TN Supreme Court holds that a child born alive has an independent cause of action for failure to obtain informed consent

In, Marissa Miller, a minor, by and through her mother, and next friend, Miranda Miller v. John Dacus, M.D. - M2006-02728-SC-R23-CQ View, the Tennessee Supreme Court held that child born alive does have 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.

In 2003, the Plaintiff through her mother and 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, alleging 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. On appeal, the United States Court of Appeals for the Sixth Circuit certified two questions of law to this Court.

1. Whether a child born alive has an independent cause of action for injuries allegedly caused by the failure of a physician to obtain informed consent from the child’s mother during labor and delivery.
2. If the Answer to Question 1 is ‘Yes,’ whether the minority provision of Tennessee’s legal disability statute, Tenn. Code Ann. § 28-1-106, tolls the medical malpractice statute of repose, Tenn. Code Ann. § 29-26-116(a)(3), as applied to a fetus’s lack of informed consent claim.

TN SC holds that Tennessee Code Annotated section 28-1-106 tolls the three-year statute of repose for the Plaintiff’s lack of informed consent claim because the claim was commenced before December 9, 2005. See Calaway v. Schucker, 193 S.W.3d 509 (Tenn. 2005).

View case

* * * * *

Note: TN's Callaway v. Schucker, 193 S.W.3d 509 (Tenn. 2005), case has held that TN's statute of repose is not tolled by child's minority. The court in Miller applied Callaway prospectively only.