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News & trends
November 2007 | Volume 43, Issue 11
Tennessee allows child’s prebirth informed-consent claim, with
time limits
Valerie Jablow, Associate Editor
Ruling on two certified questions from the Sixth Circuit, the Tennessee
Supreme Court has held that a child has “an independent cause
of action for injuries caused by the failure of a physician to obtain
informed consent from the child’s mother during labor.”
But the court also affirmed limits on the time during which a child
can pursue that cause of action. (Miller v. Dacus, 2007 WL
2332942 (Tenn. Aug. 17, 2007).)
In 2003, 10-year-old Marissa Miller sued the doctor who delivered
her. After her mother’s protracted attempt at vaginal delivery,
Marissa was born by cesarean section and diagnosed with perinatal
asphyxia. The girl allegedly developed cerebral palsy as a result
of the injuries she sustained during the delivery and is now developmentally
delayed.
In her lawsuit, Marissa alleged—among other claims—that
the doctor had failed to obtain her mother’s informed consent
for many of the medical procedures that allegedly led to Marissa’s
injuries.
A federal district court dismissed the informed-consent claim, saying
that Tennessee law considers children under the age of seven unable
to consent, so any claim for failure to obtain consent is the mother’s,
not the child’s.
On appeal, the Sixth Circuit certified to the state’s highest
court two questions. The first asked whether Tennessee law recognizes
a child’s cause of action for a doctor’s failure to obtain
informed consent from his or her mother during labor and delivery.
If so, the second question asked whether the state’s legal disability
statute—which provides for a tolling period during a claimant’s
minority—would toll the state’s medical malpractice statute
of repose, as applied to Marissa’s claim for lack of informed
consent. The medical malpractice statute of repose has no minority
tolling provision.
The state’s supreme court rejected the defendant’s claim—and
the trial court’s conclusion—that the requirement that doctors
obtain informed consent cannot apply to a fetus, which is unable to
give it.
“Whether a person is capable of consenting to a medical treatment
or procedure is not determinative of whether the person had an independent
claim for lack of informed consent,” Chief Justice William Barker
wrote for the unanimous four-judge panel.
Barker noted that Tennessee has long recognized that a child has
a right to recover damages for prenatal injuries caused by another’s
negligence and a right to sue medical providers for failing to obtain
parental consent for the child’s medical treatment.
Those rights, Barker wrote, should logically extend to injuries sustained
before birth: “It would be arbitrary to allow a minor to recover
for injuries sustained 10 minutes after delivery and to prohibit a
minor to recover [for] injuries sustained 10 minutes before delivery.
The minor is unable to consent in either circumstance, and effective
consent must be obtained from a parent or guardian. Furthermore, there
is no language either in the informed-consent statute or in our prior
jurisprudence to suggest that a claim for lack of informed consent
should be limited to injuries sustained after birth.”
The court’s answer to the second certified question was a victory
for Marissa, but only because she filed her case before the court’s
earlier ruling in Calaway v. Schucker. (193 S.W.3d 509 (Tenn.
2005).) In that case, the court ruled that the minority provision
of the state’s disability statute does not toll the state’s
medical malpractice statute; however, the court exempted lawsuits
that had been filed before the date of its decision—December
9, 2005. Because the Miller case was filed before that date,
the court allowed it to proceed.
Others in the state have not been so lucky, said Marissa’s lawyer,
Timothy Holton of Memphis, who also represented the plaintiffs in
Calaway.
“There was a lawyer in Nashville who was in the middle of negotiating
a very severe birth injury case right before Calaway came out.
He didn’t file it, presuming there wouldn’t be a problem,”
Holton said. “Then the decision in Calaway came out, and
his case was forever barred because it was more than three years after
the alleged malpractice. It worked a tremendous hardship on everybody.”
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