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Posted by: Tanja Trezise on Aug 27, 2015

Head Comment: REVISED: Contains a new footnote 8 on page 10, and renumbering of the subsequent footnotes.

Court: TN Supreme Court

Attorneys 1:

H. Franklin Chancey, Cleveland, Tennessee, for the appellant, Ike J. White III.

Attorneys 2:

Richard A. Smith and Stacy Lynn Archer, Chattanooga, Tennessee, for the appellee, David A. Beeks, M.D.

Judge(s): LEE

The issue in this health care informed consent case is whether the trial court erred by limiting the testimony of plaintiff patient’s expert witness regarding the risks that the defendant doctor was required to disclose to obtain the patient’s informed consent for surgery. The doctor performed a spinal fusion on the patient. His back pain initially improved, but subsequently worsened. The patient sued the doctor, claiming his back pain was caused by nerve compression due to ectopic bone growth at the site of the fusion. The patient alleged that the doctor failed to give him adequate information to enable him to give an informed consent to the surgery. In a pretrial deposition, the patient’s expert testified that to obtain informed consent, the doctor was required to advise the patient that he would use a bone-grafting protein and inform the patient about all the potential risks arising from its use, including risks that allegedly caused harm and risks that did not cause harm. The trial court granted the doctor’s motion to limit the patient’s expert witness testimony to only those risks that allegedly materialized and injured the patient. The jury returned a verdict in favor of the doctor. In a divided opinion, the Court of Appeals affirmed the trial court’s exclusion of the expert medical testimony. We hold that the trial court erred by excluding expert testimony regarding undisclosed medical risks that had not materialized. Because this error, more probably than not, influenced the jury’s verdict, the patient is awarded a new trial.