concurring in part and dissenting in part.
I concur in the majority’s holding that the judgment cannot rest upon the theory that Dr. Trulock’s non-disclosure of his cocaine use is actionable as an independent tort of fraud. I do not, however, agree with the majority’s conclusion that a recovery cannot be based upon the alternative theory that Dr. Trulock committed a battery against Mr. Cleveland.
Medical negligence is not the only possible tort which can arise from the doctor-patient relationship. To avoid civil liability for a battery, a physician has the duty to obtain his patient’s consent to undergo treatment. OCGA §§ 51-1-13; 51-11-1. “The relation of physician and patient is a consensual one, and a physician who undertakes to treat another without express or implied consent of the patient is guilty of at least a technical battery.” Mims v. Boland, 110 Ga. App. 477 (2) (138 SE2d 902) (1964). Insofar as Dr. Trulock’s civil liability for commission of a battery is concerned, it is immaterial whether he conformed to the applicable standard of care, since performance of an unauthorized medical procedure is actionable regardless of the skill with which it was accomplished. See Irwin v. Arrendole, 117 Ga. App. 1, 5 (4) (159 SE2d 719) (1967). Likewise, the question of damages is not a bar to Mr. Cleveland’s recovery under a battery theory, since nominal damages are authorized even if the injury is small or the mitigating factors are strong. OCGA § 51-12-4; Southern Finance Co. v. Alexander, 113 Ga. App. 740, 741 (2) (149 SE2d 526) (1966). “As a general rule, no tort is committed against a person who consents to medical treatment unless that consent is not freely obtained or is obtained by fraud. [Cit.] A valid general consent negates any actionable claim for battery. [Cits.]” (Emphasis sup*304plied.) Lloyd v. Kramer, 233 Ga. App. 372, 375 (1) (503 SE2d 632) (1998). The dispositive issue in this case is whether Dr. Trulock’s failure to disclose his use of and addiction to cocaine was a fraudulent misrepresentation of a material fact which invalidated Mr. Cleveland’s consent to undergo the recommended surgical procedure. In this connection, the record shows that Dr. Trulock specifically admitted that he intended for his patients not to know that he used cocaine.
A physician and patient share a confidential relationship. Keenan v. Plouffe, 267 Ga. 791, 794 (2) (482 SE2d 253) (1997). Where such a relationship exists, silence when one should speak or the failure to disclose what one ought to reveal is equivalent to an actual affirmative false representation. Morris v. Johnstone, 172 Ga. 598, 605 (158 SE 308) (1931). OCGA § 31-9-6.1 (a) enumerates certain general risks that are inherent in medical procedures, which risks the physician must disclose so as to obtain the patient’s valid consent. Because the doctor’s use of an illegal drug is not included in the statutory list, the majority concludes that there is no requirement for disclosure absent a specific inquiry by the patient. Were Dr. Trulock’s use of illegal drugs a general and inherent risk of the medical procedure which he recommended, I could agree that its absence from the list in OCGA § 31-9-6.1 (a) is dispositive of Mr. Cleveland’s battery claim. However, the General Assembly’s mandated disclosure of the general and inherent risks of a medical procedure does not indicate a legislative intent to insulate a physician from liability for the fraudulent concealment of any and all other forms of risks to the patient. In my opinion, the concept of valid consent to undergo a medical procedure encompasses more than the procedure itself, and includes the qualifications or lack thereof of the one who is proposing himself as the professional who will perform that procedure. See Sutlive v. Hackney, 164 Ga. App. 740, 742 (297 SE2d 515) (1982), overruled on other grounds, Hunter, Maclean, Exley & Dunn, P.C. v. Frame, 269 Ga. 844, 849 (1) (507 SE2d 411) (1998). “ ‘Consent’ is ‘a voluntary yielding of the will,’ or ‘a rational and voluntary concurrence in an act.’ [Cit.] . . . Consent is an act of reason accompanied with deliberation. [Cit.]” Shehany v. Lowry, 170 Ga. 70, 72 (152 SE 114) (1930). Dr. Trulock obtained Mr. Cleveland’s consent to undergo the recommended medical procedure and to perform that procedure himself. Certainly, the qualifications of the particular physician, no less than the general and inherent risks of the suggested medical procedure, are of concern to the patient whose authorization is being sought. With regard to the risks of the procedure itself, Dr. Trulock complied with OCGA § 31-9-6.1 (a) and made the requisite disclosures. However, the controlling issue is whether Dr. Trulock’s illegal drug use was material to Mr. Cleveland’s consent to undergo the recommended *305procedure, and the mere fact that that factor is not otherwise enumerated in the irrelevant provisions of OCGA § 31-9-6.1 (a) should have no bearing on the determination of this issue.
