The Michigan Court of Appeals has ruled that “[a]s a matter of law … a physician’s raw success rates do not constitute risk information reasonably related to a patient’s medical procedure.”
There apparently was no (or little) evidence of affirmative misrepresentation on the issue.
A verdict for the plaintiff was reversed and the case remanded for trial.
Under Tennessee law, recall that the law of informed consent is that a patient is entitled to hear only that information required by the applicable standard of care. That is, a patient is not entitled to know what the reasonably prudent patient would want to know under the same or similar circumstances but only what the standard of care applicable to physican requires the physician to tell the patient. Therefore, in Tennessee, this is a non-issue except in the context of a violation of the standard of care (and I doubt that the standard of care requires a physician to convey his or her success rate for any procedure) or an affirmative misrepresentation.
So why include this opinion on this blog? First, it is interesting to see how another state addresses the issue of informed consent. Second, the language and tone of the opinion in this case is unlike what we typically see in an appellate opinion in Tennessee. It is very critical of the plaintiff and the trial judge. It helps us remember how fortunate we are to have a judiciary that does not routinely lash out the parties or lower courts.