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§47.14 Duty of Hospital to Get Informed Consent

The Case: Bryantv. HCA Health Services of No. Tennessee , 15 S.W.3d 804 (Tenn. 2000).

The Basic Facts: Plaintiff brought a medical malpractice action against a hospital and others after undergoing two unsuccessful surgeries to correct kyphosis of the spine. The second surgery involved an ongoing research study in which Plaintiff consented to participating in. The surgeries were performed by a doctor who was not an employee of the hospital.

The Bottom Line:

  • "We granted this appeal to address whether a hospital has a legal duty to obtain the informed consent of a patient undergoing a surgical procedure ordered and performed by a non-employee doctor. We hold that Tenn. Code Ann. § 29‑26‑118 does not require a hospital to obtain the informed consent of a patient. A hospital, however, may assume an independent legal duty to obtain informed consent under certain circumstances not present in this case." 15 S.W.3d at 806.
  • "The issue is one of first impression in Tennessee.FN1
    FN1 The vast majority of jurisdictions having previously addressed this issue have declined to impose upon a hospital the general duty to obtain informed consent. Krane v. Saint Anthony Hosp. Sys., [738 P.2d 75 (Colo. Ct. App. 1987)]; Petriello v. Kalman, 576 A.2d 474 (Conn. 1990); Parr v. Palmyra Park Hosp., [228 S.E.2d 596 (Ga. Ct. App. 1976)]; Pickle v. Curns, 435 N.E.2d 877 (Ill. App. 1982);Pauscher v. Iowa Methodist Med. Ctr., 408 N.W.2d 355 (Iowa 1987); Ackerman v. Lerwick, [676 S.W.2d 318 (Mo. Ct. App. 1984)]; Bing v. Thunig, 143 N.E.2d 3 (N.Y. 1957); Kershaw v. Reichert, 445 N.W.2d 16 (N.D. 1989); Goss v. Oklahoma Blood Inst., [856 P.2d 998 (Okla. Civ. App. 1990)]; Ritter v. Delaney, 790 S.W.2d 29 (Tex. App. 1990); Cross v. Trapp, 294 S.E.2d 446 (W. Va. 1982)."
    Id . at 808.
  • "The informed consent statute does not clearly delineate whether hospitals have a duty to procure informed consent to surgical procedures performed by non-employee doctors. The statute employs the term 'defendant' when defining the elements of an informed consent cause of action. See Tenn. Code Ann. § 29‑26‑118 ('the defendant did not supply appropriate information to the patient . . . .'). The term 'defendant' would, at first blush, seemingly include a hospital. The term 'defendant' would also seem to include: pharmacists, registered nurses, physician's assistants, nurse anesthetists, anesthetists, emergency medical technicians, or any other person or entity that may commit an act of medical negligence." Id. at 809.
  • "The statute requires that the 'defendant' provide 'information' in 'accordance with the . . . specialty, if any, that the defendant practices . . . .' Tenn. Code Ann. § 29‑ 26‑118. A hospital does not practice the specialties of non-employee physicians. Moreover, a hospital 'shall not restrict or interfere with medically appropriate diagnostic or treatment decisions.' Tenn. Code Ann. § 63‑6‑204(d)(1)(A). Accordingly, the language of the statute suggests that the legal duty to obtain consent is imposed only on the physician who orders or directs the surgical procedure. An interpretation requiring the hospital to provide 'information' in 'accordance with the . . . specialty, if any, that the [surgeon] practices . . . .' potentially renders absurd results. Such a broad interpretation would seemingly impose a similar duty upon registered nurses, medical technicians, or other health-care providers involved in the patient's care to procure a patient's consent prior to a surgical procedure. An overly broad interpretation, therefore, could interfere with the physician-patient relationship." Id.
  • "We believe that Tenn. Code Ann. § 29‑26‑118 focuses on the physician ordering the surgical procedure. Mere status as one involved in a patient's care is insufficient to trigger a statutory duty under the informed consent statute. We hold that Tenn. Code Ann. § 29‑26‑118 generally does not require a hospital to procure a patient's informed consent to surgical procedures ordered and performed by non-employee doctors." Id. at 810.
  • "The plaintiff argues that the defendant assumed an independent duty to procure her informed consent by participating in a monitored investigational study involving implantation of pedicle screws." Id.
  • "The plaintiff has not demonstrated that this off-label use was subject to the federal study or mandatory monitoring. The defendant, therefore, was not required by federal regulations to obtain Ms. Bryant's informed consent." Id. at 811.
  • "We hold that a hospital generally is not required to procure a patient's informed consent to surgical procedures ordered and performed by non-employee doctors. The hospital, however, may assume an independent legal duty to obtain the informed consent of a patient undergoing a procedure that is a part of an investigational study monitored by the FDA. The requisite circumstances necessary to impose this independent legal duty upon the hospital have not been met by the facts presented in this appeal." Id.

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

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