RENDERED: AUGUST 18, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-1324-MR

CHRISSEN MEADE APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT

v. HONORABLE KIMBERLY N. BUNNELL, JUDGE

ACTION NO. 18-CI-04160

STEPHEN A. SCHANTZ, M.D.; AND

WALDMAN SCHANTZ, P.S.C. APPELLEES

OPINION

AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

**   **  **

BEFORE: CETRULO, ECKERLE, AND GOODWINE, JUDGES.

ECKERLE, JUDGE: A patient seeking a breast augmentation was given the 

choice between saline and silicone implants and specifically consented to saline 

implants. During surgery on the first breast, it was discovered that the patient 

required implants almost 50 percent larger than pre-operative measurements 

indicated. Rather than postpone the surgery or implant the largest saline implants 
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in stock, the doctor elected to place silicone implants inside the patient’s body

without obtaining the patient’s consent. After surgery, the doctor informed the 

patient of the material difference, and the patient subsequently sued the surgeon 

and his associated medical practice under various theories of liability. The Trial 

Court ultimately granted summary judgment in favor of the surgeon and his 

associated medical practice, and the patient appealed. Having thoroughly reviewed 

the issues and applicable law, we affirm in part, reverse in part, and remand the 

grant of summary judgment for additional proceedings.

BACKGROUND

We present a summary background here, with a more detailed 

recitation of the evidence in the ANALYSIS section. 

Appellant, Chrissen Meade (“Meade”), is a licensed practical nurse

who desired to enhance the appearance of her breasts. After seeking 

recommendations and looking at reviews, Meade consulted with Appellees, Dr. 

Stephen A. Schantz, M.D. (“Dr. Schantz”) at Waldman Schantz, P.S.C.,

(“Waldman Schantz”) for breast augmentation surgery. During the consultation, 

Meade reviewed numerous photos of breasts and indicated a desire for DD-sized 

breasts.

1

 To achieve this goal, Meade was presented with four different elective 

1

It appears the sizing of breasts by cup size is not universal; the same breasts may be a size C in 

one department store’s brassiere and a DD in another. What was apparent from the photo choice 

book was that Meade desired to substantially increase the size of her breasts.
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procedures: a mini-mastopexy2 with silicone implants; a mini-mastopexy with 

saline implants; a breast augmentation mammoplexy (“BAM”) with silicone 

implants; or a BAM with saline implants. After discussions with Dr. Schantz and a 

review of the consent information about the silicone and saline implants, Meade

chose to have Dr. Schantz perform a BAM with saline implants. The BAM with

saline implants had two distinct differences from the BAM with silicone implants: 

the former was a cheaper option; and the saline implants carried significantly fewer 

cautions in the informed consent than the silicone implants. 

Pre-operative, external measurements showed that Meade likely 

needed a 400 or 500 CC saline implant. Dr. Schantz’s operating room keeps a 

stock of different sized implants, both silicone and saline, on consignment from the 

manufacturers. The stock is replenished by representatives for the manufacturers 

as the products are used and sold. He had the requisite 400 and 500 CC saline 

implants in stock prior to the procedure, along with some other sizes of saline 

implants. 

However, once Dr. Schantz made an incision into one of Meade’s 

breasts and used a sizer to verify what implant would be necessary, he believed

that to achieve the desired “DD” result Meade would require the largest implants 

that are FDA approved, 800 CCs. He did not have any of the 800 CC saline 

2 This procedure is more commonly referred to as a breast lift.
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implants in stock because it is rare to use saline implants and even rarer to need the 

largest sized saline implants. Also, as it is extremely rare that the pre-operative, 

external sizing would indicate a much smaller size than was actually needed, Dr. 

Schantz did not foresee a need to stock the 800 CC size in saline. He did, 

however, have 800 CC silicone implants in stock. Accordingly, Dr. Schantz 

admitted that he had three options: (1) abort the procedure, order the proper size, 

and perform the procedure again at a later date; (2) use the 500 CC saline implants 

and risk Meade not being satisfied with the result; or (3) use the 800 CC silicone 

implants and inform Meade that she could have them switched for saline implants 

using only local anesthesia if she was not satisfied with the silicone implants. 

Though Meade admits her augmented breasts are “nice and 

acceptable” and that Dr. Schantz “did not do a bad job in my opinion,” she 

ultimately filed a Complaint against Dr. Schantz and Waldman Schantz alleging: 

(1) negligence against Dr. Schantz; (2) vicarious liability against Waldman 

Schantz; (3) negligence against Waldman Schantz; (4) battery against both Dr. 

Schantz and Waldman Schantz; and (5) “Lack of informed consent/breach of 

contract” against Dr. Schantz and Waldman Schantz. 

