### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE March 17, 2003 Session
SANDRA ANN HENSLEY, ET VIR 

### , CHARLES HENSLEY V 

### . DANIEL SCOKIN, M.D. AND 

### MEMORIAL ANESTHESIOLOGY ASSOCIATES Appeal from the Circuit Court for Davidson County No. 00C-2535 Marietta M. Shipley, Judge

No. M2002-00922-COA-R3-CV - Filed Septem ber 12, 2003

This is a medical battery

case. The patient was scheduled to underg o a hysterectomy. Bec ause of p riormedi cal problems, she told the anesthesiologist that she needed him to use nasal intubation instead of oral intubation to anesthetize her for the surgery . The anes thesiolog ist t old her that he would use the type of intubation that he thoug ht was be st for he

r. Ultimat ely , when the

hys terecto my was performed, the patient wa s int ubated through an oral pathway . The patient sued the anesthe siologis tfor medic al b atte ry . The ane sthesiolog ist filed a motion for

summary judgmen t. The tria l court fo und that the patien

t knew tha

t the ane sthesiolog

ist might use oral intubation, and that she authorized the procedure both by signing a consent form prior to th e s ur ge ry a nd by not stopping the proc edure w

hen she b ecame a

ware tha t the ane sthesiolog

ist might use

oral intubation. Co ns eq ue nt ly, summary judgme nt was granted in favor of the ane sthesiologist. We reverse, finding that a question of material fact exists as to whether the patient authorized the use of ora l intubation. Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Cir

cuit Cour

t Rever sed in Par

t and Affirmed in Part

H OLLY M. K IRBY , J., deliver ed the opinion of the

court, in whic h W. F RANK C RAWFORD , P.J., W.S., and D AVID R. F ARMER , J., joined.

Ro be rt J. Sh oc ke y, N as hv il le , T en ne ss ee , f or ap pe ll an ts , S an dr a H en sl ey, et vi r, Ch ar le s H en sl ey.
C. Bennett Harrison, Jr., and Bry an K. Williams, Nashville, Tennessee, for appellees, Daniel Scokin, M.D. and M emorial A

nesthesi ology

Associat es.1 It appears from statements i n the tri al judge’s order that the consent for m was n ever part of the tri al r ecord.
-2- OPINION Plaintiff-Appellant

Sandra Hensley

(“Hensley ”) was scheduled to have a hy sterectomy on January 11, 2000. Because of a preexisting problem with her te mpor omandibul a r joint (“TMJ”), Hensley’spain-management phy sician, Dr. Kenneth E. Bart holo mew, and her oral surgeon, Dr. Greg oryAnde rson (“Dr. Anderson”), advised Hensley to avoid oral intubation during the surgery and instead opt

for nasal intubation. On the day of her surg ery , Hensle

y to ld her anesthesio logist, Defendant-Appellee

Dr. Daniel Sc okin (“D r. Scokin” ) that be cause of the TMJproblem, he should use nasal intubation insteadof oral intubation to anesthetize her for the hyster

ectomy. During

the
su rg er y, Dr. Scokin performed an oral intubation on Hensley in order to anesthetize her. After the surgery , Hensley deve

loped increased TJM pain.
On September 5, 2000, Hensley and he r husband filed

a lawsuit against Dr. Scokin, alleging “negligence, gross negligence, lack of inf ormed consent, medical battery , and outrageous conduct.” Hensley also name d as a def

endant Dr. Scokin’ s medica l g rou p, Mem orial Anest hesio logy Associates (“MAA”), asserting that it was liable under the doctrine of respondeat superior. Hensley and her husband sought $6,000,000 in damages. Discovery

ensued. In the

course of d iscovery, He nsley’s deposition was taken. Hensley testified that, at her request, Dr. Anderson had provided he r with x-rays taken prior

to he r s ur ge ry. She asserted that the x-ray s showed her pre-existing TMJ problems and demonstrated the need for nasal intubation

