Practice of Medicine

Article

Informed Consent in Tennessee

By R. Dale Bay, JD and Jordan Scott, JD

May 13, 2015

Informed consent is a patient’s “knowing choice about a medical treatment or procedure”[1] that results from a process of shared communication and decision making between a healthcare provider and a patient.[2] Under ordinary circumstances, informed consent is a both a legal and ethical prerequisite for healthcare transactions.[3] Although informed consent is discussed most often in the context of surgical procedures, it applies equally to other types of treatment that carry material risks.

The duty to obtain informed consent stems from the premise that a patient “should be allowed to formulate an intelligent, informed decision about surgical or other treatment procedures the patient undertakes.”[4] Tennessee courts have recognized that patients generally lack medical training and cannot make informed decisions without education and guidance from their healthcare providers.[5] Thus, the law imparts a duty on healthcare providers to give “adequate information” to patients when obtaining consent.[6]

Whether a healthcare provider has given adequate information will depend on the circumstances, including the nature of the treatment, the extent of the risks involved, and the customary advice given by healthcare providers in the community in similar situations.[7] Typically, a clinician must provide at least the following information to the patient:

  • the diagnosis or nature of the patient’s ailment
  • the nature of and reasons for the proposed treatment or procedure
  • the material risks or dangers involved
  • the prospects for success
  • alternative methods of treatment
  • the associated risks and benefits of the available alternatives, and
  • if applicable, that the proposed treatment or procedure is experimental[8]

 

Healthcare providers need not list every aspect of the proposed procedure and “every possible thing that might go wrong.”[9] For instance, healthcare providers have no duty to disclose immaterial risks—e.g., risks that are extremely unlikely to occur—and risks that are already known to the patient.[10] Further, the healthcare provider can also tailor the informed consent discussion to account for the patient’s particular characteristics, including the patient’s age, mental capacity, medical condition, emotional state, and personal values.[11]

Whenever possible, informed consent discussions should be followed by a procedure-specific form signed by the patient, which details the risks, benefits, and alternatives to the agreed-to procedure. A signed consent form raises a presumption that the patient read and took whatever other measures were necessary to “understand the nature, terms, and general meaning” of the form.[12] But a signed consent form neither relieves the healthcare provider of spending time to educate the patient nor replaces appropriate clinical documentation in the patient’s chart describing the contours of the informed-consent discussion.[13]

In addition to fulfilling a legal duty, providing the patient with adequate information to make an informed decision can also increase the patient’s trust, set realistic expectations about outcomes, and reduce conflict in the event of a complication.[14]

Sources

[1].  Black’s Law Dictionary 323 (8th ed.).

[2].  Michael J. Barry & Susan Edgman-Levitan, Shared Decision Making—The Pinnacle of Patient Centered Care, 366 New Eng. J. Med. 780 (2012).

[3].  Christine Grady, Enduring and Emerging Challenges of Informed Consent, 372 New Eng. J. Med. 855 (2015).

[4].  Shadrick v. Coker, 963 S.W.2d 726, 731 (Tenn. 1998).

[5].  Id. at 732 (quoting Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972)).

[6].  Tenn. Code Ann. § 29-26-118.

[7].  Shadrick, 963 S.W.2d at 732.

[8].  Id.

[9].  Id. at 733.

[10]. Id.

[11].  See id.

[12].  Church v. Perales, 39 S.W.3d 149, 161 (Tenn. Ct. App. 2000); Mitchell v. Kayem, 54 S.W.3d 775, 781 (Tenn. Ct. App. 2001).

[13].  See Daniel E. Hall et al., Informed Consent for Clinical Treatment, 184 Can. Med. Ass’n J. 533 (2012).

[14]. Id.

 

Updated January 2018

 

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