On August 31, 2020, Meade filed a motion for summary judgment, 

arguing that there was a lack of informed consent, and that Dr. Schantz was liable 

for breach of contract. Dr. Schantz later filed a motion for partial summary 
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judgment on the breach of contract claim. The Trial Court denied Meade’s motion 

and granted Dr. Schantz’s partial summary judgment motion. Additionally, the 

Trial Court ordered Meade to disclose her expert witness as it related to informed 

consent and her negligence claim. 

Meade disclosed her expert, Dr. Leland Deane (“Dr. Deane”). In his

deposition, Dr. Deane opined that Dr. Schantz breached the standard of care by 

using silicone implants without the consent of Meade. He further opined that it 

was not a breach of the standard of care to need such substantially larger implants 

than the external examination showed, nor was it unreasonable to believe he would 

not need 800 CC saline implants prior to surgery, nor was it unreasonable to fail to

anticipate a 200 CC or greater difference in the anticipated size needed and the 

actual size needed. Likewise, Dr. Deane stated that a supermajority of women 

elect to have the silicone implants, and that modern silicone implants are generally 

safe. 

Dr. Schantz then filed a motion for summary judgment on all claims, 

which the Trial Court granted, leading to the instant appeal. Each of these motions 

was thoroughly briefed and orally argued below, and the orders entered resolving 

them were summary in nature. Meade now appeals these orders and requests that 

we reverse the grant of summary judgment in favor of Dr. Schantz and Waldman 

Schantz and remand for further proceedings.
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ANALYSIS

Meade’s theories of recovery are admittedly both overlapping and, in 

some respects, contradictory. Principally her claims involve medical battery, 

medical negligence, and breach of contract. As the Trial Court’s Order resolved on 

the motions for summary judgment, the following standard applies:

The proper standard of review on appeal when a 

trial judge has granted a motion for summary judgment is 

whether the record, when examined in its entirety, shows 

there is “no genuine issue as to any material fact and the 

moving party is entitled to a judgment as a matter of 

law.” CR[3] 56.03. The trial judge must view the 

evidence in a light most favorable to the nonmoving 

party, resolving all doubts in its favor. Spencer v. Estate 

of Spencer, 313 S.W.3d 534, 537 (Ky. 2010) (quoting 

Steelvest, Inc. v. Scansteel Service Center, Inc., 807 

S.W.2d 476 (Ky. 1991)). Because summary judgment 

does not require findings of fact but only an examination 

of the record to determine whether material issues of fact 

exist, we generally review the grant of summary 

judgment without deference to either the trial court’s 

assessment of the record or its legal conclusions. Malone 

v. Kentucky Farm Bureau Mut. Ins. Co., 287 S.W.3d 656, 

658 (Ky. 2009) (citing Schmidt v. Leppert, 214 S.W.3d 

309 (Ky. 2007)).

Hammons v. Hammons, 327 S.W.3d 444, 448 (Ky. 2010). With this precedent in 

mind, we now turn to the three claims of liability.

3 Kentucky Rules of Civil Procedure. 
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I. Battery claim

Meade first alleges that Dr. Schantz committed battery by performing 

a BAM with silicone implants rather than a BAM with saline implants. Dr. 

Schantz initially argues that at the trial level Meade stood “mute” and never fairly 

presented an argument on the battery claim. Dr. Schantz requests that we review 

this issue for palpable error. Dr. Schantz admits, however, that Meade at minimum 

made a summary argument that Dr. Schantz committed battery by performing the 

BAM with silicone without her informed consent. 

A. Preservation

We have reviewed the underlying record and find Meade made ample 

noise to press her battery claim. Meade argued throughout the summary judgment 

proceedings, both in written responses and in oral arguments at hearings, that Dr. 

Schantz should be liable for failing to obtain informed consent to perform a BAM 

with silicone implants. Throughout these proceedings the concepts of informed 

consent, medical negligence, and intentional battery blurred together, as even Dr. 

Schantz admits in his brief that the Trial Court concluded the “[c]laim for battery is 

really a claim for medical malpractice because it depends on [the physician’s] 

professional judgment.” Appellee’s Brief at 12. 

Ultimately, the Trial Court granted summary judgment in favor of Dr. 

Schantz on all claims, including the battery claim, rejecting the underlying premise 
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of lack of informed consent. But a lack of informed consent is not the tort. As 

Justice Leibson has previously summarized:

“Lack of informed consent” is not, per se, a tort. It 

is only a term useful in analyzing medical malpractice 

claims involving two different torts: (a) the type of 

assault and battery which occurs when a physician 

performs an unauthorized procedure, i.e., “where a 

patient has not consented to the particular medical 

treatment which was given”; and (b) the type of 

negligence which occurs when a physician has not made 

a “proper disclosure of the risks inherent in a treatment.”