rather than ora l intubatio n. Hensle

y sa id that she

als o toldher gy

necologist, Dr. James O. Miller (“Dr. Miller”), that the anesthesiologist would need to use nasal intubation. Hensley understood that Dr. Miller passed this information on to Dr. Scokin’s medical group. On the day of her su rg er y, H en sl ey s ig ne d a co ns en t a gr ee me nt fo r t he su rg er y. 1 That same day , Hensley told at least two hospital employees that sh e w ou ld re qu ir e n as al in tu ba ti on . J us t b efor e h er su rg er y, while Hensley was lying on a g

urney in her

hospital gown, Dr. Scokin spoke with her. Hensley testified that she gave t

he x-ray s t o Dr. Scokin and explained that she would need nasal intubation. Dr. Scokin’s response, she said, was to cast the x- ra ys aside and tell her that he would decide what ty pe of intubation

Hensley would re ceive. Hensley

said that, just

prior to being me di ca te d f or th e s ur ge ry, she reminded Dr. Scokin of her need for nasa l intubation.
Contrar y to Hensley’s request, during the surgery , Dr. Scokin intubated Hensley orally, rathe r than nasally . Hensle

y’ s lawsuit a sse rted th at, as a result of the oral intubation, Dr. Scokin caused “severeinjury to Mrs. Hen sle y’s lower tee th” and increased facial pain, as we ll as swelling and additional “damage to the soft tissue, ligaments, and bone structure of the TMJ.”
On December 19, 2001, Dr. Scokin and MAA filed a motion for summary ju dgm ent . In the motion, Dr. Scokin asserted that he was entitled to summar y judgment

because Hensley

had proffered no expert testimony showing either tha the deviated from the standard of medical ca re or that the devia tion resulted in Hensley’ s alleged injuries. As a result, Dr. Scokin contended, ther e-3-

existed no genuineissue of material fact and he was entitled to judgment as a matter of law. MAA argued that it was entitled to summary judgment on the same basis.

In oppos itio n to Dr. Scokin’s motion for summary judgment, Hensley ar gued that her complaint asserted a cause of

action for

battery, and tha

t expert testimony was not required for such
a claim. Hens le y contended tha t the Tennessee Supreme Court has held that “there ar e circumst ances, in the abs ence of

expert pr oof on the issue of in

formed c onsent, w

here the seriousness of the treatment and the expression of co ncern by the patient are such that the issue is not one of professional negligence but ra ther one of traditional battery .”

In reply, Dr. Scokin argued that Hensley was erroneously

“attempting to interchange the two similarbut separate and distinct causes of action of informed consent a nd batter y.” In su pport of t his assertion, Dr. Scokin discussed Blanchard v . Kellum , 975 S.W.2d 522 (Tenn. 1998). In Blanchard , the court observed that in cases where “a doctor performs an unauthorized procedu re,” a medical batter y has oc curred, but when “the procedure is authorized but the patient claims that the doctor failedto inform the patient of any or all the r

isks inherent in the procedure,” there is a ca use of action for lack of informed consent. Id. at 524. The Blanchard court continued:

A simple inqu

iry can be u sed to det

ermine w hether a case co nstit

utes a medical ba tt er y: (1) was t

he patie nt aware that the doctor wa s going to perform the procedure

. . . a nd, if s o ( 2) did

the pa tie nt a uthor ize perf or ma nc e o f th e p ro ce dur

e? A plaintiff’s cause of action may be cla ssified as a medical battery only when answe

rs to either of the above questions are in the neg ative. If, however , answer s to the above questions are af

firmativ e and if the plain tiff is all eging

that the doctor fa

iled to informof any

or all risks or aspects associa ted with a procedu re, the p atient’scause of action rests on an informed consent theory

