IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
FOR PUBLICATION
Filed: July 13, 1998
FILED
July 13, 1998
FRANCES BLANCHARD, )
)
Cecil Crowson, Jr.
PLAINTIFF/APPELLANT, ) SHELBY CIRCUIT
Appellate C ourt Clerk
)
v. ) Hon. George H. Brown, Jr.
)
ARLENE KELLUM, D.D.S., ) No. 02S01-9709-CV-00083
)
DEFENDANT/APPELLEE. )
FOR APPELLANT: FOR APPELLEE:
TIMOTHY A. RYAN III GEORGE P. BAILEY
MEMPHIS MEMPHIS
OPINION
REVERSED AND REMANDED HOLDER, J.
OPINION
The issues with which we are confronted are: (1) whether expert
testimony is required in a medical battery case when a doctor performs an
unauthorized procedure; and (2) whether the defendant's affidavit in the case
now before us triggered the non-movant's burden pursuant to McCarley v. West
Quality Food Serv., 960 S.W.2d 585 (Tenn. 1998), and Byrd v. Hall, 847 S.W.2d
208 (Tenn. 1993). We hold that expert testimony is not required in a medical
battery case, that the plaintiff's cause of action was properly premised on a
medical battery theory, and that the defendant's conclusory affidavit did not
trigger the plaintiff's burden in this motion for summary judgment. The Court of
Appeals' decision is reversed, and the case is remanded to the trial court.
FACTS
The plaintiff, Frances Blanchard, sought treatment for a gum-related
problem and was advised by a periodontal specialist to have her teeth extracted.
The plaintiff then sought the services of the defendant, Arlene Kellum, D.D.S.
During an appointment with Dr. Kellum, Dr. Kellum anesthetized the plaintiff's
entire oral cavity and began a full extraction of all thirty-two of the plaintiff's teeth.
The plaintiff alleges that Dr. Kellum never informed her that all thirty-two
teeth would be simultaneously extracted during a single office visit. The plaintiff
asserted in her complaint that the pain became unbearable and that she refused
to allow Dr. Kellum to proceed with further extractions. The record indicates that
Dr. Kellum had extracted sixteen teeth when instructed by the plaintiff to cease
further extractions. The plaintiff became disoriented and allegedly lost
consciousness while in Dr. Kellum's office. She was transported to St. Francis
Hospital where she was admitted and treated by physicians.
2
The plaintiff filed suit against Dr. Kellum alleging both battery/lack of
consent and that Dr. Kellum's services "fell below the standards of reasonable
care and practice in this community." She asserted in answers to the
defendant's interrogatories that Dr. Kellum did not inform her that all thirty-two
teeth were to be extracted during a single procedure. The plaintiff maintained
that she would not have consented to having a full extraction during a single
office visit. Following the plaintiff's release from the hospital, Dr. Kellum
completed the extractions in a series of separate appointments.
Dr. Kellum filed a motion for summary judgment supported by what can
best be described as a conclusory affidavit. A memorandum in support of the
motion argued that the plaintiff had "failed to state specifically what the
applicable standard of care in this case was." The memorandum also alleged
that the plaintiff had failed to allege specifically what actions by Dr. Kellum
deviated from the applicable standard of care. The motion was supported by Dr.
Kellum's affidavit that merely stated: (1) that her treatment was "administered in
a recognized and approved form accepted and followed by [sic] significant
segment of the profession" of which she practices; (2) if the plaintiff "sustained
any injury or damage, it was not related . . . or caused by . . . any negligence" on
Dr. Kellum's part; and (3) that her treatment of the plaintiff did not fail to meet
the appropriate standard of care. Dr. Kellum's affidavit neither set forth a
standard of care nor alleged that the plaintiff authorized a full extraction.
The trial court granted the defendant's motion for summary judgment
finding that there were no "genuine issues of material fact." The plaintiff
apparently abandoned the medical malpractice issue on appeal but did assert
that the trial court erred in dismissing the battery/consent issue. The Court of
Appeals found that the plaintiff failed "to come forward with evidence, in the form
of an expert opinion," and affirmed the trial court's dismissal.
3
ANALYSIS
The plaintiff has alleged that she did not give Dr. Kellum permisson to pull
thirty-two teeth during the office visit giving rise to this litigation. The plaintiff
contends that her claim on appeal is predicated upon a theory of "a violation of
plaintiff's person" or "an actionable battery" and is not "related to medical or
professional negligence." She argues that expert testimony should not be
required merely to show whether Dr. Kellum procured permission to perform the
extractions.
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.
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.
4
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 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.
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.
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 suffe red injuries as a pro xima te caus e of the de fendan t’s act.
5
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.
Our next inquiry is whether the defendant's efforts, as the movant in a
motion for summary judgment, properly negated an essential element of the
plaintiff's medical battery case or established an affirmative defense. Absent the
negation of an essential element or establishment of an affirmative defense, the
burden does not shift to the non-movant in a summary judgment proceeding.
See McCarley v. W est Quality Foods Serv., 960 S.W.2d at 588 ("If the movant
does not negate a claimed basis for the suit, the non-movant's burden to
produce either supporting affidavits or discovery materials is not triggered and
the motion for summary judgment fails.").
Dr. Kellum's affidavit merely contains a conclusory statement that she
acted "in a recognized and approved form . . . and that such treatment would not
and did not fail to meet the standard of care . . . ." The affidavit is non-
responsive to the plaintiff's allegation that Dr. Kellum failed to inform the plaintiff
of her intention to perform a full extraction during the appointment giving rise to
this litigation. Moreover, Dr. Kellum's brief relies on a theory of implied consent:
[When the p]laintiff came in, sat down in the dental chair, allowed
the Doctor to anesthetize her entire oral cavity, and willingly
submitted to the extraction of sixteen (16) teeth - that it is
reasonable for the Defendant/Appellee Doctor to presume that she
has the Patient's "consent" to extract her teeth.
6
A theory of implied consent does not negate an essential element of the
plaintiff's claim.2 The defendant must proffer admissible evidence establishing
that the plaintiff authorized a full extraction to trigger the plaintiff's burden, such
as a signed consent form authorizing a full extraction. Reliance on an implied
consent theory or a mere allegation that the plaintiff authorized the procedure
creates material issues of fact.
We hold that Dr. Kellum's affidavit did not negate an essential element of
the plaintiff's claim or establish an affirmative defense. Accordingly, the burden
did not shift to the plaintiff. See McCarley, 960 S.W.2d at 588; Byrd, 847 S.W.2d
at 215 (Tenn. 1993). Summary judgment on the issue of battery is reversed,
and the case is remanded to the trial court for proceedings consistent with this
opinion. Costs of this appeal shall be taxed to the defendant, Dr. Arlene Kellum,
D.D.S., for which execution may issue if necessary.
JANICE M. HOLDER, JUSTICE
CONCURRING:
Anderson, C.J.
Drowota and Birch, J.J.
2
We question whether a patient who is under the influence of an anesthetic and is in the
process of undergoing an extensive dental procedure can either authorize a procedure or
formulate an intelligent and informed decision during the proced ure itself.
7