JAMES J. BOGNER, II
February 17, 2016
from the Circuit Court for Davidson County No. 10C2109 Joseph
P. Binkley, Jr., Judge
an appeal from a judgment entered on a jury verdict in favor
of the defendant in a health care liability action. The
plaintiff filed suit against the defendant hospital for
medical malpractice, medical battery, and lack of informed
consent. The trial court granted a partial directed verdict
in favor of the defendant after the plaintiff presented
evidence. At the close of all the proof, the trial court
denied the plaintiff's motion for a directed verdict on
the remaining issues of medical battery and informed consent.
On appeal, the plaintiff claims that the trial court erred in
denying the motion for a directed verdict, in refusing to
adopt the plaintiffs special jury instructions, and in using
a confusing special verdict form. Discerning no reversible
error, we affirm the judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Jones and Patrick Shea Callahan, Cookeville, Tennessee, for
the appellant, James J. Bogner, II.
A. Wiseman, III, and Margaret Moore, Nashville, Tennessee,
for the appellee, Vanderbilt University.
Neal McBrayer, J., delivered the opinion of the court, in
which Frank G. Clement, Jr., P.J., M.S. and Brandon O.
Gibson, J., joined.
NEAL McBRAYER, JUDGE.
Factual and Procedural Background
75, Mrs. Barbara Bogner began experiencing chest pain, and
her physician referred her to a cardiologist for evaluation.
The cardiologist performed a cardiac catheterization, which
showed blockages in three coronary arteries. The cardiologist
then referred her to Dr. James Greelish, a cardiothoracic
surgeon at Vanderbilt University Medical Center
("Vanderbilt") for treatment.
Bogner, accompanied by her husband and son, met with Dr.
Greelish on March 30, 2006. Dr. Greelish showed Mrs. Bogner
the film of her cardiac catheterization, explained the
findings, and recommended cardiac artery bypass grafting. He
discussed the risks of the procedure, provided the family
with written materials, and answered all of their questions.
At the end of the meeting, Mrs. Bogner reviewed and signed
two consent forms.
consent form was entitled, "Consent to Operation,
Treatment or Other Procedure." By signing this consent
form, Mrs. Bogner authorized "coronary artery bypass
surgery to be performed by Dr. Greelish and staff." This
operative consent form provided, in relevant part:
The nature, advisability, and purpose of the operation,
treatment, or other procedures have been explained to me,
together with the benefits hoped to result and the material
risks. Alternatives to the operation, treatment, or other
procedure, if any, and the risks of such alternatives have
been explained to me. I understand the explanations that have
been given to me, and I understand that no guarantee is
offered as to the results . . . .
I understand that during the course of the operation,
treatment, or other procedure, unforeseen conditions may be
found that make an extension of the original operation,
treatment, or other procedure advisable. I authorize and
consent to such extension or other operation, treatment, or
other procedure as it is advisable in the professional
judgment of my physician or physicians.
second consent form gave Vanderbilt doctors permission to
review Mrs. Bogner's medical records as part of a
research study. According to this form, Vanderbilt was
conducting a "retrospective review of cardiac surgery
followed by completion angiography and/or percutaneous
coronary intervention ('The Hybrid Approach')." The
research study consent form provided, in part:
1. What is the purpose of this study?
You are being asked to take part in this research study
because you have had or will be having heart surgery. Your
heart surgery was or will be done in a room that both surgery
and heart catheterizations can be done during the same period
of time. We call this room the "hybrid" suite. We
want to collect data on how well this treatment works for
heart patients. We would like to enroll 200 patients into
2. What will happen and how long will you be in the study?
We are asking for your permission to review your medical
records. We want to review the data of your surgery in the
hybrid suite. We would like to have access to these records
for this purpose for a period of 10 years.
