# FILED
July 13, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COUR T OF TENNESSEE AT JA CKSON

FOR PUBLICA

TION Filed: July 13, 1998

FRANCES BLANCHARD, ) ) PLAINTIFF/A PPELLANT, ) 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 REMAND ED HOLDER, J.2 OPINION
The issues with which we are confronted are: (1) whether expert testimony is requir

ed in a medical battery ca se when a doctor performs an unauthorized procedure; and (2) whether the defendant's af fidavit in the case now before us trigger

ed the non-movant's burden purs uant to McCarley v. West Quality Fo od 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 medi cal battery case, that the plai ntiff's cause of action was proper ly premised on a medical battery theory , and that the defendant's conclusory affidavit did not trigger the plainti

ff's burden in this motion for summary judgment. The Court of Appeals' decision is rev ersed, and the case is remanded t o the trial court.

FACTS
The plaintiff, Frances Blanchard, s ought treatment for a gum-rel ated problem and was advised by a periodontal special ist to have her teeth ex tracted. The plaintiff then sought the serv ices 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 extracti on of all thirty-tw o of the plaintiff's teeth.
The plai ntiff a lleges tha t Dr. Kellu m never inf ormed he r that all t hirty-two teeth w ould be s imultan eously extrac ted duri ng a sin gle offi ce vis it. The p lainti ff asserted in her complaint tha t the pain became unbearable and that s he refused to allow Dr. Kellum t

o proceed with further ex tractions. The record indi cates 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 D r. Kellum alleging bo th battery/lack of consent and that Dr. Kellum's services "fell below the standards of reason able care and practice in this community." She asserted in answers to the defend ant's int errogato ries that Dr. Kellum did not in form he r that all t hirty-two teeth were to be extrac ted during a single pr

ocedure. The plaintiff maintained that she would not have consented to having a full extraction during a single office visit. Follow

ing the plaintiff's release from the hospital, Dr. Kellum completed the extractions in a series of separate appointm ents.

Dr. Kellum filed a motion for summar y judgment supported by what can best be described as a conclu sory affidavit. A memorandum i n 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 al so alleged that the plaintiff had failed to alleg e specifically what actions by Dr. Kellu m deviated from the applicable standard of care. T he motion was supported by Dr. Kellum's affidavit that merely stated: (1) that her treatment was "adm inistered in a recognized and approv ed form accepted and followed by [sic] significant segment of the profession" of which she practices; (2) if the plaintiff "sustained any injury or damag e, 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 nei ther set forth a standard of care nor alleged that the plaintiff authorized a full extraction.
The trial court granted th e defendant's motion for summary judg ment finding that the re wer

e no "gen uine is

sues of ma

terial fact." Th e plaintiff apparently abandoned the medical malpractice issue on appeal but did assert that the trial court err

ed in dismissing the batter y/consent issue. The Cour t of Appeals found that the plaintiff failed "to come forward with evidence, in the form of an expert opinion," and affirmed th e trial court's dismissal.4 ANAL YSIS
The plaintiff has alleged that she did not give Dr. Kellum permisson to pull thirty -two t eeth dur ing the office v isit g iving

rise to this litigati on. The pl aintiff contends that her claim on appeal is predicated upon a theory of "a violation of plaintiff's person" or "an actionab le battery" and is not "re lated to medical or professional negligence." She argues that expert t estimony should not be required merely to s how whether Dr. Kel lum procured permission to pe rform the extractions.

