Ashe v. Radiation Oncology Associates

FILED
July 31, 1998
Cecil W. Crowson
Appellate Court Clerk
PATRICIA P. ASHE, )
)
Plaintiff/Appellant, ) Appeal No.
) 01-A-01-9710-CV-00563
v. )
) Davidson Circuit
RADIATION ONCOLOGY ASSOCIATES ) No. 95C-58
and STEVEN L. STROUP, M.D., )
)
Defendants/Appellees. )
COURT OF APPEALS OF TENNESSEE
APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE HAMILTON V. GAYDEN, JR., JUDGE
DAVID RANDOLPH SMITH
ROBERT BLAKE MENZEL
David Randolph Smith & Associates
Nashville, Tennessee 37203
ATTORNEYS FOR PLAINTIFF/APPELLANT
THOMAS A. WISEMAN, III
NationsBank Plaza, Suite 1900
414 Union Street
Nashville, Tennessee 37219-1782
ATTORNEY FOR DEFENDANTS/APPELLEES
REVERSED AND REMANDED
WILLIAM B. CAIN, JUDGE
OPINION
This case was tried before a jury in the Circuit Court in Davidson
County on two issues to-wit: (1) informed consent and (2) professional
negligence.
On the issue of informed consent the trial court directed a verdict for
the defendant at the conclusion of the plaintiff's proof. On the issue of
professional negligence a mistrial was declared when the jury was unable to
agree on a verdict.
The case is now before this court on the sole issue of informed consent.
Plaintiff Patricia Ashe was diagnosed with breast cancer in 1988. She
underwent a double mastectomy and chemotherapy. In July of 1993 chest x-ray
and CT scan confirmed the presence of cancer in her left lung. As a result,
doctors performed surgery at Baptist Hospital on July 30, 1993 to remove the
upper portion of her left lung. She resumed chemotherapy under the care of Dr.
Michael Kuzur. Dr. Kuzur was also consulting with the defendant, Dr. Steven
L. Stroup regarding the possible need for radiation therapy. At this time the
physicians were unable to determine with certainty whether her lung cancer was
metastatic from her 1988 breast cancer or was primary lung cancer unrelated to
the previous breast cancer. If Mrs. Ashe suffered from primary lung cancer,
radiation therapy would significantly increase her chances for survival for five
years and beyond.
Radiation therapy involves the use of a photon beam to kill cancer
cells. Radiation, however, causes chemical changes to both normal cells and
cancer cells. The intent for use of this therapy is to cause only sublethal damage
to the normal cells but lethal damage to the cancer cells which are less resistant
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to radiation.
On her first visit to Dr. Stroup Mrs. Ashe received a complete
explanation of the procedure and went through a "dress rehearsal" of radiation
therapy.
Thereafter Mrs. Ashe submitted herself to radiation therapy. In this
case Mrs. Ashe sustained radiation injury to her spinal cord resulting in paralysis
of her lower extremities.
All expert witnesses agreed that any patient undergoing such radiation
therapy is at some risk for spinal cord injury. Plaintiff's expert, Dr. Carlos Perez,
testified that this risk at the dosage received by Mrs. Ashe was from one to two
percent. Other medical testimony asserted this percentage to be much smaller,
but, for the purpose of reviewing the trial court action in directing a verdict for
Dr. Stroup we are required to accept the testimony of Dr. Perez.
It is admitted that Dr. Stroup did not inform Patricia Ashe of this risk
of spinal cord injury prior to administering radiation therapy.
Plaintiff testified both by pre-trial deposition and at the trial. She was
questioned in deposition as to what she would have decided about radiation
therapy had she been informed of the possibility of spinal cord injury. At trial
she testified again on the same subject. Her testimony at trial differed
significantly from her previous testimony by deposition and at the conclusion of
the plaintiff's proof the trial court directed a verdict against her on the informed
consent issue applying the "rule of cancellation" stated in Taylor v. Nashville
Banner Publishing Co., 573 S.W.2d 476, 482 (Tenn. Ct. App. 1978). Says the
trial judge:
The court however, does grant your motion on the issue of
informed consent on the same basis that you made for Dr.
Perez. It's the opinion of the court that the plaintiff has
irreconcilably and totally contradicted herself in her
deposition and in testimony here today. So I will grant the
motion on the issue of informed consent.
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We are thus called upon in this appeal to answer three pertinent
questions:
1. Did the plaintiff's proof offered at trial present a jury question as
to whether or not Dr. Stroup obtained "informed consent" of Patricia Ashe under
the standards of T.C.A. 29-6-118 before administering radiation therapy.
