Issue: Did the trial court properly limit a medical expert’s testimony at trial regarding the informed consent information, required by the standard of care, to disclosure of only those risks that actually resulted in injury?
Facts: Patient was allegedly injured after receiving surgery by Doctor. Plaintiff sought to have a medical expert testify regarding potential risks of the procedure. The trial court granted Doctor’s motion in limine to exclude the expert from testifying about potential risks of the procedure, other than those related to the injury actually suffered.
Appellate Decision: In a divided opinion, the majority affirmed the verdict in favor of Doctor and found no error in the exclusion of testimony, holding that an undisclosed risk is only material if it actually results in injury to the plaintiff. Judge Susano, concurring, wrote that “it cannot be said that but for the [Doctor’s] failure to advise the [Patient] of the risks involved in [Expert’s] excluded testimony, the injuries complained of by the [Patient] would not have occurred.” Judge Swiney, dissenting, wrote that, under the majority’s holding, the jury “will be mislead as to what risks the actual acceptable standard of care required,” and the standard of care offered to the jury will vary depending on what risk(s) come to pass in a particular case. Moreover, the informed consent law requires a plaintiff to prove that “the defendant did not supply appropriate information to the patient in obtaining informed consent” without distinguishing whether such information is the actual cause of injury. T.C.A. § 29-26-118.
Review Granted: May 15, 2014.
Prediction: Ben thinks the supreme court may follow the dissent’s reasoning and hold that the testimony should not have been excluded. To modify Judge Swiney’s hypothetical example of a patient not being told of a 1% chance of partial paralysis and a 50% chance of death, suppose there is a 10% chance of 9 different serious complications. While a patient may risk the 10% chance of suffering whichever complication should arise, he or she would be far less likely to risk a 90% chance of some serious complication, and a jury should be able to take the full risk into account when deciding causation.