§47.4 Battery

The Case: Blanchard v. Kellum , 975 S.W.2d 522 (Tenn. 1998).

The Basic Facts: Plaintiff sued periodontal specialist alleging battery and lack of informed consent after he removed half of her teeth, allegedly without her permission.

The Bottom Line:

• "We believe that there is a distinction between: (1) cases in which a doctor performs an unauthorized procedure; and (2) cases in which the procedure is authorized but the patient claims that the doctor failed to inform the patient of any or all the risks inherent in the procedure. Performance of an unauthorized procedure constitutes a medical battery. A simple inquiry can be used to determine whether a case constitutes a medical battery: (1) was the patient aware that the doctor was going to perform the procedure (i.e., did the patient know that the dentist was going to perform a root canal on a specified tooth or that the doctor was going to perform surgery on the specified knee?); and, if so (2) did the patient authorize performance of the procedure? A plaintiff's cause of action may be classified as a medical battery only when answers to either of the above questions are in the negative. If, however, answers to the above questions are affirmative and if the plaintiff is alleging that the doctor failed to inform of any or all risks or aspects associated with a procedure, the patient's cause of action rests on an informed consent theory." 975 S.W.2d at 524.
• "Informed consent cases require, by statute, expert evidence to establish whether the information provided to the patient deviated from the usual and customary information given to patients to procure consent in similar situations. See generally German v. Nichopoulos, 577 S.W.2d 197 (Tenn. Ct. App. 1978) (holding expert evidence required to establish informed consent when patient knew of procedure to be performed but alleged that no risks associated with procedure were disclosed); see also Tenn. Code Ann. § 29-26-115, -118.1

  In a malpractice action, the plaintiff shall prove by evidence as required by 29-26-115(b) that the defendant did not supply appropriate information to the patient in obtaining his informed consent in accordance with the recognized standard of acceptable professional practice in the profession and in the specialty, if any, that the defendant practices in the community in which he practices and in similar communities.

  Tenn. Code Ann. § 29-26-118.
  
  Pursuant to Tenn. Code Ann. § 29-26-115(b), a plaintiff bears the burden of proving the recognized standard of acceptable professional practice, that the defendant acted with less than ordinary and reasonable care in accordance with that standard, and that the plaintiff suffered injuries as a proximate cause of the defendant's act." Id.
• "The inquiry focuses on whether the doctor provided any or adequate information to allow a patient to formulate an intelligent and informed decision when authorizing or consenting to a procedure. Shadrick v. Coker, M.D., [963 S.W.2d 726 (Tenn. 1998)]. To determine the adequacy of information provided in an informed consent case, a court must consider the nature of the medical treatment, extent of the risks involved and the applicable standard of care. Id.; Tenn. Code Ann. § 29-26-118. These determinations require expert testimony and are outside the common knowledge of a lay witness." Id.
• "Lack of informed consent in a medical malpractice action under Tenn. Code Ann. § 29-16-118 operates to negate a patient's authorization for a procedure thereby giving rise to a cause of action for battery. Cardwell v. Bechtol, 724 S.W.2d 739, 750-51 (Tenn. 1987). There is, however, no prior authorization or consent in a medical battery case to be negated by expert testimony. The primary consideration in a medical battery case is simply whether the patient knew of and authorized a procedure. This determination does not require the testimony of an expert witness." Id.
• "The plaintiff argues that she was not aware of Dr. Kellum's intention to perform a full extraction and that she did not authorize a full extraction during the office visit giving rise to this litigation. Consequently, the plaintiff's claim is appropriately classified as a medical battery." Id. at 524-25.

Other Sources of Note: Holt v. Alexander, No. W2003-02541-COA-R3-CV, 2005 WL 94370 (Tenn. Ct. App. Jan. 13, 2005) (alleged misrepresentation created jury issue on medical battery claim notwithstanding signed consent form and the absence of expert testimony); Church v. Peralas, 39 S.W.3d 149 (Tenn. Ct. App. 2000) (extension discussion of medical battery and causation, including the type of proof to be considered in a medical battery case and the significance of a patient's signature on an "informed consent" document authorizing a procedure).

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