2. If a jury question is presented as to "informed consent" is the
plaintiff's only burden as to causation to establish that the radiation therapy in
fact caused the paralysis.
3. If, in addition to radiation-paralysis causation, plaintiff must
further prove causation in a consent context, does the "rule of cancellation"
justify a directed verdict against her.
I. Did the plaintiff's proof offered at trial present a jury question
as to whether or not Dr. Stroup obtained "informed consent"
of Patricia Ashe under the standards of T.C.A. 29-6-118
before administering radiation therapy.
Plaintiff's qualified expert Dr. Carlos Perez testified that the standard
of care in procuring informed consent required the disclosure by Dr. Stroup of
the small but potentially catastrophic risk of spinal cord injury from radiation
therapy. Although his testimony is hotly disputed by expert witnesses offered
for the defendant, we are reviewing a directed verdict for the defendant wherein
the evidence must be construed most favorably to the plaintiff. Cecil v. Hardin,
575 S.W.2d 268 (Tenn. 1978).
In discussing informed consent this court stated in German v.
Nichopolous, 577 S.W.2d 197, 202 (Tenn. Ct. App. 1978):
Liability predicated on the doctrine of informed consent is
not dependent upon the existence of negligence in the
performance of a physical act. Liability is predicated upon
negligence of the physician in the failure to reasonably
advise the patient regarding the treatment recommended.
This particular language is reiterated by the court of appeals in Bryant
v. Bauguss, 1996 WL 465539 (Tenn. App. 1996) and in Blanchard v. Kellum,
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1997 WL 147525 (Tenn. App. 1997). We note that permission to appeal in
Blanchard v. Kellum was granted by the Supreme Court on September 29, 1997.
The reference in Nichopolous to the physician failing to reasonably
advise the patient regarding the treatment recommended in terms of "negligence"
is inconsistent with Cardwell v. Bechtol, 724 S.W.2d 739 (Tenn. 1987). Said the
supreme court in Cardwell:
Although this provision is part of the malpractice statute
and while determining whether the Defendant failed to obtain
informed consent is dependent upon the standard of care of
the profession or specialty, if informed consent is not
effectively obtained, the defendant's departure from the
standard of care is not negligence but battery because "the
doctrine of battery [is] applicable to cases involving
[treatment] performed without informed or knowledgeable
consent." Ray v. Scheibert, 484 S.W.2d 63, 71 (Tenn.App.),
cert. denied (Tenn.1972)(emphasis in original). As observed
in Lanford v. York, 224 Tenn. 503, 457 S.W.2d 525 (1970),
malpractice "'is based on lack of care or skill in the
performance of services contracted for, and [battery] on
wrongful trespass on the person regardless of the skill
employed. The assertion of one is the denial of the other.'"
224 Tenn. at 510-511, 457 S.W.2d at 528 (citation omitted).
[9] We found it necessary to note this because the
Plaintiffs alleged and the trial court instructed the jury on
"negligent failure to obtain informed consent." T.C.A. § 29-
26-118 does not codify or otherwise create such a cause of
action. While the determination of the effectiveness of
consent cannot be made without expert testimony on the
standard of care concerning what information is usually
supplied to enable a patient to give informed consent,
considering both the seriousness of the treatment and any
expression of concern by the patient, failure to give such
information is not the type of omission that results in
negligence, but rather it negates consent for the treatment.
Without consent, the treatment constitutes a battery.
[10] Under the case law, the correct analysis in our
opinion is that if the evidence shows that the person had the
capacity to consent, then the question becomes whether the
consent given was effective because it was based upon
adequate information on which to make the decision to
submit to treatment; if not, then a battery results, but if so,
then the question becomes whether the defendant
subsequently did anything negligent in the administration of
the treatment for which consent was obtained, proof of which
is controlled by T.C.A. § 29-26-115. The trial court's
instruction on negligent failure to obtain informed consent
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was, therefore, error, but in view of the verdict and our
decision in this case, it was harmless error. Rule 36,
T.R.A.P.
[11] These theories, battery and malpractice, are not
ordinarily inconsistent, and no election of remedies is
generally required; if a battery exists, then malpractice may
not necessarily be reached, but if no battery can be shown,
then the issue clearly emerges as one of malpractice. This
distinction between battery and malpractice (as a form of
negligence) is consistently recognized in the case law.
Cardwell v. Bechtol, 724 S.W.2d 739, 750 (Tenn. 1987).
