Ashe v. Radiation Oncology Associate

9 S.W.3d 119 (1999)

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Nature of the Case

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Facts

P was diagnosed with breast cancer. She underwent a double mastectomy and chemotherapy as treatment for her breast cancer. In 1993, P presented symptoms of fever, cough, pain in the abdomen, weight loss, decreased appetite, and irritability. A chest x-ray and a CT scan revealed the presence of a mass in the medial left apex of her left lung. The lung tumor could possibly have been metastatic cancer from the breast. P underwent surgery, and the upper portion of her left lung was removed. She underwent chemotherapy and was referred to D, for consideration of radiation therapy. D recommended the therapy but never told P about all the consequences: the radiation may cause spinal cord injury. P sustained 'radiation myelitis' caused by a permanent radiation injury to her spinal cord. She is now a paraplegic. P sued for medical malpractice and lack of informed consent. D claimed that the risk that P would sustain a spinal cord injury was less than one percent. P proffered the testimony of her expert, Dr. Carlos Perez. who stated that the risk was one to two percent. Perez testified that the applicable standard of care required physicians to warn patients about the risk of radiation injury to the spinal cord. P testified that she would not have consented to the radiation therapy had she been informed of the risk of paralysis. But P's deposition testimony indicated that she did not know what she would have done had she been warned about the risk of spinal cord injury. The trial court struck the trial testimony and granted D a directed verdict on the informed consent claim. P's malpractice claim went to the jury. The jury was unable to reach a verdict, and a mistrial was declared. P appealed and the court held that as part of P's informed consent claim she was required to prove that a reasonable person knowing of the risk for spinal cord injury would have decided not to have had the procedure performed. It reversed. D appealed.