We believe that there is a distincti on between: (1) cases i n which a doctor performs an unauthoriz ed 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 ri sks inherent in the procedur e. Performance of an unauthorized procedure cons titutes a medical battery . A simple inquiry can be used to determine whether a c ase constitutes a medical batte ry: (1) was the patient aware that the doctor was going to perform the procedure (i.e., did the patient know that the dentis t was going to perfor

m 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 proced ure? A plaintiff's cause of action may be c lassified as a medical battery only when answers to either of the above questions are in the negative. If, however, answers to the above q uestions are affirmative and if the plaintiff is alleging that the doctor failed to inform of any or all risks or aspects

associated with a procedu re, the pa tient's c ause of action re sts on an i nforme d consen t theory.
Informed consent cases require, by statute, expert evidence to establish whether the information prov ided to the patient deviated from the usual and customary information giv en to patients to procure cons ent in similar situation s.1 In a malpractice action, the plaintiff shall prove by eviden ce as required by 29-26-115( b) that t he defendant di d not supply appropriat

e informati on to the pat ient i n obtaini ng his inf ormed consent in accordance wi th the recognized standard of acceptable pr

ofessional practice i n the profession and i n the specialty, i f any, t hat the defendant pract ices in t he community in whi ch he practices and in simil ar communities. Tenn. Code Ann. § 29-26-1 18. Pursuant t o Tenn. Code Ann. § 29-26- 115(b), a pl ainti ff bears the burden of provi ng the recogni zed standard of acceptable pr

ofessional practice, that th e defendant acted wit h less than or dinary and reasonable car e 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 ev

idence required to establ ish informed consent when pati ent knew of procedure to be performed but alleged that no risks associated with procedure were discl osed); see also Tenn. Code Ann. § 29-26-115, -118. 1 The inquiry focuses on w

hether the doctor provided any or adequate

information to allow a patient to formulate a n intelligent and informed deci sion when authorizi ng or consenting to a procedur e. Shadrick v. Coker, M.D. , 963 S.W.2d 726 (Tenn. 1998). To determine the adequacy of information provided in an i nformed consent case, a court must cons ider the nature of the medical tr eatment, extent of the risks involv

ed and the applicable standard of car e. 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 mal practice action under Tenn. Code Ann. § 29-16-118 operates to negate a patient 's authorization for a procedure thereby giv

ing rise to a cause of acti on for battery. Cardwell v. Bechtol , 724 S.W.2d 739, 750-51 (Tenn. 1987). There is, how ever, 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 w as not aware of Dr. Kellu m's intention to perform a full extraction and that she did not authorize a ful l extraction during the office visit giving rise to this litigation. Consequently, the plaintiff's claim is appropr iately cla ssified as a medic al batte ry.
Our next inquiry

is whether the defendant's efforts,as the movant in a motion for summary judgment, pr operly negated an essenti al element of the plaintiff's medical battery case or established an affirmativ e defense. Absent the negation of an essential element or establishment of an affirmative defense, the burden does not shift to the non-mov ant in a summary judgment pr oceeding. See McCarley v. W est Quali ty Foods Se rv. , 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 discover

y materials is not tr

iggered and the motion for summary judgment fails.").

Dr. Kellum's affidavit merel y contains a conclusory statement that she acted "in a recognized a nd approved form . . . and that suc h treatment would not and did not fail to meet the standard of care . . . ." The affidavit is nonrespons ive to the plaintiff's al legati on that D r. Kell um failed to infor m the pla intiff of her intention to perform a full ex traction during the appointment giving ris e to this litigation. M oreover, 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 ex tract her teeth.2 We question whether a pati ent who is under the infl uence of an anesthet ic and is i n the process of undergoi ng an extensiv e dental pr

ocedure can eit her authori ze 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 c

laim. 2 The defendant must proffer admissible evi dence establishing that the plaintiff authorized a full extraction to trigger the plaintiff 's burden, such as a signed consent form authori zing a full extrac tion. Reliance on an impli ed consent theory or a mere allegation that the plaintiff auth orized the procedure creates material issues o f fact.

We hold that Dr. Kellum's affidavit did not negate an essential element of the plaintiff's claim or establ ish an affirmative defense. Accor dingly, 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 ju dgment on the issue of battery is reversed, and the case is remanded to the trial court for proceedings consisten t with this opinion. Co

sts of this ap peal shall be taxed to th e defendant, Dr. Arlene Kel lum, D.D.S., f or which exe cution m ay issue if necessar y.

JANICE M. HOLDER, JUSTICE

CONCURRING: Anderson, C.J. Drowota and Birch, J.J.