*1 BLANCHARD, Frances
Plaintiff/Appellant, KELLUM, D.D.S., Jackson.
July 13, 1998. Sept. *2 allegedly lost con- and disoriented
became office. She in Dr. Kellum’s sciousness while Hospital Francis transported St. was by phy- and treated she was admitted where III, Timothy Ryan, Memphis, A. for Plain- sicians. tiff/Appellant. against Dr. Kellum plаintiff filed suit The Bailey, Memphis, P. for Defen- George battery/lack of consent alleging both the stan- services “fell below in practice of care and dards reasonable community.” in answers She asserted OPINION interrogatories that Dr. Kellum defendant’s HOLDER, Justice. thirty-two her that all teeth did inform The with which confronted issues we are during single proce- were to extracted (1) expert аre: is re- plaintiff maintained dure. The quired in a case when having a full would have consented performs an unauthorized doctor single office visit. Fol- (2) whether the defendant’s affidavit hospi- lowing plaintiff’s release from now us the non- before tal, completed the Dr. Kellum extractions burden separate appointments. a series Quality Food summary filed a motion for Dr. Kellum (Tеnn.1998), Hall, Byrd supported by what can best be judgment hold that testi- We conclusory A mem- affidavit. described as mony in a medical argued support of the motion orandum was cause of action specifi- plaintiff had “failed to state that the premised theo- properly on medical applicable of care in cally what the standard ry, affi- and that defendant’s The аlso al- memorandum was.” plaintiff’s davit did not plaintiff allege leged that the had faded summary judgment. this motion by Dr. Kellum devi- specifically what actions Appeals’ Court of decision is of care. ated from the standard court. case is remanded to trial supported by Dr. Kellum’s The motion was stated: her affidavit FACTS treatment was “administered Blanchard, sought The plaintiff, Frances by accepted and followed gum-related problem for a treatment segment profession” significant [sic] periodontal specialist was advised if the “sus- practices; which she have hеr teeth extracted. The then damage, injury or it was not tained defendant, sought the services any negligence” ... ... or caused related During appointment D.D.S. with part; Dr. that her treat- on Kellum’s Kellum, Dr. Kellum anesthetized fail meet did not cavity began plaintiff’s entire oral Kellum’s appropriate standard of care. Dr. thirty-two plaintiff’s extraction of of care neither set forth аffidavit teeth. a full nor extraction. plaintiff alleges that Dr. Kellum never granted the defendant’s thirty-two The trial court her that all teeth would summary finding that judgment simultaneously single extracted “genuine issues оf material in her there were no plaintiff asserted office visit. The plaintiff apparently abandoned pain fact.” The complaint that became unbearable malprаctice issue Dr. Kellum to the medical and that she refused allow the trial court erred dis- rec- assert that proceed further extractions. The with missing battery/consent issue. extracted ord that Dr. Kellum had indicates Appeals found Court instructed evidence, failed “to come forward further extractions. cease expert opinion,” form of an and affirmed the requirе, by Informed consent eases statute, trial court’s dismissal. evidence to establish whether
the information devi customary from ated the usual and informa ANALYSIS *3 given patients procure tion to to consent in has that generally similar See situations. German v. give permisson Kelhim pull thirty-two to Nichopoulos, (Tenn.Ct.App. giving the to office visit rise this 1978) (holding required evidence to litigation. contеnds that her patient establish informed consent when appeal predicated upon claim on is a procedure performed knew of to be but al plaintiff’s person” of “a violation of or “an leged procedure that no risks associated with battery” actionable is not “related to disclosed); were see also Tenn.Code Ann. professional nеgligence.” medical or She ar- 29-26-115, § inquiry -118.1 The focuses on gues testimony that be provided any adequate whether the doctor or required merely to show whether Dr. Kellum patient information a to allow to formulate an procured permission perform to extrac- the intelligent and informed autho tions. rizing consenting procedure. or to a Sha Coker, M.D., (Tenn. drick 963 726 S.W.2d We believe there is a distinc 1998). To determine the adequacy infor tion between: cases which a doctor (2) mation in an performs informed an unauthorized a must court consider the nature the mеdi cases which the is authorized treatment, risks cal extent of the patient involved the claims that the doctor failed Id.; the care. patient any