FILED

December 19, 1997

Cecil W. Crowson

Appellate Court Clerk

ALICE SANDERS and JAMES )

SANDERS, )

)

Plaintiffs/Appellants, )

) Appeal No.

VS. ) 01-A-01-9707-CV-00357

)

DR. ALVERNICA WHITFIELD and ) Davidson Circuit

UNITED NEIGHBORHOOD HEALTH ) No. 96C-1458

SERVICES, INC., a Tennessee )

Corporation, )

)

Defendants/Appellees, )

)

CAYCE FAMILY HEALTH CENTER, )

INC., )

)

Defendant. )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE BARBARA N. HAYNES, JUDGE

G. KLINE PRESTON, IV

Washington Square Two

222 Second Avenue North

Suite 416

Nashville, Tennessee 37201

Attorney for Plaintiffs/Appellants

TRACY SHAW

HOWELL & FISHER

Court Square Building

300 James Robertson Parkway

Nashville, Tennessee 37201-1107

Attorney for Defendants/Appellees

AFFIRMED AND REMANDED

BEN H. CANTRELL, JUDGE

CONCUR:

TODD, P.J., M.S.

KOCH, J.

O P I N I O N
- 2 -

The plaintiff brought an action against the defendant dentist which

alleged that the defendant had failed to obtain her informed consent before attempting

a root canal. The question on appeal is whether the plaintiff may proceed without

expert testimony that the defendant deviated from the standard of care. The Circuit

Court of Davidson County granted summary judgment to the defendant. We affirm.

I.

In March of 1995 the plaintiff, Alice Sanders, consulted the defendant,

a dentist at United Neighborhood Health Services, Inc., about the severe pain the

plaintiff was experiencing in one of her teeth. The defendant conducted an

examination and diagnosed the plaintiff’s problem as a periapical abscess, which

would require root canal therapy. On April 18, 1995 the plaintiff returned for the

suggested treatment, but during the course of the procedure, the defendant

discovered that she could not perform root canal surgery because the canal was

calcified. The plaintiff alleges that she subsequently lost the tooth and endured

excruciating pain.

The plaintiff sued the defendant and the defendant’s employers alleging

various causes of action. The complaint, however, was subsequently amended to

restrict the claims to the following:

8. That prior to attempting to perform the root

canal, Defendant Dr. Alvernica Whitfield failed to obtain

the informed consent of Plaintiff Alice Sanders.

9. Plaintiff avers that Defendant Whitfield did

not advise Plaintiff Sanders as to the potential risks of

performing a root canal and, therefore, did not adequately

inform Mrs. Sanders in obtaining her consent in

accordance with the recognized standard of acceptable

professional practice in the profession and in the specialty

that the Defendant practices in the community.

* * *
- 3 -

13. Plaintiff avers that Defendant’s failure to

obtain her effective informed consent resulted in a battery

to her.

The defendant moved for summary judgment and filed her own affidavit

in which she said that she complied with the standard of care in Davidson County and

that she explained to the plaintiff in detail the procedure, the risks, and the potential

complications of the root canal treatment.

The plaintiff opposed the motion for summary judgment with her own

affidavit in which she said the defendant did not explain to her any risks or

complications of the procedure.

The trial court granted the motion for summary judgment.

II.

The plaintiff asserts that expert medical proof is not required to establish

a cause of action against the defendant (1) because the malpractice lies within the

common knowledge of laymen, Runnels v. Rogers, 596 S.W.2d 87 (Tenn. 1980), or

(2) because the cause of action is for a battery and not for malpractice, Cardwell v.

Bechtol, 724 S.W.2d 739 (Tenn. 1987).

We think the first contention fails because we do not think that the

common knowledge of laymen includes knowledge of what specific information or

warnings should be given to a person about to undergo root canal therapy. In

addition, the medical malpractice act includes the following:

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 (to the
- 4 -

procedure out of which plaintiff’s claim allegedly arose) 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.

In German v. Nichopoulos, 577 S.W.2d 197 (Tenn.App. 1978), the court

held that this section required expert proof of the usual and customary advice given

to patients to procure consent in similar situations. The plaintiff argues that this case

is different from German v. Nichopoulos because she asserted in her affidavit that the

defendant did not give her any advice before beginning the procedure. But we think

the case is exactly like German v. Nichopoulos where the court said:

Counsel insists that simply because plaintiff testified that

no one told her of any possible risks prior to receiving the

injection, a prima facie case based on lack of informed

consent was made out. We disagree and hold, as did the

Middle Section of this Court in an unreported case, that,

in matters of informed consent the plaintiff has the burden

of proving by expert medical evidence, (a) what a

reasonable medical practitioner of the same or similar

communities under the same or similar circumstances

would have disclosed to the patient about attendant risks

incident to a proposed diagnosis or treatment and (b) that

the defendant departed from the norm.

577 S.W.2d at 204. Therefore, if the claim is based on medical malpractice it fails for

a lack of proof on the standard of care.

If the claim is for battery, it seems that we come out at the same place.

Treating a patient without giving the patient adequate information to make an informed

decision to submit to treatment amounts to a battery. Cardwell v. Bechtol, 724

S.W.2d 739 (Tenn. 1987). But, Tenn. Code Ann. § 29-26-118 “explicitly requires as

part of the plaintiff’s burden or proof that the standard of care for obtaining informed

consent must be shown by expert evidence . . . .” Id. at 750. “Whether the defendant

failed to obtain informed consent is dependent upon the standard of care of the
- 5 -

profession or specialty . . . .” Id. Therefore, we think the plaintiff’s cause of action for

battery also fails for a lack of expert proof.

The judgment of the trial court is affirmed and the cause is remanded

to the Circuit Court of Davidson County for any further proceedings necessary. Tax

the costs on appeal to the appellants.

_____________________________

BEN H. CANTRELL, JUDGE

CONCUR:

_______________________________

HENRY F. TODD, PRESIDING JUDGE

MIDDLE SECTION

_______________________________

WILLIAM C. KOCH, JR., JUDGE
IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

ALICE SANDERS and JAMES )

SANDERS, )

)

Plaintiffs/Appellants, )

) Appeal No.

VS. ) 01-A-01-9707-CV-00357

)

DR. ALVERNICA WHITFIELD and ) Davidson Circuit

UNITED NEIGHBORHOOD HEALTH ) No. 96C-1458

SERVICES, INC., a Tennessee )

Corporation, )

)

Defendants/Appellees, )

)

CAYCE FAMILY HEALTH CENTER, ) Affirmed and

INC., ) Remanded

)

Defendant. )

J U D G M E N T

This cause came on to be heard upon the record on appeal from the

Circuit Court of Davidson County, briefs and argument of counsel; upon consideration

whereof, this Court is of the opinion that in the judgment of the trial court there is no

reversible error.

In accordance with the opinion of the Court filed herein, it is, therefore,

ordered and adjudged by this Court that the judgment of the trial court is affirmed.

The cause is remanded to the Circuit Court of Davidson County for the execution of

the judgment and for the collection of the costs accrued below.

Costs of this appeal are taxed against Alice and James Sanders,

Principals, and Kline Preston, Surety, for which execution may issue if necessary.

ENTER _______________________.

_________________________________

HENRY F. TODD, PRESIDING JUDGE

MIDDLE SECTION

_________________________________

BEN H. CANTRELL, JUDGE

_________________________________

WILLIAM C. KOCH, JR., JUDGE