# FILED
December 19, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk ALICE SANDER S and JAMES ) SANDERS, ) ) Plaintiffs/App ellants, ) ) Appeal No. VS. ) 01-A-01-9707- CV-00357 ) DR. ALVERNI CA WHITFIELD and ) Davidson Circuit UNITEDNEIGH BORHO OD HE ALTH ) No. 96C-1458 SERVICES, IN C., a Tennessee ) Corporation, ) ) Defendants/Ap pellees, ) ) CAYCE FAMILY HEALTH CENTER, ) INC., ) ) Defendant. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE
APPEALE D FRO M THE C IRCU IT COU RT OF D AVIDSO N COU NTY AT NASHVILLE, TENN ESSEE THE HONORABLE BARBARA N. HAYNES, J UDGE

G. KLINE PRESTON , IV W ashi ngto n Squ are T wo 222 Second Avenue North Suite 416 Nashvil le, Tennessee 37201 Attorney for Plaintiffs/Appella nts TRACY SHAW HOWELL & FISHER Court Squar

e Building 300 James Roberts on Parkway Nashvil le, Tennessee 37201- 1107 Attorney for Defendants/Appellees

AFFIRMED AND REMAN DED

BEN H. CAN TRELL, JUDGE CONCUR: TODD, P.J., M .S. KOCH, J. 

## O P I N I O N- 2 - The plaint iff brou ght an action against the defe ndant dentist which alleged that the defendant had failed to obtain her inf ormed consent bef ore attempting
a root canal. The question on app e al is w hether the plai ntiff may proceed w ithout expert testimony t hat the defendantdeviated from the standard of care. T he Circuit Court of Dav idson County gran ted sum mary

judg ment to the defen dant. We affirm

.

I.

In March of 1995 theplaintiff, Alic e Sanders, consu lted the defendant,
a dentist at Un ited Neigh borhood Health S ervices , Inc., abou t the severepain the plai ntiff was ex periencing in one of her teeth. The defend ant conducted an examinati o n and diagnosed the plaintif f’s problem as a periapical absce ss, which would require root canal ther apy. On Apr il 18, 1995 the pl aintiff retu rned fo r the suggested treatment, but dur ing the cour se of the procedure, the de fendant discovered that she could not p erform rootcanal surg ery becausethe canal was calci fied. The plaintiff alleg es that she subs equently lost the tooth and endu re d excruci ating pain.

The plaintiff sued the defendant and the defendant’ s emplo yers all eging variouscau ses of ac tion. The complai nt, however, was s ubsequently amended to restrict t he claim s to the f ollowing:

8. That prior to at

tempting to perform the root canal, Defendant Dr. Alvernica W hitfield failed to ob tain the informed con sent of Plaintiff Alice Sanders. 9. Pl aint iffavers that Defendant Whitfield di d not advise Pl aintiff Sanders as t o the pote ntial risks of performing a root canal a nd, therefore, did notadequately inform Mrs. Sanders in obtaining her consent in accord ance with the recognized standard of acceptab le professional practice in the profession and in the specialty that the D efe nda nt pr acti ces in the c omm unit y.

* * *- 3 - 13. Plai ntiff avers th at Defendant’s failur e to obtain her

effective informed consent resulted in a battery to her.

The defendant moved for summary judg ment and filed her own affidavit in which s he said that she complied wi th the standard of care in Davidson County and that she expl ained to the plai ntiff in detail the procedure, the risks, and the potential complications

of the root canal treatment.

The plain tif f op pose d the moti on f or su mma ry judg men t with h er own affidavit in whic h sh e said the defend ant did not explain to her any risks or complications

of the procedure.

The trial cour

t granted the motion for summary judgment.

II.

The plaintiff assert s that expert medical proof is not required to establish
a cause of action ag ainst the defendant ( 1) because the mal practice li es withi n the
common knowledge of laymen, Runnels v. Rogers , 596 S.W.2d 87 (Tenn. 1980), or (2) because the causeof action is for a batte ry and not for malpractice, Cardwell v. Bechtol , 724 S.W .2d 739 (Tenn. 198 7).

