Expert Answer:NHC case against South Carolina Case Analysis Pape

  

Solved by verified expert:a. Chapter 12 (pages 396 – 413) in our textbook, Legal and Ethical Issues for Health Professionals by George D. Pozgar (4th Edition).b. Read the Ashe v. Radiation Oncology Assoc. casec. Read the National Health Corp. v. South Carolina Dept. of Health case.
ashe_v._radiation_oncology_assocs_9_s_w_3d_119_1999.pdf

national_health_corp_v._south_carolina_department_of_health__298_s.c._373_1989.pdf

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Page 1
9 S.W.3d 119
(Cite as: 9 S.W.3d 119)
BACKGROUND
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 tumor, 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 remanded.
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 causation. 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 informed 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.
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 possibly 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 “midplane 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
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 2
9 S.W.3d 119
(Cite as: 9 S.W.3d 119)
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 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.
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.
ANALYSIS
[1] The burden of proof on the standard of care element 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 testimony that
the defendant did not supply appropriate information to the patient in obtaining his informed
consent to the procedure out of which plaintiff’s
claim allegedly arose in accordance with the recognized 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 negligent 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. Nichopoulos, 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 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 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 subjective/objective test shall be employed when assessing
causation in medical malpractice informed consent
cases. The issue is one of first impression in Tennessee. The majority of jurisdictions having addressed
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 3
9 S.W.3d 119
(Cite as: 9 S.W.3d 119)
this issue follow an objective standard. A minority of
jurisdictions having addressed the issue follow the
subjective approach. One jurisdiction, Hawaii, employed a “modified objective standard”*122 for informed 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 analysis. The abstract analysis not only poses a purely hypothetical question but seeks to answer the hypothetical question. One commentator has framed this hypothetical question as follows: “Viewed from the
point at which [the patient] had to decide, would the
patient have decided differently had he known something 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 decision 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 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, 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. Fieldman, 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
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 4
9 S.W.3d 119
(Cite as: 9 S.W.3d 119)
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 Hawai‘i 362, 903 P.2d 667 (1995), the Hawaii Supreme
Court elaborated that:
In its effort to achieve the desired result of combining 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 assess the plaintiff-patient’s decision to undergo
treatment. Under the subjective standard, the factfinder 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 suspend 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 patient, try to determine what the actual patient would
have decided about the proposed medical treatment
or procedure, if the actual patient were acting rationally 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 analytical 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 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.
[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 procedure 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 plaintiff 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 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.
[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 analysis, the plaintiff’s testimony is only a factor when
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 5
9 S.W.3d 119
(Cite as: 9 S.W.3d 119)
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.
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 necessary.
ANDERSON, C.J., DROWOTA, BIRCH,
BARKER, J.J., concur.
Tenn.,1999.
Ashe v. Radiation Oncology Associates
9 S.W.3d 119
and
END OF DOCUMENT
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
National Health Corp. v. South Carolina Dept. of Health and
298 S.C. 373, 380 S.E.2d 841
S.C.App.,1989.
April 24, 1989 (Approx. 9 pages)
Top of Form
298 S.C. 373, 380 S.E.2d 841, 26 Soc.Sec.Rep.Serv. 474
Court of Appeals of South Carolina.
NATIONAL HEALTH CORPORATION, d/b/a National Health Care Center of Georgetown, Appellant,
v.
SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL and Waccamaw River
Health Care Center, Inc., Respondents.
No. 1326.
Heard Jan. 19, 1989.
Decided April 24, 1989.
Department of Health and Environmental Control denied health corporation’s application for a
certificate of need to build a long-term care nursing facility and granted a certificate of need to another
corporation. The health corporation brought an action seeking judicial review of final administrative
decision of the Department. The Court of Common Pleas, Richland County, Tom J. Ervin, J., affirmed the
Department’s decision, and health corporation appealed. The Court of Appeals held that: (1) the Board
of Health and Environmental Control followed the proper …
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