Informed Consent: What Tennessee Law Requires

Notions of consent relating to medical practice have existed for many years. The doctrine of consent in the context of medical practice derived from the principle that patients should have a right to control what happens to their bodies. For over fifty years, patients in Tennessee have been able to sue medical providers who perform treatment without first obtaining adequate consent.

In Tennessee, adequate consent is more than simply having a patient agree to a particular treatment. Informed consent is a legal concept directing that patients have the right to know the potential risks, benefits, and alternatives of proposed medical treatment before providing consent. The information that must be given by the medical provider is based upon the medical specialty, procedure, and community at issue. Essentially, the information that must be given is that which would normally be given by providers in the same medical specialty in the community in which the provider practices or a similar community. For example, a neurologist should disclose that information that other neurologists in the same community or a similar community would normally disclose before initiating the treatment at issue.

A patient in Tennessee may assert two types of consent claims against a medical provider. If treatment is performed without any consent for the particular treatment, then the patient can sue under a theory of medical battery. For example, a medical battery occurs when a surgeon amputates a patient’s left leg after receiving consent to amputate the right leg. If a procedure is performed after consent is provided, but without the provider having made known the potential risks, benefits, and alternatives, then the patient can sue under a lack of informed consent theory. A patient can assert a claim for medical battery or lack of informed consent regardless of whether the procedure or treatment at issue was negligently performed. Claims involving consent are separate from a general medical malpractice claim, which focuses on whether the particular treatment was provided within the applicable standard of care.

According to Tennessee law, consent for medical treatment can be express or implied. Express consent occurs when a patient verbally and/or in writing consents to a particular treatment or procedure. Implied consent occurs when a patient’s actions (even silence) demonstrate that consent is being given. Written consent is best, because it provides visible proof that the patient authorized the treatment. Oral consent may be sufficient; however, it is more difficult to prove should a patient decide to sue. For this reason, any instances of verbal consent should be documented in the patient’s medical chart.

There are exceptions where informed consent is not required (or is implied). For example, consent to treatment is implied in an emergency if it would be impossible or impractical to delay treatment that is necessary to preserve the patient’s life. In such scenario, the medical provider must conform to the customary practice among providers in the same specialty faced with a comparable situation in the same or a similar community. Saving the life of the patient obviously trumps other considerations in an emergency situation.

In light of Tennessee law, medical providers who propose treatment should ensure that patients are provided adequate information. Erring on the side of too much information is better than the alternative. Additionally, providers should ensure that patients who provide consent are competent to do so. This act requires determining whether the patient appears able to understand the risks, benefits, and alternatives proposed, and voluntarily makes the decision. Consent forms should be utilized whenever possible, and they should be specific to the procedure/treatment to be provided. Charting that a patient has consented to the proposed treatment and has been informed of the risks, benefits, and alternatives is also highly recommended irrespective of a consent form. Medical providers should also ensure that once informed consent is obtained, they stay within the confines of what was consented to. If circumstances change, then providers should obtain additional informed consent if at all possible.

Tags: physicians