inform the or all the risks § Tenn.Code Ann. 29-26-118. Thesе deter procedure. inherent Performance of require expert testimony minations and are an unauthorized constitutes a knowledge lay the common of a battery. outside wit simрle medical can inquiry A ness. used to determine a whether ease constitutes battery: a patient medical was the aware Lack of informed medical perform going doctоr was malpractice under Tenn.Code action Ann. (i.e., patient did the know that the § operates patient’s 29-16-118 a going perform dentist was a root canal on procedure thereby authorization giving specified tooth or going doctor was battery. rise action for cause of Card knee?); perform surgery specified on the Bechtol, well S.W.2d 750-51 and, if patient perfor so did the authorize (Tenn.1987). is, however, prior There no procedure? plaintiffs mance of the authorization or consent in a medical may of action be classified as a bat medical negated expert testimony. to be tery only when answers to either primary consideration a medical If, questions negative. above are in the how simply patiеnt case is whether the knew of ever, questions answers to above are procedure. This determi and if alleging affirmative is require nation does not doctor failed to inform of risks exрert witness. aspects procedure, associated with
patient’s cause of rests on an argues action she was theory. of Dr. aware Kellum’s intention to action, malpraсtice § In a shall Tenn.Code Pursuant Ann. 29-26-118. 29-26-115(b) prove 29-26-115(b), evidence as § Tenn.Code Ann. bears supply appropriate that the defendant did not proving the burden of standard of obtaining information to the his in- acceptable practice, professional that the defen- recog- formed consent in accordance with the ordinary dant acted with than less reason- аcceptable professional prac- nized standard of standard, care in able accordance.with that profession specialty, tice in the and in the proximatе injuries suffered any, practices defendant in the com- cause of the defendant’s act. munity practices in which he similar communities. Dr. Kellum’s affidavit did We hold that and that she did not authorize full extraction giving the office visit element a full extraction essential Consequently, an affirmative defense. this claim or establish appropriately is classified as plaintiffs claim did not shift Aсcordingly, the burden battery. 588; medical at plaintiff. McCarley, Byrd, 847 Sum- inquiry Our next the de battery is mary judgment on the issue of efforts, in motion fendant’s movant is remanded summary judgment, properly negated an proceedings trial court for consistent essential element shall opinion. Costs of an affirmative ease established defendant, Dr. taxed to the negation Absent of an essential defense. *4 D.D.S., may issue nec- for which execution of an affirmative element or establishment essary. defense, non the burden does shift to the summary judgment proceeding. movant in a ANDERSON, C.J., and DROWOTA Quality Foods BIRCH, JJ. (“If at 588 the movant does not suit, for non claimed basis ORDER DENYING PETITION produce support either FOR REHEARING ing discovery affidavits materials is summary judg PER CURIAM. fails.”). Kellum, D.D.S., Defendant/Appel- lee, petition to has filed a rehear Dr. Kеllum’s affidavit con Tenn.R.App.R. contending tains statement that she acted principle “in opinion form ... and that our conflicts that such law. proposition treatment would not and did law and оverlooks care_” fail to meet the standard of consideration, After we conclude that due non-responsive affidavit is to the petition rehearing be and the allegation thаt Dr. Kellum to inform failed hereby at the cost of Defen- same denied of her intention to appointment giving Moreover, to this theory implied
brief on a consent: relies in, p]laintiff came
[When the sat down chair,
the dental allowed the Doctor cavity, anesthetize her entire oral will- WHITE, the Administratrix Barbara ingly submitted to the extraction White, Earl of the Estate of R. it is teeth —that reasonable for deceased, Plaintiff/Appellant, presume Defendant/Appellee Doctor that she has the Patient’s “consent” to extract her teeth. LAWRENCE, M.D., H. William theory implied does the plaintiffs an essential element of claim.2 proffer admissible evi- defendant must at Jackson. establishing dence autho- rized a full extraction to 31, Aug. 1998. burden, signed such autho- Oct. rizing im- full extraction. Reliance plied allegation a mere
creatеs material issues of fact. question formulate an who is under can either authorize a 2. We pro- intelligent pro- and is in the and informed the influence anesthetic undergoing itself. cess of an extensive dental cedure