Keel v. St. Elizabeth Medical Center, 842 S.W.2d 860, 862-63 (Ky. 1992) 

(Leibson, J., concurring) (citations omitted) (emphasis in original). Hence, a lack 

of informed consent in a medical battery claim is really just a lack of consent 

claim. See Vitale v. Henchey, 24 S.W.3d 651, 656 (Ky. 2000) (noting the 

confusion between a lack of informed consent claim in medical negligence and a 

lack of consent claim in medical battery). 

In other words, Meade is not raising a wholly new argument, which 

would be unpreserved, see, e.g., Celina Mutual Insurance Co. v. Harbor Insurance

Agency, LLC, 332 S.W.3d 107, 112-13 (Ky. App. 2010), but has fairly presented 

her alternative claims for relief based on the same underlying argument – that there 

was no consent, informed or otherwise, to perform a BAM with silicone implants. 

However, we do agree with Dr. Schantz that Meade never requested 

summary judgment on the battery claim. Indeed, Meade impliedly admits as much 
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as her request for relief on appeal is that we reverse and remand the grant of 

summary judgment in favor of Dr. Schantz. Notably, she does not request that we 

reverse and remand the denial of a summary judgment motion in her favor on the 

battery claim. Accordingly, we will review on appeal whether the Trial Court 

erred by granting summary judgment in favor of Dr. Schantz on the battery claim. 

B. Consent

A medical battery claim is an intentional tort and distinguishable from 

a medical negligence claim. Vitale, 24 S.W.3d at 657-58. A person may establish 

an action for battery “when a physician performs an operation without the consent 

of the patient.” Id. at 656. The medical battery action “is different from a 

negligence action for medical malpractice because the claim depends on neither 

professional judgment nor the physician’s surgical skill.” Id. Accordingly, “[i]n 

establishing a battery claim, a plaintiff must prove the absence of consent.” 

Andrew v. Begley, 203 S.W.3d 165, 172 (Ky. App. 2006) (citing Vitale, 24 S.W.3d 

at 658). Additionally, civil battery in the common law is defined as “any unlawful 

touching of the person of another, either by the aggressor himself, or by any 

substance set in motion by him[.]” Vitale, 24 S.W.3d at 657 (quoting Sigler v. 

Ralph, 417 S.W.2d 239, 241 (Ky. 1967)). Battery is an intentional tort, and the 

intention in medical battery is merely the intention to make contact with the 

person, not to cause harm, and the harmful contact is simply where the touching 
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results in an impairment or alteration of the person’s body. Vitale, 24 S.W.3d at 

658. 

Accordingly, to determine the threshold issue of whether Dr. Schantz 

was entitled to summary judgment on the battery claim, we must determine 

whether there was consent to perform the BAM with silicone implants. Reviewing 

the evidence of record, we hold that there exists a genuine issue of material fact as 

to whether Meade consented to the BAM with silicone implants; thus the Trial 

Court erred by granting summary judgment on the medical battery claim.

“Kentucky courts have repeatedly recognized that valid consent to 

medical treatment is to be gleaned from evidence of the circumstances and 

discussions surrounding the consent process.” Kovacs v. Freeman, 957 S.W.2d 

251, 255 (Ky. 1997). We must look at the written consent documents, which are 

“a component” of the consent process, and also at the discussions had between the 

parties. Hoofnel v. Segal, 199 S.W.3d 147, 150 (Ky. 2006).

Initially, we note that written documentation in this case points to two 

main conclusions, which only a jury may decide: a BAM with saline implants is a 

different procedure with a different risk profile than a BAM with silicone implants; 

and Meade only consented to a BAM with saline implants being performed on her 

person. 
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Prior to surgery, Dr. Schantz made it clear to Meade that the two 

procedures carried different risks. Meade initialed a lengthy document outlining 

specific surgical risks inherent in various breast enhancement procedures. Among 

the risks noted were significantly different risks for either saline or silicone 

implants:

DEFLATION: Saline: The valve through which the 

implant is filled can fail and leak over time. The outer 

shell of the implant can develop a small tear or a pinhole 

defect and leak. While neither of these problems occurs 

frequently, when they do, the saline (fluid) leaks out of 

the implant, and is absorbed by the body. The breast size 

becomes smaller. Sometimes, only a portion of the fluid 

leaks out, and the breast does not deflate all the way to 

the preoperative size. Leakage of saline is not dangerous, 

but the only solution is to replace the implant with a new 

one. 

Silicone: The rupture of a silicone gel-filled breast 

implant is most often silent. This means that neither you 

nor Stephen A. Schantz, M.D. will know that your 

implants have a rupture most of the time. Rupture can 

occur at any time after implantation, but they are more 

likely to occur the longer the implant is implanted. The 

following things may cause your implant to rupture. 

