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Supreme Court of Tennessee,

at Nashville. Patricia P. ASHE, Plaintiff/Appellant,

v. RADIATION ONCOLOGY ASSOCIATES and

Steven L. Stroup, M.D., Defendants/Appellees. Dec. 27, 1999.

Rehearing Denied Jan. 7, 2000. Patient brought informed consent claim against doctor

after she underwent radiation treatment for lung tu-

mor, sustained radiation myelitis, and was rendered

paraplegic. The Circuit Court, Davidson County,

Hamilton V. Gayden Jr., J., entered directed verdict

for doctor. Patient appealed and the Court of Appeals,

Cain, J., reversed and remanded. On doctor's appeal,

the Supreme Court, Holder, J., held that: (1) objective

standard was adopted for informed consent cases, and

(2) whether reasonable person in patient's position

would have chosen different course of treatment was

issue for jury. Judgment of Court of Appeals affirmed and case re-

manded.

West Headnotes *120 O P I N I O N

HOLDER, J. 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. We find that the objective standard as set forth in

this opinion best balances a patient's right to

self-determination with the need for a realistic

framework for rational resolution of the issue of cau-

sation. We 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 in-

formed of all significant perils. The decision of the

Court of Appeals is affirmed, and the case is remanded

to the trial court for a new trial.

BACKGROUND The plaintiff, Patricia P. Ashe, was diagnosed with

breast cancer in 1988. She ultimately underwent a

double mastectomy and chemotherapy as treatment

for her breast cancer. In 1993, she began experiencing

problems with a cough and a fever. She returned to her

oncologist, Dr. Michael Kuzu, where she presented

symptoms of fever, cough, pain in the abdomen,

weight loss, decreased appetite, and irritability. A

chest x-ray and a CT scan revealed the presence of a

mass in the medial left apex of her left lung. The record indicates that the lung tumor could possi-

bly have been metastatic cancer from the breast. Ms.

Ashe underwent surgery, and the upper portion of her

left lung was removed. She underwent chemotherapy

and was referred to the defendant, Dr. Steven L.

Stroup, for consideration of radiation therapy. Dr.

Stroup testified that chemotherapy alone would be

indicated if the lung tumor were metastasized breast

cancer. He, however, opined that radiation therapy

would be indicated if the lung cancer were primary as

opposed to secondary cancer. Dr. Stroup prescribed radiation treatment for Ms.

Ashe. She received a daily dose of 200 centigray for

twenty-five days. He described the dose as a “mid-

plane dose.” Ms. Ashe sustained “radiation myelitis”

caused by a permanent radiation injury to her spinal

cord. She is now a paraplegic. Dr. Stroup did not inform Ms. Ashe that the radiation

treatment might result in a permanent injury to her

spinal cord. According to Dr. Stroup, 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. Ms. Ashe filed the present action alleging claims for

medical malpractice and lack of informed consent. At

trial, she testified that she would not have consented to

the radiation therapy had she been informed of the risk

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of paralysis. Defense counsel on cross-examination

pointed out that the plaintiff did equivocate in her

deposition on the issue of consent. Her deposition

testimony indicated that she did not know what she

would have done had she been warned about the risk

of spinal cord injury. She then testified on redirect

examination as follows:

True, but the risk of being paralyzed and put in a

wheelchair for the rest of your life was not one of

the items, if there was any discussed, because had he

said that within a six-month period-which they said

that would be the time frame for it to happen-had he

said, ‘Patty, if you do this there is a risk that you will

be in a wheelchair six months from now,’ I would

have told him, ‘I will take my chances.’ I would not

have it done. The trial court found that the plaintiff's trial testimony

conflicted with her deposition testimony regarding

whether she *121 would have consented to the pro-

cedure had she been warned of the risk of spinal cord

injury. The trial court, therefore, struck the trial tes-

timony and granted the defendant a directed verdict on

the informed consent claim. The plaintiff's malprac-

tice claim went to the jury. The jury was unable to

reach a verdict, and a mistrial was declared. 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 pro-

cedure performed. The Court held that the discrepancy

between the trial testimony and deposition testimony

went to the issue of credibility and that the trial tes-

timony 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.