. Id. Dr. Scokin contended th at bo th of th e q ue st io ns no te d a bo ve we re an sw er ed af fi rm at iv el y, because it was undisputed that Hensley knew that intubation was required and that she sig ned the consent form for the surgery

after having been

made aware of the risks and benefits of anesthesia and intubation. Theref

ore, Dr . Scokin

ar gued, Hensley ’s cause of action was one of lack of inf ormed consent. Becau se Hensley had f ailed to proffer expert testimony , and expert proof is necessa

ry to support a lack of informed con sent clai m, Dr. Scokin maintained he was entitled to summary judgment.
On Feb ru ar y 1, 2002, the trial court held a hearing on Dr. Scokin’s motion for summary judgmen t. While ther

e is no transcript

of the hearing, the trial court later e ntered a Memorandum Opinion on the re sults of the hearing . The Memo

randum Opini on st ates t hat, d uring t he hear ing, Hensley elec ted to proce ed only on the claim of medic al battery, whic h did not require expert te st im on y. The trial judge cited Blanchard and the two questions set fo rt h in Blanchard to determine whether Hensley ’s cause of action was for medical ba tt er y o r informed consent. The Memorandum

Opinion then states: “If either question is answe red in the affirmative the claim is not
one for medical bat

tery , but i s rather a claim for lack of informed c onsent, requiring expert2 Informed cons ent cas es are contro lled b y statute in T enne ssee. S ection 29-2 6-118 of the Tenness ee Code Anno tated states:

In a malpract

ice act ion, t he plai nti ff shall

prove by evi dence as required by § 29-26-115(b) that the defendant did not supply appropriate informati on to the patient i n obtaining inf ormed consent (to the procedure out of which plaint iff ’s clai m allegedly arose) i n accordance with the recognized standard of acceptable professional practi ce in t he pr ofessio n and in the specialt y, if any, that

the defendant prac tices in the c omm unity in whic h the d efend ant pra ctices a nd in sim ilar com munitie s. (con tinued ...)
-4- testimony.” The tria

l court the

n noted tha

t, becau se Dr. Sc okin told He nsley he would c

hoose whether to use oral or

nasal intu

bation and she did not further protest, the first Blanchard question
was answer

ed in the a

ffirmat ive, that is, that He

nsley knew tha t Dr. Scok

in was going to use oral intubation. The trial court found further that the answer to the second Blanchard question w as also “yes,”that is, that Hensley authorized the procedure, given the fact thatHensley signed the consent form after her discussion with Dr. Scokin, and because “she failed to stop the procedureby refusing to undergo the procedure

without the guarantee that a nasal intubation

would be p erformed.” Thus, the trial court found that the action was not one for medical battery, and g ranted summary judg

ment on the issue of medical battery

. The trial judg e allowe d Hensle y a dditional t

ime to disclose an expert

to testify reg arding her claim for lack of informed consent. No such expert was proff ered, and consequently the tria

l court later entere d an orde

r of dismis sal, with

prejudic e, of all

of Hensle y’ s claims against Dr. Scokin and MAA. From this order, Hensley appeals.
On appeal, Hensley

asserts t hat the tr ial co urt erred in granting summary judgment on the issue of medical battery . A mot ion forsummary judgme nt should be granted when the movant de mon strates “that the

re is no g enuine is sue as to a ny material

fact and that the

moving pa

rty is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The burden of demonstrating that
no genuine issue of material fact exists is placed on the party moving for summary judgment. Bain
v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997). On a motion for summary judg ment, the court

must view the evidence in favor of the nonmoving party in addition

to allowing all reasonable inference s in favor of

that party, while disca

rding all countervailing evidence

. Id. Summary judgmen t is only appropr iatewhen the facts and the legal conc lusions drawn from the fact s reaso nably permit onl

y one conclusion. Carvell

v. B otto ms , 900 S.W.2d 23, 26 (Tenn. 1995). Because only qu estions o f law are involved, our review of the trial court’sgrant o f summary judgmen t is de novo on the record before this Court. Warren v. E state of Ki

rk , 954 S.W.2d 722, 723 (Ten n. 1997); Bain , 936 S.W.2d at 622.
As noted by

the trial court, the Tenne ssee Supr eme Court

articula ted in Blanchard

the test to determine whether a cause of a ction is for

medical battery

or for lack of informed consent. I f the patient knew the procedure would be perfor med and authorized the procedure, but was not made
awareof the inherent risks of the procedure, then the claim is for lack of informed consent. Expert testimonyis normally required f or a claim of lack of info rmed consent. 2 Blanchard , 975 S.W.2d2 (.. .cont inu ed) Tenn. Cod e Ann. § 29-26-118 (2000).

