ALICE SANDERS and JAMES )
SANDERS, )
)
Plaintiffs/Appellants, )
) Appeal No.
VS. ) 01-A-01-9707-CV-00357
)
DR. ALVERNICA WHITFIELD and ) Davidson Circuit
UNITED NEIGHBORHOOD HEALTH ) No. 96C-1458
SERVICES, INC., a Tennessee )
Corporation, )
Defendants/Appellees,
)
) FILED
)
CAYCE FAMILY HEALTH CENTER, ) December 19, 1997
INC., )
) Cecil W. Crowson
Defendant. ) Appellate Court Clerk
COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE BARBARA N. HAYNES, JUDGE
G. KLINE PRESTON, IV
Washington Square Two
222 Second Avenue North
Suite 416
Nashville, Tennessee 37201
Attorney for Plaintiffs/Appellants
TRACY SHAW
HOWELL & FISHER
Court Square Building
300 James Robertson Parkway
Nashville, Tennessee 37201-1107
Attorney for Defendants/Appellees
AFFIRMED AND REMANDED
BEN H. CANTRELL, JUDGE
CONCUR:
TODD, P.J., M.S.
KOCH, J.
OPINION
The plaintiff brought an action against the defendant dentist which
alleged that the defendant had failed to obtain her informed consent before attempting
a root canal. The question on appeal is whether the plaintiff may proceed without
expert testimony that the defendant deviated from the standard of care. The Circuit
Court of Davidson County granted summary judgment to the defendant. We affirm.
I.
In March of 1995 the plaintiff, Alice Sanders, consulted the defendant,
a dentist at United Neighborhood Health Services, Inc., about the severe pain the
plaintiff was experiencing in one of her teeth. The defendant conducted an
examination and diagnosed the plaintiff’s problem as a periapical abscess, which
would require root canal therapy. On April 18, 1995 the plaintiff returned for the
suggested treatment, but during the course of the procedure, the defendant
discovered that she could not perform root canal surgery because the canal was
calcified. The plaintiff alleges that she subsequently lost the tooth and endured
excruciating pain.
The plaintiff sued the defendant and the defendant’s employers alleging
various causes of action. The complaint, however, was subsequently amended to
restrict the claims to the following:
8. That prior to attempting to perform the root
canal, Defendant Dr. Alvernica Whitfield failed to obtain
the informed consent of Plaintiff Alice Sanders.
9. Plaintiff avers that Defendant Whitfield did
not advise Plaintiff Sanders as to the potential risks of
performing a root canal and, therefore, did not adequately
inform Mrs. Sanders in obtaining her consent in
accordance with the recognized standard of acceptable
professional practice in the profession and in the specialty
that the Defendant practices in the community.
* * *
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13. Plaintiff avers that Defendant’s failure to
obtain her effective informed consent resulted in a battery
to her.
The defendant moved for summary judgment and filed her own affidavit
in which she said that she complied with the standard of care in Davidson County and
that she explained to the plaintiff in detail the procedure, the risks, and the potential
complications of the root canal treatment.
The plaintiff opposed the motion for summary judgment with her own
affidavit in which she said the defendant did not explain to her any risks or
complications of the procedure.
The trial court granted the motion for summary judgment.
II.
The plaintiff asserts that expert medical proof is not required to establish
a cause of action against the defendant (1) because the malpractice lies within the
common knowledge of laymen, Runnels v. Rogers, 596 S.W.2d 87 (Tenn. 1980), or
(2) because the cause of action is for a battery and not for malpractice, Cardwell v.
Bechtol, 724 S.W.2d 739 (Tenn. 1987).
We think the first contention fails because we do not think that the
common knowledge of laymen includes knowledge of what specific information or
warnings should be given to a person about to undergo root canal therapy. In
addition, the medical malpractice act includes the following:
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 (to the
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procedure out of which plaintiff’s claim allegedly arose) 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.
In German v. Nichopoulos, 577 S.W.2d 197 (Tenn. App. 1978), the court
held that this section required expert proof of the usual and customary advice given
to patients to procure consent in similar situations. The plaintiff argues that this case
is different from German v. Nichopoulos because she asserted in her affidavit that the
defendant did not give her any advice before beginning the procedure. But we think
the case is exactly like German v. Nichopoulos where the court said:
Counsel insists that simply because plaintiff testified that
no one told her of any possible risks prior to receiving the
injection, a prima facie case based on lack of informed
consent was made out. We disagree and hold, as did the
Middle Section of this Court in an unreported case, that,
in matters of informed consent the plaintiff has the burden
of proving by expert medical evidence, (a) what a
reasonable medical practitioner of the same or similar
communities under the same or similar circumstances
would have disclosed to the patient about attendant risks
incident to a proposed diagnosis or treatment and (b) that
the defendant departed from the norm.
577 S.W.2d at 204. Therefore, if the claim is based on medical malpractice it fails for
a lack of proof on the standard of care.
If the claim is for battery, it seems that we come out at the same place.
Treating a patient without giving the patient adequate information to make an informed
decision to submit to treatment amounts to a battery. Cardwell v. Bechtol, 724
S.W.2d 739 (Tenn. 1987). But, Tenn. Code Ann. § 29-26-118 “explicitly requires as
part of the plaintiff’s burden or proof that the standard of care for obtaining informed
consent must be shown by expert evidence . . . .” Id. at 750. “Whether the defendant
failed to obtain informed consent is dependent upon the standard of care of the
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profession or specialty . . . .” Id. Therefore, we think the plaintiff’s cause of action for
battery also fails for a lack of expert proof.
The judgment of the trial court is affirmed and the cause is remanded
to the Circuit Court of Davidson County for any further proceedings necessary. Tax
the costs on appeal to the appellants.
_____________________________
BEN H. CANTRELL, JUDGE
CONCUR:
_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
_______________________________
WILLIAM C. KOCH, JR., JUDGE
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IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
ALICE SANDERS and JAMES )
SANDERS, )
)
Plaintiffs/Appellants, )
) Appeal No.
VS. ) 01-A-01-9707-CV-00357
)
DR. ALVERNICA WHITFIELD and ) Davidson Circuit
UNITED NEIGHBORHOOD HEALTH ) No. 96C-1458
SERVICES, INC., a Tennessee )
Corporation, )
)
Defendants/Appellees, )
)
CAYCE FAMILY HEALTH CENTER, ) Affirmed and
INC., ) Remanded
)
Defendant. )
JUDGMENT
This cause came on to be heard upon the record on appeal from the
Circuit Court of Davidson County, briefs and argument of counsel; upon consideration
whereof, this Court is of the opinion that in the judgment of the trial court there is no
reversible error.
In accordance with the opinion of the Court filed herein, it is, therefore,
ordered and adjudged by this Court that the judgment of the trial court is affirmed.
The cause is remanded to the Circuit Court of Davidson County for the execution of
the judgment and for the collection of the costs accrued below.
Costs of this appeal are taxed against Alice and James Sanders,
Principals, and Kline Preston, Surety, for which execution may issue if necessary.
ENTER _______________________.
_________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
_________________________________
BEN H. CANTRELL, JUDGE
_________________________________
WILLIAM C. KOCH, JR., JUDGE