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Bogner v. Vanderbilt University

Court of Appeals of Tennessee, Nashville

February 23, 2017


         Session: February 17, 2016

         Appeal from the Circuit Court for Davidson County No. 10C2109 Joseph P. Binkley, Jr., Judge

         This is 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Jon E. Jones and Patrick Shea Callahan, Cookeville, Tennessee, for the appellant, James J. Bogner, II.

          Thomas A. Wiseman, III, and Margaret Moore, Nashville, Tennessee, for the appellee, Vanderbilt University.

          W. 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.


          W. NEAL McBRAYER, JUDGE.

         I. Factual and Procedural Background

         At age 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.

         Mrs. 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.

         One 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.

          The 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[1] ('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 this study.
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 access to.

         Mrs. 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."

         Immediately after Dr. Greelish completed the bypass grafts, Dr. David Hanson, a Vanderbilt cardiologist, performed a coronary angiogram[2] 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[3] 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.

         Mrs. 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.

         Mrs. 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.

         This 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.

         A. Proof at the Trial

         1. Plaintiff s Proof

         Mrs. Bogner testified in a deposition videotaped before her death that she only consented to coronary artery bypass grafting, not to a completion angiogram[4] 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.

         Mr. 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.

         Plaintiffs 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.

         Dr. 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.

         Dr. 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.

         2. Vanderbilt's Proof[5]

         a. Coronary Artery Bypass ...

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