Where a patient signed a consent form for a double mastectomy after being told about multiple options for treating her breast cancer, summary judgment on her HCLA claim against the surgeon based on surgical overtreatment and lack of informed consent was affirmed.
In Oakes v. Fox, No. E2024-00453-COA-R3-CV (Tenn. Ct. App. Aug. 22, 2025), the plaintiff patient was diagnosed with early-stage breast cancer and met with defendant surgeon to discuss treatment options. According to the defendant and the notes in the plaintiff’s file, the defendant discussed multiple options with the plaintiff, including a lumpectomy and a double mastectomy. The parties agreed that the plaintiff asked the surgeon what he would choose for his wife, and he responded that he would choose the double mastectomy. The plaintiff expressed a desire to avoid radiation treatment, which the doctor informed her could likely be avoided with the mastectomy. The plaintiff chose to move forward with the double mastectomy.
On the day of the surgery, the plaintiff signed a consent form stating that she expressly consented to the double mastectomy and the removal of lymph nodes. A few months after the surgery, the plaintiff experienced lymphedema. She opted to undergo an elective revision surgery with a different doctor.
Plaintiff filed this HCLA suit arguing that the defendant’s treatment of her cancer “amount[ed] to reckless surgical overtreatment [which] deviated and fell below the acceptable standards of professional practice and care.” The plaintiff also asserted that she did not give informed consent to the procedure.
During discovery, the plaintiff’s second surgeon stated that the revision surgery was elective, and that the plaintiff had told her that “she decided against lumpectomy to avoid chemotherapy.” In addition, the plaintiff’s expert “acknowledged that lymphedema could occur in the absence of negligence.”
The defendant filed a motion for summary judgment, and the plaintiff failed to file a response until less than twenty-four hours before the scheduled hearing. In fact, the plaintiff “missed every single deadline” in this case. As a result, the trial court found that the summary judgment response was not timely filed and should not be considered, and the statement of undisputed material facts submitted by the defendant was deemed admitted. The trial court then granted the defendant summary judgment, which was affirmed on appeal.
After finding that the trial court was within its discretion to not consider the plaintiff’s late-filed opposition to the summary judgment motion, the Court of Appeals analyzed whether the defendant negated the essential elements of causation and damages such that summary judgment was appropriate here. For her HCLA claim related to the surgery, the plaintiff needed to prove causation by expert testimony, i.e., that “as a proximate result of the defendant’s negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred.” (internal citation omitted). The facts in this case showed, however, that the plaintiff chose the procedure “after appropriate informed consent was obtained.” Further, the treatment she chose was consistent with what other similar patients choose. Plaintiff’s own expert testified that lymphedema can occur in the absence of negligence, and that follow up revision surgeries are commonly needed. Viewing the case as a whole, the Court found that the plaintiff did not offer sufficient evidence to show that any of her post-surgery injuries were caused by the defendant’s negligence.
The Court of Appeals also considered the plaintiff’s informed consent theory. In order to support her claim, the plaintiff needed to prove through expert testimony that “a reasonable person in [the plaintiff’s] shoes would not have chosen to proceed with a double mastectomy…had that person been adequately informed of the risks of the treatment.” (internal citation omitted). Here, the admissible expert testimony was that similar patients often chose this treatment route, and that the expert himself had performed this treatment many times. The Court wrote that “this fact [was] fatal to Plaintiff’s informed consent case.”
Because the elements of causation and damages were negated, summary judgment for the defendant surgeon was affirmed.
One final point. They are called “scheduling orders” and not “scheduling suggestions” for a reason. If you find that you cannot meet a deadline then you should file a motion for an enlargement of time before the deadline expires (although that will probably not work either if you have consistently missed other deadlines in the case). I am not sure whether the papers the plaintiff filed (late) would have made a difference in the outcome of this case, but I do know that the plaintiff will likely think the late filing made a difference.
This case was released three months after oral arguments in this case.