Thus we come to the line that must be drawn between that which is
required by the standard of care to be disclosed to the patient and that which is
not so required. This inexact and case-sensitive line was discussed by the
supreme court in the recent case of Shadrick v. Coker, 963 S.W.2d 726 (Tenn.
1998). Said the court:
[10] This is not to suggest, however, that a health care
provider is required to enumerate in detail every aspect of the
proposed treatment or procedure or discuss every possible
thing that might go wrong in an effort to obtain the patient's
informed consent. "In the first place, to do so is humanly
impossible. In the second place, if all the gory details of a
proposed surgery were graphically explained to every patient
and all possible medical maladies that might result were
enumerated, we doubt that a lay person would have the
stomach to listen to it all; and if the patient did, would
probably be in such a fearful state that no rational decision
could be made." Longmire v. Hoey, 512 S.W.2d 307, 310
(Tenn.App.1974). Accordingly, health care providers are
generally not required to disclose risks that are not material,
such as those that are extremely unlikely to occur or one that
a reasonable patient would not care to know due to its
insignificance; risks that are obvious or already known by the
patient; risks that are unforeseeable or unknowable; or where
the patient's medical condition renders discussion of the risks
and benefits of the treatment or procedure impossible or
medically inadvisable, such as in an emergency where the
patient is unconscious or otherwise incapable of consenting,
or where full disclosure would be detrimental to the patient's
total care, i.e., the patient is unduly alarmed or apprehensive
to start with and additional information would overload the
patient and jeopardize his or her physical or emotional well-
being.
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963 S.W.2d 726, 733 (Tenn.1988).
The court of appeals in Longmire v. Hoey, 512 S.W.2d 307 (Tenn. Ct.
App. 1974) observed:
We are cited to cases from other jurisdictions where the
failure to advise of a 1% risk has been the basis of a finding
of liability. Bowers v. Talmage (1963 Fla.App.) 159 So. 2d
888, Canterbury v. Spence and Washington Hospital Center
(1972) 150 U.S.App.D.C. 263, 464 F.2d 772.
[2] We have no particular quarrel with the results
reached in other jurisdictions, but we are not of the opinion
that proof of any particular percentage figure is determinative
of whether or not a plaintiff has made out a prima facie case.
We are of the opinion that the serious nature of the risk
involved is paramount to any percentage figure of
occurrence.
Of course, the percentage of risk of occurrence must be
considered along with the nature of that which is risked. In
the reported cases which have held that failure to advise of a
1% risk or such other low percentage may be a basis for
liability, we also find that which was risked was of a
devastating nature; such as complete or partial paralyses,
blindness or deafness. We readily admit that when such is
the nature of the risk reasonable minds might differ on
whether or not the patient should have been advised of that
risk. There are those who would risk death itself before a
lifetime of paralyses or blindness. Others might prefer to
suffer a certain amount of pain rather than risk such
disastrous results. The occurrence risked may itself be of
great magnitude while the percentage of its occurrence may
be small.
512 S.W.2d 307, 310 (Tenn. Ct. App. 1974).
Both the Longmire court and the supreme court in Shadrick refer to the
landmark case of Canterbury v. Spence & Washington Hospital Center, 15
U.S.App.D.C. 263, 464 F.2d 772 (1972). The facts underlying Canterbury are
parallel to the facts in this case. In discussing the crucial question, the
Canterbury court says:
Dr. Spence further testified that even without trauma
paralysis can be anticipated "somewhere in the nature of one
percent" of the laminectomies performed, a risk he termed "a
very slight possibility." He felt that communication of that
risk to the patient is not good medical practice because it
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might deter patients from undergoing needed surgery and
might produce adverse psychological reactions which would
preclude the success of the operation.
...
We reverse. The testimony of appellant and his mother that
Dr. Spence did not reveal the risk of paralysis from the
laminectomy made out a prima facie case of violation of the
physician's duty to disclose which Dr. Spence's explanation
did not negate as a matter of law.
464 F.2d 772, 778 (1972).
Longmire did not deal with catastrophic injury but rather with a
ureterovaginal fistula developing in an area not associated with the surgery.
When considered in the context of the case at bar the Longmire dicta is
revealing:
In the reported cases which have held that failure to advise of
a 1% risk or such other low percentage may be a basis of
liability, we also find that which was risked was of a
devastating nature; such as complete or partial paralysis, . .
.