4. Side effects and risks that you can expect if you take
part in this study:
The only risk for taking part in this study is that private
health information that will be collected could become known
to others. This information will be stored in a password
protected database that only the physician and the nurse have
Bogner was admitted to Vanderbilt on April 18, 2006, for
coronary artery bypass grafting in Vanderbilt's hybrid
suite. Upon admission, Mrs. Bogner signed a third consent
form, entitled "Consent for Routine Diagnostic Procedure
and Medical Treatment."
after Dr. Greelish completed the bypass grafts, Dr. David
Hanson, a Vanderbilt cardiologist, performed a coronary
angiogram that revealed a severe restriction in one
of the bypass grafts that was impeding the blood flow to the
attached coronary artery. Dr. Hanson, in conjunction with Dr.
Greelish, determined that a balloon angioplasty was medically
necessary because Mrs. Bogner was at a high risk of suffering
additional heart damage due to insufficient blood flow to her
heart. Dr. Mark Glazer, an interventional cardiologist,
performed the balloon angioplasty to open the bypass graft.
Bogner did not recover from surgery as expected and remained
hospitalized at Vanderbilt until May 30, 2006, when she was
transferred to a rehabilitation hospital. Eventually, Mrs.
Bogner was discharged and returned home. Thereafter, she
experienced a variety of medical conditions that required
treatment, including dialysis.
Bogner initially filed a healthcare liability action against
Vanderbilt on April 17, 2007. After taking a voluntary
nonsuit, she filed this action in the Circuit Court for
Davidson County, Tennessee, on June 8, 2010. While the case
was pending, Mrs. Bogner died of causes unrelated to the
Vanderbilt surgery, and James Bogner, her son and the
administrator of her estate, was substituted as plaintiff.
case was tried before a jury for seven days. At the end of
Plaintiffs case in chief, Vanderbilt moved for a directed
verdict on all issues. The court granted the motion on all
issues except for informed consent and medical battery. After
both sides concluded their proof, Vanderbilt renewed its
request for a directed verdict, which the court denied.
Plaintiff also moved for a directed verdict on the issues of
informed consent and medical battery. The court denied
Plaintiffs motion as well and the case proceeded to the jury.
Proof at the Trial
Plaintiff s Proof
Bogner testified in a deposition videotaped before her death
that she only consented to coronary artery bypass grafting,
not to a completion angiogram or balloon angioplasty. She only
remembered discussing coronary artery bypass grafting with
Dr. Greelish and denied any knowledge of a research study,
the hybrid suite, or an experimental surgery.
Bogner also maintained that Dr. Greelish's discussion
with his mother was limited to the risks of coronary artery
bypass grafting. According to Mr. Bogner, "we thought
she was having normal bypass surgery." He conceded that
his parents were given the opportunity to ask questions and
that Dr. Greelish answered all their questions to their
satisfaction. He also agreed that, at the meeting with Dr.
Greelish, his mother reviewed and signed consent forms for
both the operation and the research study.
expert witness, Dr. George Feldman, testified that undergoing
coronary artery bypass grafting in the hybrid suite increased
Mrs. Bogner's risk of injury. In his opinion, the
standard of care required Dr. Greelish to disclose that Mrs.
Bogner's surgery was experimental and involved additional
risks. He reviewed the consent forms that Mrs. Bogner signed
and opined that none of them met the standard of care for
obtaining informed consent. According to Dr. Feldman, the
operative consent form was limited to coronary artery bypass
grafting and did not include the completion angiogram. In his
view, the research study consent form misled Mrs. Bogner
about the risks involved in her surgery. Finally, Dr. Feldman
testified that the consent form for routine treatment that
Mrs. Bogner signed upon admission to the hospital did not
cover experimental procedures.
Hanson and Dr. Glazer agreed with Dr. Feldman that coronary
artery bypass grafting immediately followed by a completion
angiogram was experimental in 2006 and entailed additional
risks that should have been disclosed to Mrs. Bogner. Two
other Vanderbilt physicians, while disputing whether the
hybrid procedure was experimental, conceded that the standard
of care required that a physician inform Mrs. Bogner of the
additional risks associated with undergoing bypass surgery in
the hybrid suite.
Glazer identified the research study consent form as the form
authorizing the performance of bypass grafting in the hybrid
suite and agreed that the form misrepresented the risks.
Coronary Artery Bypass ...