Consent: Tennessee to Follow an Objective Standard for Informed Consent-Ashe V. Radiation Oncology Assocs

Article excerpt

Consent: Tennessee to Follow an Objective Standard of Informed Consent-Ashe v. Radiation Oncology Assoc.1--The Supreme Court of Tennessee held that the standard to determine informed consent is whether a reasonable person in the patient's position would have consented to the procedure or treatment if adequately informed of all significant risks.2 The plaintiff, Patricia Ashe, was diagnosed with breast cancer in 1988. She underwent a double mastectomy and chemotherapy. However, in 1993, she discovered that the cancer had moved to her lungs. Ashe was referred to the defendant, Dr. Steven Stroup, who prescribed radiation treatment. Subsequently, Ashe sustained radiation myelitis caused by a permanent radiation injury to her spinal cord and was rendered paraplegic. Ashe then brought an informed consent claim against Dr. Stroup.3

The trial court found that Ashes trial testimony conflicted with her deposition testimony regarding whether she would have consented to the procedure had she been warned of the risk of spinal cord injury. The trial court struck the trial testimony stating that she would not have undergone the procedure and granted Dr. Stroup a directed verdict on the deposition testimony where Ashe stated she was unsure whether she would have undergone the procedure. Ashe appealed and the appellate court held that as part of Ashes informed consent claim she was required to prove that a reasonable person knowing of the risk for spinal cord injury would have decided not to undergo the procedure. The court held that the discrepancy between the trial testimony and the deposition testimony went to the issue of credibility and that the trial court testimony should not have been stricken. The appellate court reversed the trial court's grant of a directed verdict and remanded the case for a new trial. The Supreme Court of Tennessee granted appeal to address the appropriate standard to be employed when assessing the issue of causation in a medical malpractice informed consent case.4

Under Tennessee law, 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 disclosed to the patient about the risk posed by the prospective treatment; (2) that the defendant departed from the norm; and (3) that this departure caused the plaintiff to suffer harm.5 The issue faced by the Supreme Court of Tennessee was whether an objective, subjective or a hybrid subjective/objective test should be employed when assessing the issue of causation in informed consent cases. …