ANALYSIS [1] The burden of proof on the standard of care ele-

ment in medical malpractice informed consent cases is

controlled by Tenn.Code Ann. § 29-26-118. Pursuant

to § 29-26-118, a plaintiff must prove by expert tes-

timony that

the defendant did not supply appropriate infor-

mation to the patient in obtaining his informed

consent to the procedure out of which plaintiff's

claim allegedly arose in accordance with the rec-

ognized standard of acceptable professional practice

in the profession and in the specialty, if any, that the

defendant practices in the community in which he

practices or in similar communities. Id. In addition, Tenn.Code Ann. § 29-26-115 requires

that the plaintiff prove the recognized standard of

acceptable professional practice, that the defendant

acted with less than ordinary and reasonable care in

accordance with that standard, and that the plaintiff

sustained injuries as a result of the defendant's negli-

gent act or omission. Accordingly, 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 proposed procedure or treatment; and (2) that the

defendant departed from the norm. German v. Ni-

chopoulos, 577 S.W.2d 197, 204 (Tenn. Ct.

App.1978). This Court recently enunciated a 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), this 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 in-

formed consent claim typically occurs when the pa-

tient was aware that the procedure was going to be

performed but the patient was unaware of the risk

associated with the procedure. Id. The case now before us is not a medical battery case.

Ms. Ashe had authorized the radiation treatment. Ms.

Ashe, however, contends that she was not apprised of

certain risks inherent in the treatment. Her claim,

therefore, is premised on the lack of informed consent. The issue with which we are now confronted is

whether an objective, subjective, or a hybrid subjec-

tive/objective test shall be employed when assessing

causation in medical malpractice informed consent

cases. The issue is one of first impression in Tennes-

see. The majority of jurisdictions having addressed

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this issue follow an objective standard. A minority of

jurisdictions having addressed the issue follow the

subjective approach. One jurisdiction, Hawaii, em-

ployed a “modified objective standard”*122 for in-

formed consent cases for approximately ten years.

Hawaii has now abandoned the modified approach in

favor of the objective standard. We shall now examine

the various approaches and the rationales behind these

approaches.

Subjective Standard The plaintiff urges this Court to follow the minority

rule or adopt a subjective standard when evaluating

causation in an informed consent case. Causation

under the subjective standard is established solely by

patient testimony. Patients must testify and prove that

they would not have consented to the procedures had

they been advised of the particular risk in question.

See e.g., Scott v. Bradford, 606 P.2d 554 (Okla.1979);

Wilkinson v. Vesey, 110 R.I. 606, 295 A.2d 676

(1972). Accordingly, resolution of causation under a

subjective standard is premised elusively on the

credibility of a patient's testimony. The subjective standard engages in an abstract analy-

sis. The abstract analysis not only poses a purely hy-

pothetical question but seeks to answer the hypothet-

ical question. One commentator has framed this hy-

pothetical question as follows: “Viewed from the

point at which [the patient] had to decide, would the

patient have decided differently had he known some-

thing he did not know?” Canterbury v. Spence, 464

F.2d 772, 790 (D.C.Cir.1972) quoting Waltz &

Scheuneman, Informed Consent to Therapy, 64

Nw.U.L.Rev. 628, 647 (1970). Proponents of the subjective test argue that a patient

should have the right to make medical determinations

regardless of whether the determination is rational or

reasonable. Gouse v. Cassel, 532 Pa. 197, 615 A.2d

331, 335 (1992). Opponents, however, focus on the

unfairness of allowing the issue of causation to turn on

the credibility of the hindsight of a person seeking

recovery after experiencing a most undesirable result.

Sard v. Hardy, 281 Md. 432, 379 A.2d 1014, 1025

(1977). “Patients cannot divorce their re-created de-

cision process from hindsight.” F. Rozovsky, Consent

to Treatment, § 1.13.4, 62-63 (1984). Accordingly, the

subjective test potentially places the physician in

jeopardy of the patient's hindsight and bitterness.

Sard, 379 A.2d at 1025. Moreover, the adoption of a

subjective standard could preclude recovery in an

informed consent case in which the patient died as a

result of an unforewarned collateral consequence. Id.

Objective Standard The majority

FN1 approach or the so-called objective

standard emanates from the seminal decision in Can-

terbury 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, 321

Ark. 359, 901 S.W.2d 832 (1995); Hamilton

v. Hardy, 37 Colo.App. 375, 549 P.2d 1099

(1976); Hammer v. Mount Sinai Hosp., 25

Conn.App. 702, 596 A.2d 1318 (1991);

Bernard v. Char, 79 Hawai‘i 362, 903 P.2d

667 (1995); Sherwood v. Carter, 119 Idaho

246, 805 P.2d 452 (1990); Funke v. Field-

man, 212 Kan. 524, 512 P.2d 539 (1973);

Sard v. Hardy, 281 Md. 432, 379 A.2d 1014

(1977); Woolley v. Henderson, 418 A.2d

1123 (Me.1980); Phillips v. Hull, 516 So.2d

488 (Miss.1987); Backlund v. University of

Washington, 137 Wash.2d 651, 975 P.2d 950

(1999); Scaria v. St. Paul Fire & Marine Ins.

