informed consent claim in Tennessee

2020Informed Consent To prevail on an informed consent claim, “the plaintiff must prove: ‘(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.’” Bogner v. Vanderbilt Univ., No. M2015-00669- COA-R3-CV, 2017 WL 716011 , at *7 (Tenn. Ct. App. Feb. 23, 2017) (quoting Ashe v. Radiation Oncology Assocs., 9 S.W.3d 119, 121 (Tenn. 1999) and citing Tenn. Code Ann. § 29-26-118 (2012)).

2020The trial court also found that the Coopers’ claims were not related to the doctrine of informed consent: “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.” Ashe v. Radiation Oncology Assocs., 9 S.W.3d 119, 121 (Tenn. 1999).

2020In making this argument Dr. Alexander relied on Blanchard v. Kellum, 975 S.W.2d 522, 524 (Tenn.1998), wherein our Supreme Court set out a clear distinction between a claim of medical battery and an informed consent claim.

2011Id. at 808 (citing Blanchard, 975 S.W.2d at 524 ; Cardwell, 724 S.W.2d at 750 (holding that failure to comply with standard of care when obtaining informed consent constitutes battery)).

2011“A battery necessarily requires an unpermitted touching of the plaintiff by the defendant or by some object set in motion by the defendant.” Cary v. Arrowsmith, 777 S.W.2d 8, 21 (Tenn. Ct. App. 1989) (involving an informed consent claim against a doctor) (citing 6A C.J.S.

2002The record indicates that the trial court refused to charge on the doctrine of informed consent for two reasons: (1) the doctrine of informed consent does not apply to therapeutic treatment as announced in Cary v. Arrowsmith, 777 S.W.2d 8, 21 (Tenn. Ct. App. 1989); and (2) for lack of proof the defendants were not required to inform of the risk of the plaintiffs’ resulting injury.

2011Id. at 808 (citing Blanchard, 975 S.W.2d at 524 ; Cardwell, 724 S.W.2d at 750 (holding that failure to comply with standard of care when obtaining informed consent constitutes battery)).

2011Id. at 808 (citing Blanchard, 975 S.W.2d at 524 ; Cardwell, 724 S.W.2d at 750 (holding that failure to comply with standard of care when obtaining informed consent constitutes battery)).

2020See, e.g., Howard v. Univ. of Med. & Dentistry of N.J., 800 A.2d 73, 84 (N.J. 2002) (holding claim that misrepresentations of a physician’s professional experience induced patient to consent to procedure was an informed consent claim); Franz v. Ashland Hosp.

2020Ct. 2005), aff’d per curiam, 906 A.2d 1194 (Pa. 2006) (holding that the processing of lab reports was more like providing medical treatment than consumer-oriented commercial or business activities of health care providers that the consumer protection statute would cover); Quimby v. Fine, 724 P.2d 403, 406 (Wash. Ct. App. 1986) (stating that the consumer protection statute applies to entrepreneurial aspects of medical practice, including an informed consent claim if the medical provider obtained the consent to promote a service to increase profits or patient volume without adequately advising o

2015Bd. of Trs., the doctrine of informed consent, as it is known today, was first articulated. 154 Cal.App.2d 560 , 317 P.2d 170, 181 (1957).

2015Bd. of Trs., the doctrine of informed consent, as it is known today, was first articulated. 154 Cal.App.2d 560 , 317 P.2d 170, 181 (1957).

2012The trial court relied on the Tennessee Supreme Court’s opinion in the case of Bryant v. HCA Health Services of Tenn., 15 S.W.3d at 804.

2004See Planned Parenthood v. Casey, 505 U.S. at 880 , 112 S. Ct. at 2822 ; Harris v. McRae, 448 U.S. 297, 316 , 100 S. Ct. 2671, 2687-88 (1980); Roe v. Wade, 410 U.S. at 164-65 , 93 S. Ct. at 732 .

2004See Planned Parenthood v. Casey, 505 U.S. at 880 , 112 S. Ct. at 2822 ; Harris v. McRae, 448 U.S. 297, 316 , 100 S. Ct. 2671, 2687-88 (1980); Roe v. Wade, 410 U.S. at 164-65 , 93 S. Ct. at 732 .

2004See Planned Parenthood v. Casey, 505 U.S. at 880 , 112 S. Ct. at 2822 ; Harris v. McRae, 448 U.S. 297, 316 , 100 S. Ct. 2671, 2687-88 (1980); Roe v. Wade, 410 U.S. at 164-65 , 93 S. Ct. at 732 .

2004See Planned Parenthood v. Casey, 505 U.S. at 880 , 112 S. Ct. at 2822 ; Harris v. McRae, 448 U.S. 297, 316 , 100 S. Ct. 2671, 2687-88 (1980); Roe v. Wade, 410 U.S. at 164-65 , 93 S. Ct. at 732 .

2002The court interpreted Gray as a decision by the Pennsylvania Supreme Court to expressly ground “its adoption of the informed consent doctrine upon the legal theory that the performance of a medical procedure without a patient’s informed consent constitutes a technical assault or battery.” Boyer, 345 Pa. Super. 66 , 497 A.2d at 649 (construing Gray, 423 Pa. 144, 155 , 223 A.2d 663 (Pa. 1966)).

2002The court interpreted Gray as a decision by the Pennsylvania Supreme Court to expressly ground “its adoption of the informed consent doctrine upon the legal theory that the performance of a medical procedure without a patient’s informed consent constitutes a technical assault or battery.” Boyer, 345 Pa. Super. 66 , 497 A.2d at 649 (construing Gray, 423 Pa. 144, 155 , 223 A.2d 663 (Pa. 1966)).

2000Moore, 989 F.2d at 1132 (footnote omitted).