Damage by surgical instruments, stressing the implant 

during implantation, and weakening it, folding or 

wrinkling of the implant shell, excessive force to the 

chest (for example, during closed capsulotomy, which is 

contraindicated), trauma, compression during 

mammographic imaging, and severe capsular contracture. 

Breast implants may also simply wear out over time. If 

rupture occurs, silicone gel may either remain within the 

scar tissue capsule surrounding the implant (intracapsular 

rupture), move outside the capsule (extracapsular 

rupture), or gel may move beyond the breast (migrated 
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gel). There is also a possibility that rupture may progress 

from intracapsular to extracapsular and beyond. There 

have also been health consequences reported in the 

literature. In fact, the ability of a physical examination 

by a plastic surgeon who is familiar with breast implants 

to detect silicone breast implant rupture is 30% compared 

to 89% for MRI. You will need regular screening and 

MRI examinations over your lifetime in order to 

determine if silent rupture is present. You should have 

your first MRI at 3 years after your initial implant 

surgery, then every 2 years, thereafter. The cost of MRI 

screening may not be covered by your insurance, and 

should be considered in making your decision. If implant 

rupture is noted on MRI, you should have the implant 

removed, with or without replacement. Sometimes, these 

are symptoms associated with gel implant rupture. These 

symptoms include hard knots or lumps surrounding the 

implant, or in the armpit, change or loss of size or shape 

of the breast or implant, pain, tingling, swelling, 

numbness, burning, or hardening of the breast. You 

should perform an examination of your breasts to watch 

for these symptoms. These should be reported to 

Stephen A. Schantz, M.D., and possibly evaluated with 

an MRI to screen for rupture.

Surgical Risks p. 19. Additionally, a silicone implant carried a caution regarding 

connective tissue disorder:

PRESENCE OF SILICONE RUBBER/CONNECTIVE 

TISSUE DISORDER: Silicone filled implants are made 

of silicone rubber. Silicone rubber, more commonly 

referred to as silicone elastomer, is a synthetic product. 

Concern over the association of silicone in breast 

implants to the development of autoimmune or 

connective tissue diseases, such as lupus, scleroderma, or 

rheumatoid arthritis, was raised because of cases reported 

in the literature of small numbers of women with 

implants. A review of several large epidemiological 

studies of women with and without implants indicates 
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that these diseases are no more common in women with 

implants than those in women without implants. 

However, a lot of women with breast implants believe 

that their implants caused a connective tissue disease.

Surgical Risks p. 20-21. No similar risks were identified for saline implants.

Moreover, Dr. Schantz had prepared four quotes for services: a minimastopexy with saline implants; a mini-mastopexy with silicone implants; a BAM 

with saline implants; and a BAM with silicone implants. Each of these quotes 

included three references to the type of implant being used: first, as part of the 

heading describing the quote; second, as a line item describing the implant to be 

used as part and parcel of the procedure to be performed; and third, as a separate 

line item showing the medical device to be implanted (silicone or saline implants) 

with its associated cost. For example, the quote for a “BAM-Saline” included a 

line item quantity of 1 “Breast Augmentation – Saline” with a corresponding price, 

and a separate line item quantity of 1 “Saline implants” with a corresponding price. 

In other words, all of the documentation provided indicated a BAM with saline 

implants was a different procedure than a BAM with silicone implants.

Likewise, the documentary evidence shows that Meade elected a 

BAM with saline. She signed a “Consent for Surgery” that read as follows:

I, Chrissen Meade, desire Stephen A. Schantz, M.D. and 

such assistants as may be assigned by him/her, to 

perform the procedure(s) of:
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• Surgery – Dr. Schantz Cosmetic – BAM with 

Saline Implants4 Mini Mastopexy with Saline 

Implants. Sch with TJT on 12/14/16

The nature and purpose of the operation(s), possible 

alternative methods of treatment, including no 

treatment/surgery, risks and possible complications have 

been fully explained to me by Stephen A. Schantz, M.D. 

and the physician assistant, during my pre-operative 

consultation. I understand that this operation is not an 

emergency nor is it medically necessary to improve or 

protect my physical health. I have been advised that all 

surgery involves general risks, including but not limited 

to bleeding, infection, nerve or tissue damage, and rarely, 

cardiac arrest, death, or other serious bodily injury. I 

acknowledge that no guarantees or assurances have been 

made as to the results that may be obtained.

. . . 

It has been explained to me that during the course of the 

operation unforeseen conditions may be revealed that 

necessitate an extension of the original procedure, and I 

hereby authorize Stephen A. Schantz, M.D. and/or such 

assistants as may be selected by him/her to perform such 

procedures as necessary and desirable, including but not 

limited to the services of pathologists, radiologists, or 

laboratory. The authority granted in this paragraph shall 

extend to remedying conditions that are not known to 

Stephen A. Schantz, M.D. at the time the operation 

commences.

. . . 

