Ashe v. Radiation Oncology Associates

Ms. Ashe sustained “radiation myelitis” caused by a permanent radiation injury to her spinal cord. She became a paraplegic.  Id. at 120.  The plaintiff alleged Ms. Ashe’s doctor did not inform Ms. Ashe that the radiation treatment might result in a permanent injury to her spinal cord. According to her doctor, the risk that she would sustain a spinal cord injury was less than one percent. Mrs. Ashe proffered the testimony of her expert, Dr. Carlos Perez.  Dr. Perez opined that the risk of spinal cord injury was one to two percent. Dr. Perez testified that the applicable standard of care required physicians to warn patients about the risk of radiation injury to the spinal cord. Id.

At trial, Ms. Ashe testified that she would not have consented to the radiation therapy had she been informed of the risk of paralysis.  Id.

The trial court found that the plaintiff’s 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, therefore, struck the trial testimony and granted the defendant a directed verdict on the informed consent claim. The plaintiff’s malpractice claim went to the jury. The jury was unable to reach a verdict, and a mistrial was declared.  Id. at 120-121.

The plaintiff appealed to the Court of Appeals. The Court of Appeals held that as part of the plaintiff’s 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 have had the procedure performed. The Court held that the discrepancy between the trial testimony and deposition testimony went to the issue of credibility and that the trial testimony should not have been stricken. The Court of Appeals reversed the trial court’s grant of a directed verdict on the informed consent claim and remanded the case for a new trial.  Id. at 121.

On appeal, the Tennessee Supreme Court affirmed the Court of Appeals.  The Supreme Court first noted the distinction between a lack of informed consent case and a pure medical battery case. In Blanchard v. Kellum, 975 S.W.2d 522 (Tenn. 1998), the Supreme Court defined a medical battery as a case in which a doctor performs an unauthorized procedure. Id. at 524. A medical battery may typically occur when: (1) a professional performs a procedure that the patient was unaware the doctor was going to perform; or (2) the procedure was performed on a part of the body other than that part explained to the patient (i.e., amputation of the wrong leg). Id. A lack of informed consent claim typically occurs when the patient was aware that the procedure was going to be performed but the patient was unaware of the risk associated with the procedure. Id.

The Court observed that because Ms. Ashe had authorized the radiation treatment, the case concerned lack of informed consent, rather than medical battery. Id. at 121.

The question before the Supreme Court thus became what standard to adopt for assessing causation in an informed consent case.  Prior to Ashe, the Supreme Court had not clearly ruled on this issue.  

One approach, termed the “subjective” approach, focuses solely on patient testimony.  Under this approach, Patients must testify and prove that they would not have consented to the procedures had they been advised of the particular risk in question.  The Court held that the subjective approach was potentially unfair to physicians: “the subjective test potentially places the physician in jeopardy of the patient’s hindsight and bitterness.”  Id. at 122.  

A second approach, the so-called “objective” standard,  analyzes causation in terms of what a “prudent person in the patient’s position would have decided if suitably informed of all perils bearing significance.”  Id.  Under this approach, he patient’s testimony is relevant under an objective approach, but the testimony is not controlling.  

A third approach, known as the “modified objective” standard, determines causation “from the viewpoint of the actual patient acting rationally and reasonably.”  Id. at 123.  The Court noted that this standard is unduly complex and onerous to apply.  Id.  Citing with approval a case from the Hawaii Supreme Court, the Tennessee Supreme Court agreed that the objective standard provides a better, simpler, and more equitable analytical process.

Adopting the objective approach, the Court explained how the test should be applied:

“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.”  Id. at 123-124.

In applying this test to Ms. Ashe’s case, the Court held:  

“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.

The case was remanded for a new trial consistent with the Court’s ruling.  The parties then reached a confidential settlement.

After Ashe, there remains an unanswered legal question regarding causation in informed consent cases.  The question concerns whether a plaintiff in an informed consent must prove (in addition to the “Ashe causation” that a reasonable patient in the plaintiff’s position would have chosen a different course of treatment) that the failure to disclose the risk proximately caused the injury to the plaintiff.  There is support for the proposition that the answer is no, that “Ashe causation” is all that is required.  In Shadrick v. Coker, the Tennessee Supreme Court observed:

“When the health care provider performs the treatment or procedure without the requisite informed consent of the patient, liability attaches for the resulting injuries regardless of whether those injuries resulted from negligence . . .This is because the doctrine of lack of informed consent is based upon the tort of battery, not negligence, since the treatment or procedure was performed without having first obtained the patient’s informed consent.

963 S.W.2d 726, 732, (Tenn. 1998).