Except in plain and palpable cases, the issue of materiality must be submitted to the jury. Norris v. Hart, 74 Ga. App. 444, 446 (40 SE2d 96) (1946). Under the evidence, Dr. Trulock’s failure to disclose his cocaine use is not clearly and palpably immaterial to Mr. Cleveland’s consent to undergo the medical procedure. Indeed, the majority concedes the materiality of the non-disclosure by acknowledging that it cannot question the sincerity or merit of Mr. Cleveland’s assertion that he would not have consented to treatment by Dr. Trulock had the cocaine use been disclosed. If the jury was authorized to believe Mr. Cleveland’s contention that the undisclosed cocaine use was material to his decision to accept Dr. Trulock’s recommendation, then neither the trial court nor this Court is authorized to conclude that, to the contrary, Mr. Cleveland’s consent nevertheless was valid as a matter of law. Norris v. Hart, supra.
Seeking to justify its decision on public policy grounds, the majority opines that it is impossible to define those life factors which should be subject to disclosure by a professional. This public policy argument is completely irrelevant, however, since we deal here only with the medical profession and the specific requirement that, in order to avoid liability for the intentional tort of battery, the physician must obtain the patient’s consent. Indeed, in the context of this case, we do not even need to draw a bright line rule establishing exactly what a physician who is charged with a battery must disclose in order to demonstrate that the patient gave a valid consent to the touching. It is undisputed that, at the time of the procedure, Dr. Trulock was addicted to and used cocaine and that the use of that drug is always illegal. OCGA §§ 16-13-26 (1) (D); 16-13-30 (a). Both the commission of a crime of moral turpitude and the use of illegal drugs are factors which can result in the loss of a physician’s license to practice medicine in this state. OCGA § 43-34-37 (a) (4), (13). Thus, resolution of this case does not depend on whether Dr. Trulock measures up to Mr. Cleveland’s subjective beliefs and standards. Dr. Trulock has violated the beliefs and standards of society in general and his profession in specific. Regardless of where the line ultimately is drawn with regard to a doctor’s duty to disclose in order to avoid civil liability for an unauthorized touching, Dr. Trulock crossed that line when he obtained Mr. Cleveland’s consent without disclosing a factor which could result in the doctor’s criminal prosecution and put his professional license in jeopardy.
In my opinion, this appeal is controlled by the principle that consent which is obtained by a material misrepresentation is invalid, since fraud vitiates all contracts. See generally Dye v. Wall, 6 Ga. *306584, 586 (1) (1849). The majority creates an exception to that rule when the contract at issue involves a physician who offers to perform a recommended procedure and a patient who agrees to accept that recommendation. In accordance with today’s opinion, such an agreement is valid, as a matter of law, despite the physician’s intentional suppression of the fact of his ongoing addiction to and use of cocaine, which fact was clearly material to the validity of the patient’s consent. Because I believe that a jury would be authorized to find that Dr. Trulock’s non-disclosure of his addiction to and use of cocaine vitiated Mr. Cleveland’s consent to undergo the medical procedure, I dissent to the determination that the judgment cannot rest on a battery theory.
Decided March 6, 2000 Reconsideration denied April 13, 2000. Watson, Spence, Lowe & Chambless, Thomas S. Chambless, Dawn O. Benson, Donaldson, Bell & Pickett, George P. Donaldson III, Tillman, McTier, Coleman & Talley, Wade H. Coleman, for appellants. William S. Stone, T Craig Earnest, for appellees. Troutman Sanders, Harold G. Clarke, Hall, Booth, Smith & Slover, John E. Hall, Jr., Jonathan Marigliano, Bondurant, Mixson & Elmore, Emmet J. Bondurant, Michael B. Terry, Frank M. Lowrey IV, Rogers & Hardin, Robert B. Remar, Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, Thrasher, Whitley, Hampton & Morgan, Robert E. Whitley, William M. Earnest, Jr., Alston & Bird, Jack S. Schroder, Jr., Angela T. Burnette, Tisinger, Tisinger, Vance & Greer, David H. Tisinger, Richard G. Tisinger, Jr., David A. Cook, William T. Clark, amici curiae. I am authorized to state that Justice Hunstein and Justice Thompson join in this opinion.