In signing this consent, I hereby certify that I understand 

the risks, benefits, and alternatives to my procedure(s) 

4

“BAM with Saline Implants” was handwritten above “Mini Mastopexy,” which had been struck 

through as well. 
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and that I have discussed them with Stephen A. Schantz, 

M.D.

The form was signed and dated on January 18, 2017. 

In addition to the documentary evidence, the depositions submitted by 

the parties show that different procedures are involved in the implantation of 

silicone versus saline products, and that Meade had only consented to have a BAM 

with saline implants to be performed on her person. Initially, in his deposition, Dr. 

Schantz made it clear that the choice of implant is one that is determined by the 

client:

Q. All right. Let me just ask you in general, Doctor, 

what – how do you counsel patients about whether they 

choose saline or silicone devices?

A. When they come for the original consultation, we 

discuss the fact that both saline and silicone implant 

devices are available to the patient. I discuss what I view 

to be the benefits of each and then let [sic] that open to 

the patient as to what she chooses. And it may not be 

done at that time.

Q. So, is it the patient that decides whether it’s silicone 

or saline implants that are used?

A. The patient does make the decision as to which 

implants she would like to have placed.

Q. All right. And do you make sure that that’s in writing 

somewhere and initialed by the patient prior to the 

procedure?

A. Yes, we do.
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Dr. Schantz Deposition at 8 (emphasis added). And Meade unequivocally made 

her election for saline:

Q. But did Ms. Meade make it crystal clear to you and 

your staff that she only wanted to use saline?

A. At our initial consultation we discussed both types of 

implants, and at that time it was not – she had not made 

her mind up, which is not unusual unless patients come in 

knowing exactly what they want. 

When she came back for her planning session, at

that time is when they make the decision because that’s 

usually when they start – they pay either – I think they 

pay their balance. So at that time it was known to us that 

she wanted saline implants.

Dr. Schantz Deposition at 32-33 (emphasis added).

Additionally, there was a pre-operative verification protocol to 

identify the type of implant to be used. In Meade’s case, at least once, and 

possibly twice, it was confirmed prior to surgery that saline implants were the 

election. Dr. Schantz admitted that by January 18, 2017, Meade had 

communicated that she wanted saline, not silicone, implants.

Dr. Schantz also noted that one of his staff had written on a consent 

for surgery form that Meade was to have “BAM, with saline implants.” Dr. 

Schantz Deposition at 51. That form was signed by Meade and a member of Dr. 

Schantz’s staff and dated January 18, 2017, the date of surgery. 
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Additionally, the undisputed evidence showed that a BAM with saline 

implants is a procedure that carries a different risk than a BAM with silicone 

implants. Dr. Schantz stated that he reviews with his patients the “risks of saline 

versus silicone.” Dr. Schantz Deposition at 43. The information regarding the 

risks of silicone ruptures is roughly three times as long as the information 

regarding the risks of saline ruptures. The information noted “hard knots or lumps 

surrounding the implant, or in the armpit, change or loss of size or shape of the

breast or implant, pain, tingling, swelling, numbness, burning, or hardening of the 

breast” could all be associated with silicone ruptures, but the same were not 

denoted as associated with saline ruptures. Dr. Schantz did not feel the need to 

explain this information to Meade; “It’s pretty self-explanatory, and I believe she 

read that on her own.” Dr. Schantz Deposition at 48. 

Dr. Schantz also admitted that once he realized he did not have a 

saline implant that he believed would result in the outcome Meade desired, he had 

three options:

I had choice A, which would be just to abort the 

procedure because we did not have the proper implant, 

come back and put a – order the implant, come back and 

put the proper size to get the patient to her goal. So that 

meant that’s a second surgery.

Choice B was to put a smaller implant than she 

desired in the saline realm knowing that she was not 

going to be happy because we did not achieve her goals, 
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according to her pictures, so more than likely coming 

back and putting in a larger implant at a later date.

Or choice C, which is to put in a silicone implant, 

which I did have the size proper, felt that it’s a superior 

product, which most women choose, and have her have 

the possibility of not having to have another surgery and 

another anesthetic if she was okay with that. We 

certainly made it known to her that I would more than 

gladly remove the implants and replace them with saline

which could be done under local if she so desired.

Dr. Schantz Deposition at 54 (emphasis added).

These options show that Dr. Schantz understood the procedure to 

which Meade consented was a BAM with saline implants. Choice “C” shows that 

Dr. Schantz viewed silicone versus saline implants as a choice or an election for 

the patient. Choice “C” also shows that Dr. Schantz knew what he did not know, 

namely that he did not know whether Meade would give her consent to perform a 

BAM with silicone implants. Dr. Schantz consciously and intentionally chose not 

to perform A or B, both of which aligned with the procedure Meade had elected

and which he had consent to perform. Yet he intentionally chose to perform a 

BAM with silicone implants, a procedure to which Meade had not given consent to 

perform and for which Dr. Schantz knew he might have to perform another surgery 

if Meade truly did not post-surgery elect the BAM with silicone implant procedure. 

