Did your Doctor Have Permission ? Were You Properly Informed?

informed consentAs a patient in Tennessee receiving medical care, you are entitled to be properly informed and/or warned about scope and/or risks of treatment.  This is referred to as “informed consent” within the legal and medical community.  The matter of Shadrick v. Coker, 963 S.W.2d 726 involved an issue of whether a physician properly informed the patient of the scope of a surgical procedure and if patient provided informed consent.  The issue for the Tennessee Supreme Court was whether the plaintiffs, Donald Shadrick and Valerie Shadrick, were barred by the one-year statute of limitations or the three-year statute of repose for medical malpractice actions.  Donald Shadrick, injured his back at work in December 1988.  Shadrick was treated by Wesley L. Coker, M.D., an orthopedic surgeon practicing in Nashville. Dr. Coker performed a laminectomy and disc excision on March 12, 1990.  He inserted “pedicle screws” and other hardware into Shadrick’s spine to provide stability and help the vertebrae fuse together.

According to Shadrick’s testimony, which must be assumed to be true for purposes of summary judgment analysis, “no one told [him] before the operation that screws would be implanted” in his back and “nobody ever told [him] about any risk of injury or any problems that could be caused by the screws.”  Upon awakening from anesthesia, Shadrick was informed by Dr. Coker that he placed “screws” into his spine as “routine treatment.”  Shadrick had two subsequent surgeries performed by Dr. Coker to repair broker screws which was alleged to be caused by repeated falls on his buttocks.  For over three years following the removal of the screws, Shadrick continued to have pain in his back.  Shadrick continued to see Dr. Coker for treatment.

On December 17, 1993, Shadrick participated in an ABC channel 20/20 episode about pedicle screws.  Through this interview, Shadrick claimed to have learned about screws being experimental, that they had not been approved by the Food and Drug Administration for use in the spine, and that such screws had been found to cause a number of problems in patients.  Shadrick had been “led to believe that [he] had undergone a routine procedure and that everything would be all right.” Shadrick testified that had he been informed about the true nature of pedicle implants he never would have elected to have surgery involving their use.

Approximately four years and nine months later, Shadrick filed a medical malpractice cause of action against Dr. Coker and Centennial Medical Center. The complaint alleged medical malpractice, lack of informed consent and battery. The complaint also alleged that Dr. Coker fraudulently concealed the “true facts concerning [his] actions and the true nature of the pedicle or back screws and related hardware.” Shadrick claimed that prior to his surgery on March 12, 1990, he was not informed that pedicle screws would be placed in his spine. He stated in an affidavit that after the operation Dr. Coker informed him that screws had been used in the surgery, but that he was never led to believe that the screws were anything other than “routine treatment.” According to Shadrick, Dr.Coker never told him that pedicle screws were experimental, that the screws had not been approved by the Food and Drug Administration for use in spinal surgery, that there were risks associated with their use in the spine. Ms. Shadrick sued for loss of consortium.  The trial court granted Dr. Coker’s motion for summary judgment. The court found that Shadrick’s suit was not saved by the discovery rule because he was told by Dr. Coker right after the surgery on March 12, 1990 that the screws had been implanted in his back, which was something Shadrick knew he had not authorized before the surgery.  The trial court did not accept Shadrick’s contention of fraudulent concealment because Dr. Coker had not taken any affirmative or overt act to conceal any facts of screws being placed.The trial judge opined that “[h]ere there was no affirmative concealment and the facts were such that [Shadrick] knew or was on notice of inquiry that the implantation of the screws had been unsuccessful and possibly harmful. Even if the doctor …. should have told [Shadrick] more about the screws, such information does not change the fact that [Shadrick] knew or should have known in 1990 that there was a problem with the screws.”

The Court of Appeals disagreed with the trial court’s grant of summary judgment and reversed.  The Court of Appeals held there was an issue of fact as to when Shadrick was on notice and whether Dr. Coker’s silence about the experimental status of the screws amounted to fraudulent concealment.  The confidential doctor client relationship established a duty for Dr. Coker to disclose the experimental status of the screws.

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 dependent 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.
“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).
To establish fraudulent concealment, a plaintiff must prove (1) that the defendant took affirmative action to conceal the cause of action or remained silent and failed to disclose material facts despite a duty to do so and, (2) the plaintiff could not have discovered the cause of action despite exercising reasonable care and diligence. Stanbury, S.W.2d at , n. 6; Benton v. Snyder, 825 S.W.2d 409, 414 (Tenn.1992). In this regard it has been observed that when there is a confidential or fiduciary relationship between the parties, the “failure to speak where there is a duty to speak is the equivalent of some positive act or artifice planned to prevent inquiry or escape investigation.” Hall v. De Saussure, 41 Tenn.App. 572, 297 S.W.2d 81, 85 (1956). The third essential element of fraudulent concealment is knowledge on the part of the defendant of the facts giving rise to the cause of action. Benton, 825 S.W.2d at 414. In other words, the defendant must be aware of the wrong.The fourth and final essential element of fraudulent concealment is a concealment of material information from the plaintiff. Benton, 825 S.W.2d at 414.
The Supreme Court found that disputed issues of material fact exist regarding when the statute of limitations began to run and whether the fraudulent concealment exception to the statute of repose applied and thus affirmed the Court of Appeals overturning the trial court.
About Roland

Roland was born in Nashville, Tennessee and raised in Mt. Juliet, Tennessee. The first few years he resided in Paris, France with his mother who was French. In Hendersonville, he attended Beech Senior High School where played soccer and studied in the honors curriculum. Subsequently, he pursued two majors in political science and economics while graduating in three years.

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