512 S.W.2d 307, 310 (Tenn. Ct. App. 1974).
Against this background we consider T.C.A. 29-26-118 specifically
entitled "proving inadequacy of consent." In cases involving informed consent
Tennessee has long followed the "battery" rule. Cardwell v. Bechtol, 724
S.W.2d 739 (Tenn. 1987); Ray v. Scheibert, 484 S.W.2d 63 (Tenn. Ct. App.
1972); Lanford v. York, 244 Tenn. 503, 457 S.W.2d 525 (1970).
Before undertaking a medical procedure it is necessary for the doctor
to adequately inform the patient as to serious risks and problems that might
develop from the procedure. This includes serious risks that are inherent in the
procedure itself no matter how carefully this procedure is performed. Under the
Longmire observations a small risk of chicken pox would be one thing and a
small risk of small pox quite something else. We need go no further in the case
at bar than hold that the catastrophic nature of paralysis presents a jury question
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under the facts of this case when a duly qualified expert witness testifies that the
applicable standard of care for informed consent requires the disclosure of the
risks.
II. If a jury question is presented as to "informed consent" is
the plaintiff's only burden as to causation to establish that
the radiation therapy in fact caused the paralysis.
Plaintiff asserts that in those jurisdictions like Tennessee following the
"battery" rule in cases involving informed consent the only causation issue is
whether or not the procedure caused the result. Thus in this case did the
radiation treatment cause the spinal cord injury resulting in paralysis.
In his brief, the defendant takes the following position:
This case law highlights the confusion that exists in the
body of law regarding informed consent in the medical arena
and whether--or when--a claim sounds in battery or
negligence. Dr. Stroup respectfully submits that a distinction
must be made between two potential kinds of informed
consent claims:
1. When the physician utterly fails to inform the patient
of the nature of the procedure and the significant risks most
likely associated with it; and
2. When the physician fails to inform the patient of a
remote (even though consequential) risk of the procedure,
but otherwise obtains the patient's informed consent.
Otherwise, a no-fault analysis will prevail and allow a
patient to recover damages when that patient has been
unfortunate enough to experience a very remote risk that
occurred in the absence of negligence. If the patient consents
to the touching, but a remote yet undisclosed risk is realized,
the jury should be allowed to determine whether that patient,
or a reasonable patient, would have nonetheless consented
even if the remote risk had been disclosed as part of the
informed consent discussion.
Otherwise, the fear expressed in Shadrick and others
will be realized. Healthcare providers will feel required to
disclose risks "that are extremely unlikely to occur . . .; risks
that are unforeseeable or unknowable; or where the patient's
medical condition renders discussion of the risks and benefits
of the treatment and procedure impossible or medically
inadvisable, . . ., or where full disclosure would be
detrimental to the patient's total care, i.e., the patient is
unduly alarmed or apprehensive to start with an additional
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information would overload the patient and jeopardize his or
her physical or emotional well-being." (Slip Op., at p. 11.)
In the present climate of experts-for-hire, any physician
would be foolhardy to exercise discretion and avoid so-called
"full disclosure" even if the patient's interests may require it.
On July 13, 1998 the Supreme Court released its opinion in Frances
Blanchard v. Arlene Kellum, D.D.S., No. 02-S-01-9709-CV-00083. The court
therein makes the distinction asserted by the defendant in this case. Says the
Supreme court in Blanchard:
The plaintiff has alleged that she did not give Dr.
Kellum permission to pull thirty-two teeth during the office
visit giving rise to this litigation. The plaintiff contends that
her claim on appeal is predicated upon a theory of "a
violation of plaintiff's person" or "an actionable battery" and
is not "related to medical or professional negligence." She
argues that expert testimony should not be required merely
to show whether Dr. Kellum procured permission to perform
the extractions.
We believe that there is a distinction between: (1) cases
in which a doctor performs an unauthorized procedure; and
(2) cases in which the procedure is authorized but the patient
claims that the doctor failed to inform the patient of any or
all the risks inherent in the procedure. Performance of an
unauthorized procedure constitutes a medical battery. A
simple inquiry can be used to determine whether a case
constitutes a medical battery: (1) was the patient aware that
the doctor was going to perform the procedure (i.e., did the
patient know that the dentist was going to perform a root
canal on a specified tooth or that the doctor was going to
perform surgery on the specified knee?); and, if so (2) did the
patient authorize performance of the procedure? A plaintiff's
cause of action may be classified as a medical battery only
when answers to either of the above questions are in the
negative. If, however, answers to the above questions are
affirmative and if the plaintiff is alleging that the doctor
failed to inform of any or all risks or aspects associated with
a procedure, the patient's cause of action rests on an informed
consent theory.
