White v. Beeks
| Decision Date | 18 May 2015 |
| Docket Number | No. E2012-02443-SC-R11-CV,E2012-02443-SC-R11-CV |
| Citation | 469 S.W.3d 517 |
| Parties | Ike J. White III v. David A. Beeks, M.D. |
| Court | Tennessee Supreme Court |
H. Franklin Chancey, Cleveland, Tennessee, for the appellant, Ike J. White III.
Richard A. Smith and Stacy Lynn Archer, Chattanooga, Tennessee, for the appellee, David A. Beeks, M.D.
OPINION
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.
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.
A jury trial was conducted over four days in August 2012. Mr. White testified that he had suffered back pain stemming from three separate incidents.3 Mr. White testified that he had trouble walking, touching his toes, and sleeping more than four hours a night because of his pain. In addition, Mr. White was unable to work or continue his education. Mr. White took over-the-counter pain medications and used heating pads and ice packs to reduce his pain. After the pain became too much to bear, Mr. White went to the emergency room in January 2006. That same month, he sought treatment from Dr. Beeks, who examined Mr. White, reviewed his x-rays, and recommended physical therapy.
Mr. White testified that physical therapy did nothing to ease his pain, which included a sensation like a “lightning bolt shooting down [his] leg.” When he visited Dr. Beeks for a follow-up appointment on February 3, 2006, Mr. White ranked his pain a 10 out of 10,4 and he told Dr. Beeks that physical therapy was not helping his ongoing pain. As a result, Dr. Beeks ordered an MRI of the lumbar spine, which showed a degenerative disc with herniation. Dr. Beeks reviewed the results with Mr. White and told him he had a herniated disc pushing on one of his nerve roots. Dr. Beeks recommended that Mr. White undergo a surgical fusion because surgery was the only viable option at that point.5
Surgery was scheduled, but Mr. White cancelled it to get a second opinion. Dr. Beeks referred Mr. White to Dr. Stephen Dreskin for pain management and to discuss nonsurgical treatment. Mr. White testified that he had rated his pain level “an 8 or a 9 out of 10” when he met with Dr. Dreskin, who subsequently gave him an epidural steroid injection in his back. Because this injection made him feel worse, Mr. White did not schedule a second epidural steroid injection. Dr. Dreskin recommended surgery to address Mr. White's ongoing pain.
Mr. White returned to Dr. Beeks' office, and they again discussed surgery. As Mr. White recalled, Dr. Beeks “said he was going to put a rod and two screws in it and some kind of fake bone mass.” Mr. White stated, however, that Dr. Beeks never told him what that meant, never used the word “InFuse,” and never talked to him about any of the risks involved. Mr. White also testified that Dr. Beeks did not discuss with him whether it was necessary to use the artificial bone mass or the prospects for a successful surgery if the artificial bone mass was not used. Dr. Beeks spoke to him about the basic risks of surgery, “like ... not wak[ing] up.” However, Mr. White denied ever being told that Dr. Beeks intended to “use a product to help [his spinal] fusion grow.” Dr. Beeks told him that there was a seventy percent chance the surgery would help him and a thirty percent chance it would not. Dr. Beeks gave Mr. White an opportunity to ask questions, and Mr. White inquired about his recovery, how long he would be in the hospital, and how much pain he would have. On May 2, 2006, Dr. Beeks operated on Mr. White's lower back, fusing his spine.
According to Mr. White, his back pain improved after surgery, but soon the pain returned, including “a real sharp drilling kind of pain every time [he] put any pressure on [his] right leg, [and a] fuzzy lightning bolt kind of feeling ... down [his] right leg.” Subsequent tests indicated that ectopic bone had formed at the site of the surgery. Mr. White elected not to undergo additional surgery to remove the bone growth.
Dr. Law testified that Dr. Beeks failed to provide the information required by the standard of care in order to obtain Mr. White's informed consent to the surgery. He explained that Dr. Beeks was obliged to discuss the rationale for the surgery and the alternative treatments or alternative types of surgery, which included simple decompression without fusion or other types of fusion procedures. Dr. Law opined that Dr. Beeks should have explained to Mr. White that he had the option of deciding whether to use InFuse during surgery. In addition, Dr. Law said that Dr. Beeks should have described the relative advantages of InFuse, the complications associated with its use, the potential to increase the chance for a successful fusion when using InFuse versus not, and the manner in which InFuse would be used. Further, Dr. Law stated that Dr. Beeks should have explained the risks of performing a fusion, as opposed to a simpler type of decompression procedure. Notably, Dr. Law testified that Dr. Beeks should have disclosed to Mr. White that the main risks of using InFuse were nerve pain, irritation, and ectopic bone growth. Consistent with the trial court's pretrial order, Dr. Law did not testify as to any other risks, including fluid collection or cystic lesions. Dr. Law admitted that he does not discuss every possible “theoretical complication with a patient” in order to obtain informed consent. In Dr. Law's opinion, the use of InFuse caused ectopic bone growth at the site of the fusion, and the bone growth precipitated Mr. White's compressive radiculopathy, which caused pain.
Dr. Beeks testified that he discusses with his patients the risks associated with medical procedures because he could not expect the typical patient to know of such risks and “the patients need to make an informed decision of whether they want to have a procedure.” Dr. Beeks stated that he had given Mr. White enough information so that...
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