Kelly on Malpractice

Suppose the following facts:

1. On November 29, 2005, your client visits the defendant for an examination. There is no record of any discussion of the risks or benefits of a femoral popliteal bypass surgery (“Fempop”).

2. On December 13, 2005, your client visits the defendant for an examination. There is no record of any discussion of the risks or benefits of the Fempop.

3. On January 6, 2006, the day of surgery, your client signed a consent form authorizing the surgery. The consent form does not list the alternatives, benefits, or the risk of amputation associated with the Fempop. On the same day, the defendant testified that he discussed the risks and alternatives with your client just before surgery. Your client vehemently denies this.

4. Your client testified that he would not have consented to the surgery if he knew that he could lose his leg. He testified that he would not have consented to the surgery if he knew that he could have had a less invasive, vascular stent as an alternative to the Fempop.

5. On January 5, 2007, you file the original complaint suing the defendant for medical malpractice related to the surgery.

6. On February, you file an amended complaint alleging informed consent as a cause of action for the first time.

The defendant moves to dismiss arguing that the informed consent claim is barred by the statute of limitations as a new claim. You argue that the informed consent claim relates back. You win, and here is why - informed consent is “part and parcel of the surgical experience.”

In Hawk v. Chattanooga Orthopaedic Group, P.C., 45 S.W.3d 24 (Tenn.Ct.App.2000), the plaintiff filed his original complaint alleging medical malpractice related to hip surgery. While the plaintiff criticized the surgery and post-operative care, he did not allege informed consent or TENN.CODE ANN. § 29-26-118 anywhere in his original complaint. Mr. Hawk learned during discovery that the surgeon had a hand disability. He moved to amend his complaint four years later. Mr. Hawk raised an informed consent claim in his amended complaint. Specifically, Mr. Hawk alleged that the surgeon should have informed him about the hand disability before obtaining consent to operate. The surgeon moved to dismiss the amendment by arguing that the amendment was barred by the statute of limitations. The informed consent claim was barred if it did not relate back to the original complaint. The trial court found that the amendment related back under Rule 15.03, thus the statute of limitations did not bar the amendment. The surgeon appealed.

The issue before the Court of Appeals was “whether the amendments to the complaint relate back to the date of filing of the original complaint.” If the informed consent claim related back, then the statute of limitations does not bar the amendment. The case turned on the application of Rule 15.03, which states:

Whenever the claim or defense asserted in amended pleadings arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.

Before undertaking its analysis, the Court of Appeals found that the “conduct, transaction, or occurrence” language in Rule 15.03 must be broadly and liberally construed in favor of the plaintiff. The Court of Appeals in Hawk reviewed Tennessee law relative to Rule 15.03. The Supreme Court first analyzed Rule 15.03 in Karash v. Pigott, 530 S.W.2d 775 (Tenn.1975). In Karash, the plaintiffs’ original complaint, sounding in negligence, centered on a transfusion of contaminated blood. Hawk, 45 S.W.3d at 29 (quoting Karash, 530 S.W.2d at 776). The proposed amendment sought to add an allegation of assault and battery. The Supreme Court concluded that “clearly, the assault and battery was a “part and parcel” of the conduct, transaction and occurrence set forth in the original complaint.” In other words, the assault and battery claim related back because it was “part and parcel” of the negligent blood transfusion. The Supreme Court adopted a rule that an amended claim relates back it is “part and parcel” of a medical procedure specified in the original complaint. Hawk, 45 S.W.2d at 29 (quoting Karash, 530 S.W.2d 777).

The Hawk court then distinguished Gamble v. Hospital Corp. of America, 676 S.W.2d 340 (Tenn.Ct.App.1984). The Hawk court’s treatment of Gamble deserves special consideration. In Gamble, the surgeon performed back surgery on plaintiff on June 17th. During the operation, the surgical instrument used by the surgeon broke. A fragment of the metal instrument lodged in plaintiff’s spine. Despite extensive probing and repeated efforts, the surgeon was unable to retrieve the metal fragment during the June 17th operation. On October 14th, the surgeon performed a second operation to remove the fragment.

The plaintiff in Gamble alleged negligence relating to the first surgery, not the second surgery. After statute of limitations expired, the plaintiff in Gamble alleged negligence relating to the second surgery and sought to amend under Rule 15.03. The Gamble court held that the claim of negligence relating to the second surgery did not arise out of the “conduct, transaction or occurrence” of the first set out in the original pleading. The transactions or occurrences in Gamble took place 4 months apart in separate surgeries (from June 17th to October 14th). These surgeries occurred at different times with a different purpose, so the amendment did not relate back.

The Hawk court found Gamble to be inapposite because Mr. Hawk did not have multiple surgeries, with multiple purposes, that occurred four months apart. Instead, Mr. Hawk had one surgery with one purpose—a hip replacement. Hawk, 45 S.W.3d at 29. The Hawk court compared the original complaint to the amended complaint. The “conduct, transaction, or occurrence” in the original complaint pertained to the underlying factual predicate set forth in the original complaint—Mr. Hawk’s hip surgery. The original complaint did not include any pre-surgical discussions between the plaintiff and the surgeon. The original complaint did not even mention informed consent or TENN.CODE ANN. § 29-26-119 anywhere in his original complaint. Nevertheless, the Court of Appeals declared:

We find no support in the language of the rule or in the pertinent caselaw for segregating by an imaginary line those pre-operative events relating to and leading up to the surgery from events occurring during and after the surgery. All events relate to the surgery. Parsing of the surgery is contrary to the letter and spirit of Rule 15.03.

“Informed consent is ‘part and parcel’ of the surgical experience.” Therefore, the Court of Appeals held that the informed consent amendment arose out of the surgical experience alleged in the original complaint. Hawk, 45 S.W.3d at 33. Defendants have no support in the law for segregating by an imaginary line those pre-operative events relating to and leading up to the surgery from those events occurring during and after the surgery. All events relate to the surgery, as stated in Hawk.

Keep Hawk in your trial tool box. You may need it some day.

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