An Informed Consent Claim Belongs to Both the Mother and the Fetus
posted on December 29th, 2007 in Informed Consent by clintIn Miller v. Dacus, 2007 WL 2332942 (Tenn.), the plaintiff through her mother as next friend brought a medical malpractice suit in federal district court against the obstetrician for injuries sustained by the Plaintiff during her birth in 1993. The plaintiff alleged both medical negligence and lack of informed consent. The district court dismissed the lack of informed consent claim on summary judgment, ruling that a child born alive does not have an independent action for lack of informed consent. Specifically, the district court ruled that a doctor’s duty to obtain informed consent under Tennessee law is owed to the mother, not to the fetus. On appeal, the United States Court of Appeals for the Sixth Circuit certified two questions of law to the Tennessee Supreme Court, which held that a child born alive 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. The effect of this ruling pertains to time. It means that if the plaintiff is the child, then he or she has three years from the date of birth to assert an informed consent claim, rather than the one year limitation period that applies to adults. The three year period relates to the statute of repose in medical malpractice actions. This case probably has limited application, but you should be aware of it.