FILED

July 13, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

FOR PUBLICATION

Filed: July 13, 1998

FRANCES BLANCHARD, )

)

PLAINTIFF/APPELLANT, ) SHELBY CIRCUIT

)

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

O P I N I O N

REVERSED AND REMANDED HOLDER, J.
2

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.
3

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.
4

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. 
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

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.
6

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. West 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 nonresponsive 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.
2We 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

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.