We think the first co ntentio n fails because we do not think that the
common knowledg e of l aymen include s knowledg e of what speci fic information or warnings should be gi ven to a pers on about to underg o root canal th erapy. In additio n, the m edical m alpract ice act in cludes t he fol lowing:

In a malpractic e action, the p lain tif f sh all pr ove by evidence as requir

ed by § 29-26- 115(b) that the defendant did not supply appropriate i nf orm ation to the patientin obtaining his informed cons ent (to the- 4 - procedure out of which plaintiff’s claim allegedly arose) in accordance with th e rec ognized standard of accepta ble professional practice i n the prof essi on and in the spec ialt y, if any, that t he defendan t practices in the community

in whic h he p r actices and i n similar communities. Tenn. Code Ann. § 29- 26-118.

In German v. Nichopoulos , 577 S. W.2d 197 (Te nn. Ap p. 1978), the court held that this section required expert proof of the usual and custo mary adv ice given to patients to pr

ocure consent i n similar s ituations. The pl aintiff arguesthat this case is different from German v. Nichopoulos because she ass erted in her affidavit that th e defendant did notgive her any advice before beginning the procedure. But we think the case is ex

actly li ke German v. Nichopoulos where the court said:

Counsel insiststhat simply because plaintiff testified that no one told her of any

possible r isks prio r

to receiv ing the injection, a prima facie case based on l ack of informed consentw a s m a d e o u t
. We disagree a nd hold, as did the Middle Section of this C o urt in an unre ported case, that , in matters of informed con sent the plaintiff has the burden of proving by exper

t medical ev idence, (a) what a reasonable medical pract itione rof the same or simi lar communitiesunder the same or similar c ircumstances would have disc losed to the pati ent aboutattendantrisks incidentto a proposed di agnosis or treatmentand (b) that the defen dant dep arted from thenorm. 577 S.W.2d at 204. Therefore, if the cl aim is based on medical malpractice it fails for a lack of proof on the standard of care.

If the c laim is fo r bat tery, it seems that we come out at the same place. Treating a patientwithout g iving the patient adeq uate information to make an informed decision to submit to tr eatment amounts to a batt ery. Cardwell v. Bec htol , 724 S.W.2d 739 (Tenn. 1987). But, Tenn. Code Ann. § 29-26-118 “ex plicitly requires as part of the plaintiff’s bur den or proof that the standard ofcare for obtaini ng informed consentmust be show n by expert evidence . . . .” Id. at 750. “Whether the defendant failed to obtain informed cons ent is dependent upon the stan dard of care of the- 5 -

profession or specialty . . . .” Id. Therefore, we t hink the plain tiff’s cause of action for batt ery als o fai ls fo r a l ack of ex pert pro of.

The judgment of the tri al court is affirmed and the cause is remanded to the Circuit Court of Dav idson County for any further

proceedings

necessary . Tax the costs on appeal to the appellants.

___ ______________________ ___ _ BEN H. CAN TRELL, JUDGE
CONCUR:

_______________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SEC TION

_______________________________ WILLIAM C. KOCH, JR., J UDGEIN THE COURT OF APPEALS OF TEN NESSEE MIDDLE SEC TION AT NASHVILLE

ALICE SANDER S and JAMES ) SANDERS, ) ) Plaintiffs/App ellants, ) ) Appeal No. VS. ) 01-A-01-9707- CV-00357 ) DR. ALVERNI CA WHITFIELD and ) Davidson Circuit UNITEDNEIGH BORHO OD HE ALTH ) No. 96C-1458 SERVICES, IN C., a Tennessee ) Corporation, ) ) Defendants/Ap pellees, ) ) 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 a p peal from the Circuit Court of Davidson County, br iefs and argument of counsel; upon cons ideration whe reof , this Court

is of the opinion that in the judgment of the tr ial court t here is no reversible error.

In accordance w ith the opinion of theCourt filed her ein, it is, therefore, ordered and adjudged by this Court

that the judg ment of the trial court is affirmed. The cause is remanded to the Circuit Court of Davidson C ounty for the execution of the j udgm ent a nd f or th e col lect ion o f th e cos ts ac crue d bel ow.

Costs of this app eal a re taxed against Alice and James Sande rs, Prin cipa ls, an d Klin e Pre ston , Sur ety, f or whic h exec utio n ma y issue if ne cess ary.

ENTER _______________________.

_________________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SEC TION

_________________________________ BEN H. CAN TRELL, JUDGE

_________________________________ WILLIAM C. KOCH, JR., J UDGE