...
Lack of informed consent in a medical malpractice
action under Tenn. Code Ann. § 29-16-118 operates to
negate a patient's authorization for a procedure thereby
giving rise to a cause of action for battery. Cardwell v.
Bechtol, 724 S.W.2d 739, 750-51 (Tenn. 1987). There is,
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however, no prior authorization or consent in a medical
battery case to be negated by expert testimony. The primary
consideration in a medical battery case is simply whether the
patient knew of and authorized a procedure. This
determination does not require the testimony of an expert
witness.
Frances Blanchard v. Arlene Kellum, D.D.S., No. 02-S-01-9709-CV-00083,
slip op. at 4-6 (Tenn. July 13, 1998) (emphasis added).
In the case at bar there is no assertion of a "medical battery" case as
defined in Blanchard since not only was the radiation therapy authorized by the
plaintiff but in fact was "dress rehearsed" before the procedure was undertaken.
We are dealing here only with lack of informed consent under T.C.A. § 29-16-
118 and not with a Blanchard defined "medical battery" case. Thus we refer to
the rule in Shadrick.
The supreme court has stated:
[5] A cause of action based on the lack of informed consent
stems from the premise that a competent patient should be
allowed to formulate an intelligent, informed decision about
surgical or other treatment procedures the patient undertakes.
Housh v. Morris, 818 S.W.2d 39, 41 (Tenn.App.1991). The
basic policy consideration which supports the recognition of
the cause of action for lack of informed consent has been
explained as follows:
The root premise is the concept fundamental in
American jurisprudence that 'every human being
of adult years and sound mind has a right to
determine what shall be done with his own body .
. . .' True consent to what happens to one's self is
the informed exercise of a choice, and that entails
an opportunity to evaluate knowledgeably the
options available and the risks dependant upon
each. The average patient has little or no
understanding of the medical arts, and ordinarily
has only his physician to whom he can look for
enlightenment with which to reach an intelligent
decision. from these almost axiomatic
considerations springs the need, and in turn the
requirement, of a reasonable divulgence by [the]
physician to [the] patient to make such a decision
possible. Canterbury v. Spence, 464 F.2d 772,
780 (D.C.Cir.1972).
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[6-8] Accordingly, the law recognizes that a health care
provider, such as a physician or surgeon, who proposes a
treatment or surgical procedure has a duty to provide the
patient with enough information about the nature of the
treatment or procedure involved to enable the patient to make
an intelligent decision and thereby give an informed consent
to the treatment or procedure. See Cardwell v. Bechtol, 724
S.W.2d 739, 750 (Tenn.1987).
Shadrick at 731.
The position of the plaintiff that there is no causation issue except the
cause and effect relationship between the radiation therapy and the spinal injury
might well be correct in a Blanchard defined 'medical battery' action. It likewise
finds support in Pennsylvania Gouse v. Cassell, 615 At.2d 331 (Penn. 1992) but
little support elsewhere. In a lack of informed consent case under T.C.A. § 29-
16-118, Tennessee has not so limited the causation inquiry. Nor have Tennessee
cases articulated a causation standard directly encompassing the effect of lack of
informed consent on the preoperative decision-making of the patient. The only
hint comes from Longmire v. Hoey, 512 S.W.2d 307, 309 wherein the court of
appeals observes: "Although not of itself necessarily controlling, we can not
help but note that plaintiff never claimed that she would have made any other
choice than the one she made, even if she had been advised of the possibility of
a fistula developing." This hints at a subjective causation standard.
Professor Joseph H. King, Jr. in his 1977 article: "The standard of care
and informed consent under the Tennessee Medical Malpractice Act" vol. 44
Tenn. Law Review 2 observed:
Another aspect of the causation requirement deals with the
question of whether the required disclosure would have made
any difference in the decision to proceed with the treatment.
Most courts and legislatures that have addressed the question
apply an objective standard, which requires that plaintiff
prove that a reasonable person in plaintiff's position would
have declined the therapy had he been adequately informed.
A few courts have adopted a subjective standard that would
inquire whether the particular plaintiff would have consented
had the appropriate disclosure been made.
44 Tenn. Law Review 2 at p. 295. Footnotes omitted.
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Recognizing the reliance of Longmire and Shadrick on preeminent
authority of the near encyclopedic decision in Canterbury v. Spence, 464 F.2d
772 (1972); and lacking further guidance from the appellate courts in Tennessee,
we adopt the objective causation standard stated therein:
[31] A causal connection exists when, but only when,
disclosure of significant risks incidental to treatment would
have resulted in a decision against it. The patient obviously
has no complaint if he would have submitted to the therapy
notwithstanding awareness that the risk was one of its perils.
