Blanchard v. Kellum

975 S.W.2d 522, 1998 Tenn. LEXIS 432, 1998 WL 664948
CourtTennessee Supreme Court
DecidedJuly 13, 1998
Docket02S01-9709-CV-00083
StatusPublished
Cited by133 cases

This text of 975 S.W.2d 522 (Blanchard v. Kellum) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blanchard v. Kellum, 975 S.W.2d 522, 1998 Tenn. LEXIS 432, 1998 WL 664948 (Tenn. 1998).

Opinions

OPINION

HOLDER, Justice.

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 plaintiffs 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.

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 faded 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 [524]*524form of an expert opinion,” and affirmed the trial court’s dismissal.

ANALYSIS

The plaintiff has alleged that she did not give Dr. Kelhim 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 ease 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 plaintiffs 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 eases 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 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,

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Cite This Page — Counsel Stack

Bluebook (online)
975 S.W.2d 522, 1998 Tenn. LEXIS 432, 1998 WL 664948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blanchard-v-kellum-tenn-1998.