerning informed consent in a health care liability case such as
now before us, but instead will be misled into believing that informed consent required only
that the patient be told about the particular risk or risks that actually came to pass before he
decided whether to undergo the treatment or procedure. This means that the finder of fact
will be mislead as to what risks the actual acceptable standard of care required a health care
provider to inform his patient about in order to obtain informed consent. Further, this means
that the courts have determined that the acceptable standard of care concerning informed
consent as to the exact same treatment or procedure will vary from case to case dependent
upon what risk or risks actually come to pass in a particular case.

              While hypothetical examples often are dangerous, I believe a simple one is
appropriate here. In this example, a physician proposes to a patient that the patient have a
particular type of procedure. This procedure has only two significant perils or risks

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associated with it, and it is undisputed that the acceptable standard of professional practice
is that a physician disclose and discuss both perils or risks with the patient in order to obtain
the patient’s informed consent. Risk number 1 is a one percent (1%) chance of partial
paralysis. Risk number 2 is a fifty percent (50%) chance the patient will die on the operating
table. In this example, the physician discloses neither of these two significant risks as
required by the acceptable standard of care for informed consent. The procedure is
performed and the hypothetical patient suffers partial paralysis. The patient files a health
care liability informed consent action claiming that if he had been given information
concerning the risks as required by the acceptable standard of care, including being informed
of the fifty percent (50%) chance of dying on the operating table, he never would have
consented to the procedure in the first place. Under the majority’s decision, the finder of fact
is going to be presented not with what the acceptable standard of care actually required as
to informed consent, but instead only a portion of the acceptable standard of care as concerns
the disclosure of information, in this hypothetical the one percent chance of partial paralysis,
and then incorrectly told that is the acceptable standard of care. The finder of fact then,
somehow, is to make an objective determination of whether or not the patient would have
consented to the procedure if he had been fully informed of all significant risks in
compliance with the acceptable standard of care even though the finder of fact has been
misled as to what the acceptable standard of care required the defendant to disclose to the
patient concerning the risks in order to obtain the patient’s informed consent, and has been
told only of the duty to disclose the risk which came to pass, i.e., the partial paralysis.

               In this example, the jury might well decide, objectively, that the patient would
have consented to the procedure even if he had been told of the one percent (1%) chance of
partial paralysis because the potential benefits outweighed this risk. It might very well be an
entirely different answer by the jury as to whether or not the patient, objectively, would have
consented to the procedure if the jury had been presented with what the acceptable standard
of care actually required the patient be told about the risks in order to obtain the hypothetical
patient’s informed consent, which would include the fifty percent (50%) risk of his dying on
the operating table.

                I respectfully contend that the majority’s opinion is not consistent with what
the law requires in a health care liability informed consent action. What risks the actual
acceptable standard of care requires a health care provider to inform the patient about is
immaterial under the majority’s decision. The finder of fact, here the jury, is going to be told
that it is being presented with evidence as to what the acceptable standard of care is as to
obtaining informed consent when in reality it is being presented only with an incomplete
portion of what information concerning risks must be provided to a patient to obtain
informed consent. Such a position and result is inconsistent with the requirements of the
relevant statute:

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             In a health care liability action, the plaintiff shall prove by evidence as
      required by § 29-26-115(b) that the defendant did not supply appropriate
      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 acceptable professional practice in the profession and in the
      specialty, if any, that the defendant practices in the community in which the
      defendant practices and in similar communities.
Tenn. Code Ann. § 29-26-118 (Supp. 2013).

                Under my position as to what is required by Tenn. Code Ann. § 29-26-118 and
relevant case law, the first question presented to the trier of fact is whether or not the health
care provider informed the patient of all significant risks as required to be disclosed to the
patient to satisfy the acceptable standard of care. If the answer to that is yes, the patient loses
the informed consent lawsuit. If the answer to that is no, the patient still has to convince the
trier of fact that the patient, under an objective standard, would not have consented to the
medical treatment or procedure if he had been informed of all significant risks in compliance
with the acceptable standard of care. If the patient fails to convince the trier of fact under
the objective standard that he would not have consented to the treatment or procedure if he
had been informed of all significant risks sufficient to satisfy the acceptable standard of care,
the patient loses.

                 I believe to hold as the majority has held makes it impossible for the finder of
fact to determine, utilizing an objective standard, whether the patient would have consented
to the treatment or procedure upon full disclosure of all the risks as required by the
acceptable standard of care. Under the majority’s position, the question presented to the trier
of fact instead will be whether the patient would have consented to the procedure upon
disclosure of only the risk or risks that later came to fruition. That, I respectfully submit, is
not the law under Tenn. Code Ann. § 29-26-118 and applicable case law. Respectfully, I
believe the majority’s opinion changes Tenn. Code Ann. § 29-26-118 from requiring the
health care provider to obtain “informed consent” to instead requiring the health care
provider to obtain only “semi-informed consent” in that the question to be presented to the
trier of fact is no longer whether the health care provider adequately informed the patient of
all significant perils as required by the acceptable standard of care but instead only whether
the health care provider informed the patient of the particular risks that happened later to
come to pass.

               I take no issue with the general discussion of proximate cause and cause in fact
as discussed by the majority. It is my view, however, that Tenn. Code Ann. § 29-26-118
provides that in a health care liability informed consent case proximate cause will be shown
if: first,

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       the plaintiff shall prove by evidence as required by § 29-26-115(b) that the
       defendant did not supply appropriate information to the patient in obtaining
       informed consent (to the procedure out of which plaintiff’s claim allegedly
       rose) in accordance with the recognized standard of acceptable professional
       practice in the profession and in the specialty, if any, that the defendant
       practices in the community in which the defendant practices or in similar
       communities.

Tenn. Code Ann. 29-26-118 (Supp. 2013). And second, the trier of fact then determines,
applying an objective standard, that the patient “would [not] have consented to the procedure
or treatment in question if adequately informed of all significant perils.” Ashe, 9 S.W.3d at
124. In short, under the relevant statutory and case law, cause in fact and proximate cause
may well be the same in a health care liability informed consent case such as the one before
us.

            For these reasons, I dissent from the majority’s opinion. I would vacate the
judgment and remand the case for a new trial.




                                                         ______________________________
                                                         D. MICHAEL SWINEY, JUDGE




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