On the other hand, the very purpose of the disclosure rule is
to protect the patient against consequences which, if known,
he would have avoided by foregoing the treatment. The
more difficult question is whether the factual issue on
causality calls for an objective or a subjective determination.
It has been assumed that the issue is to be resolved
according to whether the factfinder believes the patient's
testimony that he would not have agreed to the treatment if
he had known of the danger which later ripened into injury.
We think a technique which ties the factual conclusion on
causation simply to the assessment of the patient's credibility
is unsatisfactory. To be sure, the objective of risk-disclosure
is preservation of the patient's interest in intelligent self-
choice on proposed treatment, a matter the patient is free to
decide for any reason that appeals to him. When, prior to
commencement of therapy, the patient is sufficiently
informed on risks and he exercises his choice, it may truly be
said that he did exactly what he wanted to do. But when
causality is explored at a post-injury trial with a professedly
uninformed patient, the question whether he actually would
have turned the treatment down if he had known the risks is
purely hypothetical: "Viewed from the point at which he had
to decide, would the patient have decided differently had he
known something he did not know?" And the answer which
the patient supplies hardly represents more than a guess,
perhaps tinged by the circumstance that the uncommunicated
hazard has in fact materialized.
In our view, this method of dealing with the issue on
causation comes in second-best. It places the physician in
jeopardy of the patient's hindsight and bitterness. It places
the factfinder in the position of deciding whether a
speculative answer to a hypothetical question is to be
credited. It calls for a subjective determination solely on
testimony of a patient-witness shadowed by the occurrence
of the undisclosed risk.
[32] Better it is, we believe, to resolve the causality
issue 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. If
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adequate disclosure could reasonably be expected to have
caused that person to decline the treatment because of the
revelation of the kind of risk or danger that resulted in harm,
causation is shown, but otherwise not. The patient's
testimony is relevant on that score of course but it would not
threaten to dominate the findings. And since that testimony
would probably be appraised congruently with the
factfinder's belief in its reasonableness, the case for a wholly
objective standard for passing on causation is strengthened.
Such a standard would in any event ease the fact-finding
process and better assure the truth as its product.
Canterbury v. Spence, 464 F.2d at 790-791 (1972).
III. If in addition to radiation-paralysis causation plaintiff must
further prove causation in a consent context, does the "rule
of cancellation" justify a directed verdict against her.
Since the objective standard we adopt renders the testimony of the
plaintiff but one of the factors to be considered, the "rule of cancellation" of
Taylor does not apply. Since this rule formed the sole basis for the trial court's
directed verdict, the action of the trial court in this respect is reversed.
The discrepancies between the testimony of Mrs. Ashe at her
deposition and her testimony at trial go to her credibility as a witness and must
be considered along with all other evidence presented to the trier of fact on the
causation issue under an objective person standard.
Appellee asserts error in the failure of the trial court to grant its motion
for a directed verdict on the issue of professional negligence in this case. The
jury was unable to reach a decision and a mistrial was declared as to this issue.
The order granting the motion of the defendant for a directed verdict
on the informed consent issue provides:
After considering the argument of counsel, the pleadings
submitted by the parties, and otherwise being sufficiently
advised, the court denies the plaintiff's motion for new trial
and motion for partial summary judgment, and grants the
defendant's motion to make the directed verdict final.
Accordingly, it is hereby ordered that the plaintiff's informed
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consent claim is dismissed with prejudice. All other claims
by the plaintiff are reserved and the case is hereby stayed
pending the plaintiff's expected appeal of the directed
verdict.
This order as to the directed verdict on the informed consent
claim is final and there is no just cause for delay.
The only notice of appeal is that filed by the plaintiff which is pursuant
to rule 54.02 of the Tennessee Rules of Civil Procedure and effectively brings
before this court only the informed consent issue.
The action of the trial court in directing a verdict in favor of the
defendants on the issue of informed consent is reversed and the case is remanded
for a new trial along with the negligence issue still pending in the trial court.
Costs of this appeal are assessed to the appellees.
_____________________________________
CONCUR: WILLIAM B. CAIN, JUDGE
__________________________________
HENRY F. TODD, PRESIDING JUDGE
__________________________________
BEN H. CANTRELL, JUDGE
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