3 The trial court stat ed that “[i ]f eit her [ Blanc hard ] que stion is answ ered i n th e af fi rmat ive the clai m is not one for medical battery, ” which is not correct . The corre ct t est is tha t i f ei ther

of the ques tions is an swered i n the negative , then the cause of act

ion is for me dical b attery. Blanc hard , 975 S. W.2d at 524.
-5- at 524 . In contrast, if the patient did not know that the procedure was going to be per formed, or if the patie nt did not a uthor izethe perf

ormance of the pr ocedure , then the

claim is fo r m ed ic al ba tt er y. Blanchard

v. Kellum , 975 S.W.2d 5 22, 524 (Tenn. 1998 ); see also Bates v . Metcalf , No. E2001- 00358-COA- R3-CV, 2001 Tenn . App. L EXIS 879, at *1 1-12 (Te

nn. Ct. App . Dec. 3, 2001); Church
v. Perales , 39 S.W.3d 149, 159 (Tenn. Ct. App. 20 00); Harris v. Buckspan , 984 S.W.2d 944, 948 (Tenn. Ct . A pp . 1 99 8) . F or me di ca l b at te ry, the plaintiff is not required to provide expert medical te st im on y, because thepatient’ s knowled ge and aware ness is the focus in such a claim. Church , 39 S.W.3d at 15 9; Blanchard , 975 S.W.2d at 524.

In the case at bar, the test in Blanchard was apparently misstated, but re gardless, it did not affect the result below because th e trial c ourt a

nswered bo th prongs of the Blanchard test in the affirmative. 3 The tria

l court fo und that the answe

r to the fi rst Blan chard question, whether the patient knew tha t the phy sician wa s going

to perform the procedure, was “y es.” We agree. Hensley acknowledged

that Dr. Scokin told her

that he would decide which type of intubation would be used for her surgery . Thus, Hensley wa s aware that Dr. Scokin might utilize oral intubation.
The trial court next found that by signing the con sent order and by failing to halt the procedurewith the knowledg e that Dr . Scokin mig ht use oral intubation, Hensley

authorize d the use of oral intubation. We respectfully disag ree and find that a genuine issue of mate rial fact exists on this issue. Here, Hensley told at least two ope rating room staff members that she would need na sal intubation rather

than oral intubation. Hensley a sserts that her gy necologist informed Dr. Scokin’s medical group that Hensley would require nasal intubation. She pro vided Dr . S co ki n w it h x -r ays that she asserts demonstrated her need for na sal intubation. Just prior to being medicated for the
su rg er y, Hensley

reminde d Dr. Scok

in that she would need nasal intubation. In addition, the consent form rel ied on by Dr. Scokin is not inc luded in the recor d before this cour t.
It is true that, when confron ted with D r. Scokin’ s stateme nt that he would decide what ty

pe of intubation would be used in Hensley’s hy sterectomy, while ly ing on the gurney

in ahospital gown being prepared for surger

y, Hensley

did not stop the procedu

re. While this is pertinent to the factual issue of whether Hensley

authorized the use of oral intubation, against the backgr ound of Hensley’ s persistent statements to all of

the medical personnel involved in her surgery , we must conclude that it is not dispositive. Based o n these c ircumsta nces, and cons idering

the evide nce in the light most favora ble to Hensle

y, w e find tha

t a genu ine issue of mater ial fact exists as to wh ether Hensley authorized Dr. Scokin’s use of oral intubation. Consequently , we reverse the trial court’s grant of summary judgme

nt in Dr. Scokin’s favor. The trial court is affirmed in all other re spects.-6-

The de cision of the trial court is reversed in part and aff irmed in part as set forth above. Costs are taxe d to the appellees, Daniel Scokin, M.D. and Memorial Anesthesiology Associates, for which execution may issue, if nec essary.

___________________________________ HOL LY M. K IR BY, J.