In an effort to vitiate the lack of consent, Dr. Schantz now argues that

prior to the operation Meade never specifically objected to silicone implants. This 
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argument is unavailing, as the dissent in Vitale utilized the very same type of 

argument. 24 S.W.3d at 660 (“Although Henchey did not specifically authorize 

Dr. Vitale to perform the surgery, neither did he specifically object to his doing 

so.”) (Cooper, J., dissenting). It is thus sufficient to survive summary judgment on 

the issue of battery that Meade consented to the use of saline and did not 

specifically reject silicone. 

Dr. Schantz also argues that pursuant to Hoofnel v. Segal, 199 S.W.3d 

147, 149 (Ky. 2006), the “unforeseen conditions” clause in the consent form 

permitted him to perform a BAM with silicone implants after discovering during 

the procedure that he would need much larger implants than his pre-operative 

measurements indicated. We do not agree. First, Dr. Schantz’s admission in his 

deposition indicates that he understood he had two choices that were aligned with 

Meade’s consent – to stop the procedure and perform it later with the correct 

implants, or to use the saline implants he had available and risk not achieving the 

desired “DD” size outcome. He also understood that the third choice, which he 

elected to do without obtaining Meade’s consent, was to perform a procedure that 

he hoped Meade would later not object to having had performed on her. In other 

words, even with the unforeseen conditions that arose, Dr. Schantz acknowledged 

that he had options that aligned with the consent; thus, the unforeseen conditions
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did not create a necessity for an extension of the procedure, which is all that the 

consent form permitted. 

Second, Meade put forth an expert opinion to rebut this argument. 

Her expert, Dr. Deane, testified in his deposition that the consent form did not 

authorize Dr. Schantz to use silicone implants:

Q. The first criticism you have is that Dr. Schantz 

breached the standard of care by inserting silicone 

implants without the informed consent of Ms. Meade, 

correct?

A. Correct.

Q. And I guess the second criticism is that he failed to 

wake Ms. Meade up from anesthesia until such a time 

that she could make a decision about whether she wanted 

to go forward with the silicone or wait and get saline?

A. Yes.

Q. Why do you believe that he did not have the informed 

consent of Ms. Meade?

A. Because I saw the informed consent.

Q. She signed the form, and she wanted saline, and she 

told him that she wanted saline, and therefore, that is a 

lack of informed consent?

A. Yes. Unless it is documented elsewhere, and I didn’t 

see that.

Deane Deposition at 89.
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Finally, Hoofnel does not permit so broad a reading of the “unforeseen 

conditions” clause as Dr. Schantz argues. In fact, quite the opposite is true, as 

Hoofnel found the clause to “authoriz[e] additional procedures that may be 

medically necessary[.]” 199 S.W.3d at 149. There, during a scheduled surgery for 

colorectal cancer, it became medically necessary to remove a patient’s ovaries and 

uterus. Id. at 148. Summary judgment had been granted to the health care 

providers on a subsequent battery claim because a written consent form contained 

the aforementioned clause along with express consent to perform an anterior 

resection of the colon, appendectomy, and possible bilateral oophorectomy. Id. at 

148-49. During the surgery, due to the patient having an abnormally large uterus 

that two medical professionals viewed and believed to be cancerous, and that also 

contained multiple fibroid tumors and was blocking the surgeon’s ability to 

perform the colon resection, the surgeon performed a medically necessary 

hysterectomy. Id. at 149. Our Supreme Court held that the “unforeseen 

conditions” clause permitted a procedure that was medically necessary, to wit, 

“[t]he additional surgical procedure to remove the uterus became medically 

necessary once the enlarged uterus was observed as it impaired and impeded [the 

surgeon’s] ability to resect the lesion in the colon.” Id. at 151. 

Here, there was neither a medical emergency nor a medical necessity 

requiring Dr. Schantz to perform a different procedure. We grant to “[e]very 
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human being of adult years and sound mind . . . a right to determine what shall be 

done with his own body; and a surgeon who performs an operation without his 

patient’s consent commits an assault, for which he is liable in damages[.]” Tabor 

v. Scobee, 254 S.W.2d 474, 475 (Ky. 1951) (internal quotation marks and citation 

omitted). “This is t[ru]e, except in cases of emergency where the patient is 

unconscious, and where it is necessary to operate before consent can be obtained.” 

Id. (internal quotation marks and citation omitted). Dr. Schantz admitted here 

there was no medical emergency, and he further admitted it was his choice to 

perform a different procedure. He also admitted that he knew Meade would have 

an objection to the different procedure, but hoped it would not be a strong 

objection:

And then I explained why we had to use – why I 

chose to use the silicone. I further explained that if that 

was something that she had a very strong objection to or 

felt like she did not wish to have silicone that I was more 

than happy to exchange that for her at no cost to her. 

