Expert medical testimony regarding undisclosed medical risks that had not materialized is proper in a medical malpractice informed consent case.

The Supreme Court of Tennessee in the case of White v. Beeks No. V07554 (May 18, 2015) dealt with:

Ike J. White III, aged nineteen, had suffered from back pain for over a year. His pain affected his mobility and sleep, and he was unable to work or continue his education. In January 2006, Mr. White sought treatment from Dr. David A. Beeks, an orthopedic surgeon then practicing in Cleveland, Tennessee. In May 2006, after conservative treatment was unsuccessful, Dr. Beeks operated on Mr. White’s lower back, fusing select discs and joints to stabilize the spine by using the bone-grafting product, InFuse.1 Mr. White’s back pain initially improved. Approximately six weeks after surgery, however, Mr. White again reported significant lower back pain. Subsequent tests indicated that ectopic or abnormally placed bone had formed at the site of the surgery.

On July 13, 2007, Mr. White filed a health care liability suit against Dr. Beeks in the Bradley County Circuit Court.2 In an amended complaint, Mr. White alleged that Dr. Beeks had failed to obtain Mr. White’s informed consent to the surgery by not advising Mr. White of his intention to use InFuse, the manner in which it would be used, or the risks associated with its use. Mr. White’s informed consent claim was centered on the theory that Dr. Beeks’ use of InFuse caused the ectopic bone growth, which, in turn, caused pressure to be placed on a nerve in Mr. White’s back. This pressure on the nerve was alleged to be causing Mr. White’s continued back pain.

In a pretrial deposition, Mr. White’s expert medical witness, Dr. Melvin Law, testified that based on his personal experience treating patients, the use of InFuse had caused ectopic bone growth in one case; a cystic lesion, which is an inflammatory reaction, in probably ten cases; and postoperative radiculitis or fluid collection in fifteen to twenty percent of patients. Dr. Beeks moved to limit Dr. Law’s trial testimony regarding the risks of surgery that should have been disclosed to only those risks that materialized and allegedly caused harm, and to exclude testimony about the potential risks that did not occur. Dr. Beeks contended those risks were not relevant under Tennessee Rule of Evidence 401 and would potentially be prejudicial to him under Tennessee Rule of Evidence 403. In response, Mr. White argued that the jury should hear all of the risks. The trial court granted the motion and limited Dr. Law’s testimony to only those risks associated with InFuse that allegedly occurred and caused an injury to Mr. White.

The court held:

At trial, however, Dr. Law was precluded from testifying about the risks of InFuse that had not materialized. Consequently, he was not allowed to tell the jury about the risks of cystic lesions, fluid collection, or any other risks associated with InFuse that did not materialize. Thus, when asked at trial what risks were associated with InFuse, Dr. Law stated only the following: “[T]he main risk is inflammatory reactions, that can cause continued nerve pain. It can cause nerve irritation[,] and also the ectopic bone growth certainly is a complication that should be explained to the patient.”

After a careful review of the record, we hold that Mr. White was deprived of key evidence that was critical to his ability to prove his informed consent claim. This was a close case. The expert witnesses on behalf of Mr. White and Dr. Beeks offered differing opinions as to whether Dr. Beeks disclosed to Mr. White adequate information about the risks associated with spinal fusion surgery and the use of InFuse. Unlike Dr. Law, however, Dr. Beeks and his expert, Dr. Kauffman, were not precluded from offering substantial testimony against Mr. White’s informed consent claim. Had Dr. Law’s testimony not been limited, the jury would have heard expert proof demonstrating that Dr. Beeks failed to disclose to Mr. White that the use of InFuse was associated with a number of risks, in addition to ectopic bone growth and inflammation, that not only might have caused Mr. White continued back pain, but might have necessitated further invasive procedures. Given the issues in dispute, this would have had a significant effect on the jury’s determination of whether Dr. Beeks obtained Mr. White’s informed consent before using InFuse and whether a prudent person in Mr. White’s position, adequately informed, would have consented to its use. The effect of the trial court’s ruling was that the jury did not have the opportunity to hear relevant, admissible evidence supporting Mr. White’s informed consent claim. Cf. White v. Vanderbilt, 21 S.W.3d 215, 229-30 (Tenn. Ct. App. 1999) (finding that the erroneous exclusion of an expert’s deposition was not harmless, as it prevented the plaintiffs, in a close case, from introducing relevant evidence to support their medical malpractice claim); Brown v. Daly, 968 S.W.2d 814, 817-18 (Tenn. Ct. App. 1997) (finding that the erroneous exclusion of a party’s proffered statement on the basis that it was hearsay was not harmless, as exclusion of this testimony prejudiced that party’s ability to refute the opposing party’s defense); Pankow v. Mitchell, 737 S.W.2d 293, 298 (Tenn. Ct. App. 1987) (finding that the erroneous exclusion of a prior complaint filed by the plaintiff containing statements contradicting the plaintiff’s trial testimony was not harmless, as the contradicting information contained in the complaint was relevant to a contested, material issue at trial).

We hold that the erroneous exclusion of Dr. Law’s testimony, more probably than not, affected the outcome of the trial. See Smallman, 398 S.W.3d at 152. Accordingly, the error was not harmless, and Mr. White is entitled to a new trial on his informed consent claim.