Co., 68 Wis.2d 1, 227 N.W.2d 647 (1975);

Dixon v. Peters, 63 N.C.App. 592, 306

S.E.2d 477 (1983).

*123 Modified Objective Standard The modified objective standard was first recognized

in Leyson v. Steuermann, 5 Haw.App. 504, 705 P.2d

37 (1985). In Leyson, the Hawaii Court of Appeals

attempted to balance patient's right to

self-determination with the concerns espoused in

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Canterbury of subjecting a physician to a patient's

bitterness or hindsight following an undesirable result.

The resulting test determined causation “from the

viewpoint of the actual patient acting rationally and

reasonably.” Id. at 47, n. 10. Approximately ten years after the inception of the

modified approach, the approach was declared to be

onerous in application. In Bernard v. Char, 79 Ha-

wai‘i 362, 903 P.2d 667 (1995), the Hawaii Supreme

Court elaborated that:

In its effort to achieve the desired result of com-

bining the objective and subjective standards, the

modified objective standard injects at least one extra

level of complexity into the causation analysis.

Under the objective standard, the factfinder must

suspend his or her own viewpoint and step into the

viewpoint of a reasonable person to objectively as-

sess the plaintiff-patient's decision to undergo

treatment. Under the subjective standard, the fact-

finder must simply assess the credibility of the

plaintiff-patient when he or she invariably asserts

that he or she would have declined treatment with

proper disclosure. Under the “modified objective

standard,” however, the factfinder must first sus-

pend his or her viewpoint, then place himself or

herself in the mind of the actual patient, and, then,

while maintaining the viewpoint of the actual pa-

tient, try to determine what the actual patient would

have decided about the proposed medical treatment

or procedure, if the actual patient were acting ra-

tionally and reasonably. Id. at 673. Accordingly, the modified approach was

abandoned in favor of the objective standard. [D]espite being well-intentioned, [it] exacts too

much of a cost in the form of added complexity in

seeking to solve problems associated with the

preexisting objective and subjective standards while

at the same time remaining faithful to the laudable

purposes behind such standards. Id. The Court held: (1) that the objective standard

provided “a better, simpler, and more equitable ana-

lytical process;” and (2) that the objective standard

ultimately addressed the concerns which prompted the

creation of the modified test.

CONCLUSION

[2] We agree with the majority of jurisdictions having

addressed this issue and hold that the objective ap-

proach is the better approach. The objective approach

circumvents the need to place the fact-finder in a po-

sition of deciding whether a speculative and perhaps

emotional answer to a purely hypothetical question

shall dictate the outcome of the litigation. The objec-

tive 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 deter-

mining how nondisclosure would affect a reasonable

person in the plaintiff's position. [3] 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 pro-

cedure upon full disclosure of the *124 risks. When

applying the objective standard, the finder of fact may

also take into account the characteristics of the plain-

tiff including the plaintiff's idiosyncrasies, fears, age,

medical condition, and religious beliefs. Bernard v.

Char, 79 Hawai‘i 362, 903 P.2d 667, 674 (1995); Fain

v. Smith, 479 So.2d 1150, 1155 (Ala.1985); Backlund

v. University of Washington, 137 Wash.2d 651, 975

P.2d 950 (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 stand-

ard 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 ques-

tion if adequately informed of all significant perils. [4] 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 analy-

sis, the plaintiff's testimony is only a factor when

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determining the issue of informed consent. The dis-

positive 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 de-

cide whether a reasonable person in Ms. Ashe's posi-

tion would have consented to the radiation therapy had

the risk of paralysis been disclosed. The judgment of the Court of Appeals reversing the

trial court is affirmed. The case is remanded for a new

trial consistent with this opinion. Costs of the appeal

to the Court of Appeals shall be as previously taxed;

costs of the appeal to this Court shall be taxed against

the plaintiff for which execution may issue if neces-

sary. ANDERSON, C.J., DROWOTA, BIRCH, and

BARKER, J.J., concur. Tenn.,1999. Ashe v. Radiation Oncology Associates 9 S.W.3d 119 END OF DOCUMENT