Dr. Schantz Deposition at 63-64. Meade’s expert, Dr. Deane, likewise 

acknowledged that there was no medical emergency. 

Given that the evidence is undisputed that there was no medical 

emergency that required Dr. Schantz to perform the BAM with saline implants, the 

unforeseen conditions clause did not permit the use of silicone implants. We liken 

this case to Vitale, where an action in battery lay because a patient consented to a 
-23-

certain surgery but not to the particular doctor who performed the surgery. 24 

S.W.3d at 654 (“Henchey further testified that, based on Dr. Sparrow’s comments 

to him about Dr. Vitale, he would not have consented to Dr. Vitale performing the 

surgeries on his mother.”). Indeed, “the decision to consent to a particular medical 

procedure is not a medical decision. Instead, it ordinarily is a personal and often 

difficult decision to be made by the patient[.]” Pauscher v. Iowa Methodist 

Medical Center, 408 N.W.2d 355, 360 (Iowa 1987). Here, viewing the evidence in 

a light most favorable to Meade, one can conclude that Meade made a personal 

decision and consented to saline implants, not silicone, and Dr. Schantz’s decision 

to implant silicone was performed without Meade’s consent. Cf. Hershley v. 

Brown, 655 S.W.2d 671, 676 (Mo. Ct. App. 1983) (holding a complaint alleged a 

battery where patient requested elective sterilization procedure involving burning, 

cauterizing, and removing portions of the fallopian tubes, but surgeon instead 

performed sterilization procedure by using a Wolfe ring instrument and implanting 

a foreign object in patient’s body). 

Though Dr. Schantz may now argue that Meade never specifically 

objected to silicone, we note that the dissent in Vitale pointed to the very same type 

of argument, which the majority had rejected. 24 S.W.3d at 660 (“Although 

Henchey did not specifically authorize Dr. Vitale to perform the surgery, neither 

did he specifically object to his doing so.”) (Cooper, J., dissenting). Thus, it is 
-24-

sufficient to survive summary judgment on the issue of battery that Meade

consented to the use of saline and did not specifically reject silicone. 

In summary, our holding here is very narrow. This medical battery 

claim arose from an elective procedure and circumstances that did not create a 

medical necessity for a different procedure. In fact, the surgeon admitted he had 

two options that aligned with the procedure to which the patient had consented.

5

 

The surgeon intentionally and knowingly inserted into the patient’s body a foreign 

object that the patient had neither expressly nor impliedly chosen to have inserted 

into her body. Under these facts, summary judgment should not have been granted 

to Dr. Schantz or Waldman Schantz on the battery claim. Accordingly, we reverse 

and remand the grant of summary judgment in favor of Dr. Schantz and Waldman 

Schantz on the medical battery claim. On remand, we note that on a medical 

battery claim a “plaintiff need not prove actual damages . . . because a showing of 

actual damages is not an element of battery and, when no actual damages are 

shown for a battery, nominal damages may be awarded.” Vitale, 24 S.W.3d at 659 

(footnotes and citations omitted). 

5 Dr. Schantz notes that Meade indicated she would have brought a lawsuit against Dr. Schantz 

had he chosen any of the three options. Thus Dr. Schantz opined that proceeding with choice C 

should be viewed as a reasonable way of potentially avoiding a second surgery. This argument 

is a non sequitur; had Dr. Schantz elected choice A or B, Meade’s lawsuit would have no 

actionable cause under a medical battery claim. 
-25-

II. Medical negligence

Meade next argues that the Trial Court erred by granting summary 

judgment in favor of Dr. Schantz on the medical negligence claim. We disagree.

“Generally, ‘the plaintiff in a medical negligence case is required to 

present expert testimony that establishes (1) the standard of skill expected of a 

reasonably competent medical practitioner and (2) that the alleged negligence 

proximately caused the injury.’” Morris v. Boerste, 641 S.W.3d 688, 698 (Ky. 

App. 2022) (quoting Andrew v. Begley, 203 S.W.3d 165, 170 (Ky. App. 2006)

(citing Johnson v. Vaughn, 370 S.W.2d 591, 596-97 (Ky. 1963); Reams v. Stutler, 

642 S.W.2d 586, 588 (Ky. 1982))). While “under certain factual circumstances, 

the claim of battery may arise in addition to a claim for medical malpractice[,]” 

Andrew v. Begley, 203 S.W.3d 165, 171 (Ky. App. 2006) (citation omitted), Meade

does not present such a case. 

