Day on Torts
Where plaintiff signed an informed consent document and failed to present any expert testimony regarding the sufficiency or circumstances of the document, summary judgment for defendant on plaintiff’s informed consent HCLA claim was affirmed.
In Jarnagin v. Vanderbilt University Medical Center, No. M2022-01012-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2023), plaintiff met with defendant doctor about a possible procedure related to potential kidney cancer. Plaintiff asserted that during that meeting, the doctor said the only possible side effect was infection at the insertion site, yet the doctor asserted that she went through all of the possible side effects. The notes from the visit supported the doctor’s testimony, and defendants produced an informed consent form signed by plaintiff on the day of the visit that listed the potential side effects of the procedure. Plaintiff stated that he did not specifically remember signing the document, but that the doctor’s assistant had asked him to sign paperwork that explained what the doctor had discussed with him.
After the procedure, plaintiff suffered a complication and later filed this HCLA informed consent action. Defendants moved for summary judgment on the basis of the signed informed consent document, which the trial court granted, finding that the only expert testimony presented by plaintiff did not address the sufficiency or circumstances of the signed document. Summary judgment was affirmed on appeal.
On appeal, plaintiff argued that the information in the informed consent form was misrepresented by the doctor and the assistant, that he could not read the document due to an eye condition, and that the document was not read aloud to him (although there was no evidence that defendants knew he could not read). Defendants argued, however, that the informed consent form created a presumption of informed consent and that plaintiff had failed to rebut that presumption.
The HCLA states that a plaintiff making an informed consent claim “shall prove as required by § 29-26-115(b) that the defendant did not supply appropriate information to the patient in obtaining informed consent…in accordance with the recognized standard of acceptable professional practice…” Tenn. Code Ann. § 29-26-118. Here, plaintiff presented expert proof, but that expert did not know about the informed consent paperwork, did not see the informed consent form signed by plaintiff, and specifically stated that his opinion might change if he found out that plaintiff had been presented with and signed an informed consent form. He also specifically reserved the right to change his opinion if defendants produced a signed informed consent form.
The trial court found that the lack of an informed consent form “was foundational” to plaintiff’s expert’s opinion, and the Court of Appeals agreed. The Court wrote that plaintiff “has failed to offer any expert testimony addressing whether the manner in which the informed consent document came to be signed in this case is in accordance with the standard of care.” The Court found that even if the informed consent form were not considered conclusive on the issue, plaintiff had not presented expert testimony on “whether the manner of obtaining the signature was inconsistent with the standard of care.” Summary judgment was therefore affirmed.
This opinion was released 1.5 months after oral arguments in this case.
Note: Chapter 54, Section 2 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.
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