Picture of John Day

§47.27 Informed Consent

The Case: Ashe v. Radiation Oncology Associates , 9 S.W.3d 119 (Tenn. 1999).

The Basic Facts: This case involves a claim for informed consent against a doctor after the patient sustained radiation myelitis and was rendered paraplegic following radiation treatment for a lung tumor.

The Bottom Line:

  • "We granted this appeal to address the appropriate standard to be employed when assessing the issue of causation in a medical malpractice informed consent case." 9 S.W.3d at 119.
  • "[T]he 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 proposed procedure or treatment; and (2) that the defendant departed from the norm. German v. Nichopoulos, 577 S.W.2d 197, 204 (Tenn. Ct. App. 1978)." Id. at 121.
  • "The majorityFN1 approach or the so-called objective standard emanates from 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 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.' Id. at 791. The objective view recognizes that neither the plaintiff nor the fact-finder can provide a definitive answer as to what the patient would have done had the patient known of the particular risk prior to consenting to the procedure or treatment. Id. at 790. Accordingly, the patient's testimony is relevant under an objective approach, but the testimony is not controlling. Id. at 791.
    FN1 Jurisdictions applying the objective standard include: Fain v. Smith, 479 So.2d 1150 (Ala. 1985); Aronson v. Harriman, 901 S.W.2d 832 (Ark. 1995); Hamilton v. Hardy, [549 P.2d 1099 (Colo. Ct. App. 1976)]; Hammer v. Mount Sinai Hosp., [596 A.2d 1318 (Conn. App. Ct. 1991)]; Bernard v. Char, 903 P.2d 667 (Haw. 1995); Sherwood v. Carter, 805 P.2d 452 (Idaho 1990); Funke v. Fieldman, 512 P.2d 539 (Kan. 1973); Sard v. Hardy, 379 A.2d 1014 (Md. 1977); Woolley v. Henderson, 418 A.2d 1123 (Me. 1980);Phillips v. Hull, 516 So.2d 488 (Miss. 1987); Backlund v. University of Washington, 975 P.2d 950 (Wash. 1999); Scaria v. St. Paul Fire & Marine Ins. Co., 227 N.W.2d 647 (Wis. 1975); Dixon v. Peters, 306 S.E.2d 477 (N.C. Ct. App. 1983)."
    Id. at 122.
  • "We agree with the majority of jurisdictions having addressed this issue and hold that the objective approach is the better approach. The objective approach circumvents the need to place the fact-finder in a position of deciding whether a speculative and perhaps emotional answer to a purely hypothetical question shall dictate the outcome of the litigation. The objective standard is consistent with the prevailing standard in negligence cases which measures the conduct of the person in question with that of a reasonable 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 general negligence concepts). The objective test provides a realistic framework for rational resolution of the issue 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." Id. at 123.
  • "We also are of the opinion that the objective test appropriately respects a patient's right to self-determination. 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. Bernard v. Char, 903 P.2d 667, 674 (Haw. 1995); Fain v. Smith, 479 S.2d 1150, 1155 (Ala. 1985); Backlund v. University of Washington, 975 P.2d 950 (Wash. 1999). 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." Id. at 123-24.
  • "In applying the objective standard to the facts of this case, we agree with the Court of Appeals that the jury should not have been precluded from deciding the issue of informed consent. Under the objective analysis, the plaintiff's testimony is only a factor when determining the issue of informed consent. The dispositive issue is not whether Ms. Ashe would herself have chosen a different course of treatment. The issue is whether a reasonable patient in Ms. Ashe's position would have chosen a different course of treatment. The jury, 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." Id. at 124.

Other Sources of Note: Mitchell v. Kayem, 54 S.W.3d 775, 782 (Tenn. Ct. App. 2001) (holding that the Ashe rationale strictly refers to a Plaintiff's choice to undergo the medical procedure and not to whether the Plaintiff would have sought a second opinion and would have chosen a more experienced surgeon if adequately informed);Hawk v. Chattanooga Orthopedic Group, Inc., 45 S.W.3d 24 (Tenn. Ct. App. 2000) (extended discussion on informed consent cases); Church v. Perales, 39 S.W.3d 149 (Tenn. Ct. App. 2000) (another extensive discussion of the law and the impact of signing "implied consent" forms.).

Recent Cases: 

White v. Beeks, No. E2012-02443-SC-R11-CV, 2015 WL 2375458 (Tenn. May 18, 2015) (in informed consent case, plaintiff’s expert should not be limited to testifying only about those risks that actually occurred); Hinkle v. Kindred Hosp., No. M2012-02499-COA-R3-CV, 2012 WL 3799215 (Tenn. Ct. App. Aug. 31, 2012) (hospital employees following orders of a physician do not have an independent duty to obtain informed consent from the patient); McDonald v. Shea, No. W2010-02317-COA-R3-CV, 2012 WL 504510 (Tenn. Ct. App. Feb. 16, 2012) (affirming denial of directed verdict where plaintiff was given pamphlet and form disclosing risk of reduced hearing from procedure, but plaintiff could not read forms because she did not have her glasses and doctor verbally told her “let’s just count on your hearing staying the same”).

Miller v. Dacus , 231 S.W.3d 903 (Tenn. 2007) (ruling that a child born alive has an independent cause of action for injuries caused by failure of physician to obtain informed consent from child's mother during labor).

After an accident, many injury victims and their families want more information on the accident and their legal rights. Consequently, many of them have found their way to these pages. While we are happy you are here, please understand Day on Torts: Leading Cases in Tennessee Tort Law was written to be a quick, invaluable reference for Tennessee tort lawyers. While the book provides the leading case for more than 300 tort law subjects and thousands of related case citations, it is not a substitute for personalized legal advice from a qualified lawyer.

Rather than researching these legal issues alone, we urge you to contact one of our award-winning lawyers who can sit down with you, review your case, answer your questions and clearly explain your rights and your options in a no-cost, no-obligation consultation. Our experienced attorneys handle all personal injury and wrongful death cases on a contingency basis, so we only get paid if we win. If for any reason you are unable to come to our office, we will gladly come to you.

To schedule an appointment, contact us online or call us at 615-742-4880 or toll-free at 866-812-8787.



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.

To order a copy of the book, visit www.dayontortsbook.com. John also blogs regularly on key issues for tort lawyers. To subscribe to the Day on Torts blog, visit www.dayontorts.com.

Client Reviews
Everything was great. You guys are a great representative. I was satisfied with everything. Truly appreciate John Day and his hard-working staff.
★★★★★
We thought that you did an excellent job in representing us in our lawsuit. We would recommend you to anyone. Mitch Deese
★★★★★
The Law Offices of John Day is, without a doubt, the best in Nashville! They treated me with the utmost respect and tended to my every need. No question went unanswered. I was always kept informed of every step in the process. I received phenomenal results; I couldn't ask for more. I would definitely hire the Law Offices of John Day again. Anthony Santiago
★★★★★
I would definitely recommend to anyone to hire John Day's law firm because everyone was helpful, made everything clear and got the job done. I am satisfied with how my case was handled. June Keomahavong
★★★★★
It's been a long battle but this firm has been very efficient and has done a remarkable job for me! I highly recommend them to anyone needing legal assistance. Everyone has always been very kind and kept me informed of all actions promptly. Linda Bush
★★★★★
I had a great experience with the Law Offices of John Day. The staff was very accommodating, and my phone calls/emails were always responded to in a timely manner. They made the entire process very easy and stress-free for me, and I had confidence that my case was in good hands. I am very happy with the results, and I highly recommend! Casey Hutchinson
★★★★★