Meade’s claim is that Dr. Schantz was negligent in failing to have the 

largest sized saline implants on hand for the surgery, and thus committed medical 

negligence by performing a different procedure and inserting silicone implants into 

her body. But Meade’s argument is not that the standard of skill for a BAM with 

silicone implants was breached, but that the very act of performing a BAM with 

silicone implants is in and of itself a breach of the standard of skill expected of a 

reasonably competent, medical practitioner. The argument creates a feedback loop 
-26-

of litigation. By performing a non-consented-to procedure, does a doctor ipso 

facto breach the standard of skill expected of a reasonably competent, medical 

practitioner? If that were the case, every medical battery claim – an intentional tort 

– would also constitute medical negligence. 

Meade might have actionable claims under both medical negligence 

and battery if she alleged that Dr. Schantz performed some negligent act that 

breached the standard of care during the BAM with silicone implant procedure. 

For example, had Dr. Schantz used the wrong size or type of stitches, or placed the 

implants incorrectly, or ruptured the implants during the surgery, or performed any 

number of other, potential, negligent acts, then perhaps Meade might have an 

actionable, medical negligence claim. 

However, the evidence here unequivocally shows that Dr. Schantz 

intentionally did not perform the procedure to which Meade consented, but it does 

not show that Dr. Schantz otherwise breached the standard of care while 

performing the BAM with silicone implants procedure. The proper cause of action 

in this fact pattern is battery, and the Trial Court did not err by granting summary 

judgment on the medical negligence claim.

Additionally, Meade argues that the Trial Court erred by requiring her 

to support her medical negligence claim with expert testimony, specifically that 

she must establish that the use of silicone implants was a significant risk for which 
-27-

she was not warned. We agree with Meade inasmuch as such testimony was not 

necessary to establish a lack of consent on the battery claim. See Vitale, 24 S.W.3d 

at 656 (“However, the physicians, as did the trial court, confused the issue of 

informed consent, i.e., the failure to disclose a risk or hazard of the surgeries, with 

the issue of no consent, or whether any valid consent was obtained prior to . . . 

performance of the surgeries.”). However, to proceed on a medical negligence 

claim, Meade would likely have had to demonstrate through expert testimony that 

Dr. Schantz breached the standard of care while performing the BAM with silicone 

implant procedure. Because Meade does not even make a claim that the BAM 

with silicone implant procedure was negligently performed, nor does she establish 

breach, causation, and damages, the Trial Court appropriately granted summary 

judgment in favor of Dr. Schantz and Waldman Schantz on this issue. 

III. Breach of contract

Finally, Meade argues that the Trial Court erred by granting summary 

judgment in favor of Dr. Schantz on the breach of contract claim. Meade claims 

that KRS6 304.40-300 does not apply in this case. That statute reads:

No malpractice liability shall be imposed upon any health 

care provider on the basis of an alleged breach of any 

guaranty, warranty, contract or assurance of results to be 

obtained from any procedure undertaken in the course of 

providing health care, unless such guaranty, warranty, 

6 Kentucky Revised Statutes. 
-28-

contract or assurance is in writing and signed by the 

provider.

It is undisputed that there exists no written contract between Dr. 

Schantz and Meade that is in writing and signed by Dr. Schantz. The statute is 

clear and unequivocal. When we engage in statutory interpretation, we must give 

effect to the intent of the General Assembly, and “[w]here the words used in a 

statute are clear and unambiguous and express the legislative intent, there is no 

room for construction and the statute must be accepted as written.” Bell v. Bell, 

423 S.W.3d 219, 223 (Ky. 2014) (citation omitted). Here, the statute expressly 

states that Meade’s cause of action is unsustainable without a “contract . . . in 

writing and signed by the provider.” KRS 304.40-300. Additionally, longstanding 

jurisprudence in this state and sister states demonstrates a reluctance to turn 

medical consent documents into legally enforceable contractual obligations. See 

Kovacs v. Freeman, 957 S.W.2d 251, 256-57 (Ky. 1997). There being no 

enforceable contract, we affirm the Trial Court’s order granting summary judgment 

on this claim.

CONCLUSION

Sufficient evidence was presented to survive a motion for summary 

judgment on the battery claim, as the evidence viewed in a light most favorable to 

Meade shows that she did not consent to the insertion of silicone implants into her 

body. However, the same cannot be said of her negligence and breach of contracts 
-29-

claims. Accordingly, we REVERSE AND REMAND the Trial Court’s Order 

inasmuch as it granted summary judgment in favor of Dr. Schantz on the battery 

claim, but otherwise AFFIRM the Order on all other grounds.

ALL CONCUR. 

BRIEFS FOR APPELLANT:

J. Dale Golden

Laraclay Parker

Alexandra DeMoss-Campbell

Lexington, Kentucky

BRIEF FOR APPELLEES:

Mark E. Nichols

Sarah C. Clark

Lexington, Kentucky