§47.4 Battery

The Case: Blanchard v. Kellum , 975 S.W.2d 522 (Tenn. 1998).

The Basic Facts: Plaintiff sued periodontal specialist alleging battery and lack of informed consent after he removed half of her teeth, allegedly without her permission.

The Bottom Line:

  • "We believe that there is a distinction between: (1) cases in which a doctor performs an unauthorized procedure; and (2) cases in which the procedure is authorized but the patient claims that the doctor failed to inform the patient of any or all the risks inherent in the procedure. Performance of an unauthorized procedure constitutes a medical battery. A simple inquiry can be used to determine whether a case constitutes a medical battery: (1) was the patient aware that the doctor was going to perform the procedure (i.e., did the patient know that the dentist was going to perform a root canal on a specified tooth or that the doctor was going to perform surgery on the specified knee?); and, if so (2) did the patient authorize performance of the procedure? A plaintiff's cause of action may be classified as a medical battery only when answers to either of the above questions are in the negative. If, however, answers to the above questions are affirmative and if the plaintiff is alleging that the doctor failed to inform of any or all risks or aspects associated with a procedure, the patient's cause of action rests on an informed consent theory." 975 S.W.2d at 524.
  • "Informed consent cases require, by statute, expert evidence to establish whether the information provided to the patient deviated from the usual and customary information given to patients to procure consent in similar situations. See generally German v. Nichopoulos, 577 S.W.2d 197 (Tenn. Ct. App. 1978) (holding expert evidence required to establish informed consent when patient knew of procedure to be performed but alleged that no risks associated with procedure were disclosed); see also Tenn. Code Ann. § 29-26-115, -118.1
    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 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.

    Pursuant to Tenn. Code Ann. § 29-26-115(b), a plaintiff bears the burden of proving the recognized standard of acceptable professional practice, that the defendant acted with less than ordinary and reasonable care in accordance with that standard, and that the plaintiff suffered injuries as a proximate cause of the defendant's act." Id.
  • "The inquiry focuses on whether the doctor provided any or adequate information to allow a patient to formulate an intelligent and informed decision when authorizing or consenting to a procedure. Shadrick v. Coker, M.D., [963 S.W.2d 726 (Tenn. 1998)]. To determine the adequacy of information provided in an informed consent case, a court must consider the nature of the medical treatment, extent of the risks involved and the applicable standard of care. Id.; Tenn. Code Ann. § 29-26-118. These determinations require expert testimony and are outside the common knowledge of a lay witness." Id.
  • "Lack of informed consent in a medical malpractice action under Tenn. Code Ann. § 29-16-118 operates to negate a patient's authorization for a procedure thereby giving rise to a cause of action for battery. Cardwell v. Bechtol, 724 S.W.2d 739, 750-51 (Tenn. 1987). There is, however, no prior authorization or consent in a medical battery case to be negated by expert testimony. The primary consideration in a medical battery case is simply whether the patient knew of and authorized a procedure. This determination does not require the testimony of an expert witness." Id.
  • "The plaintiff argues that she was not aware of Dr. Kellum's intention to perform a full extraction and that she did not authorize a full extraction during the office visit giving rise to this litigation. Consequently, the plaintiff's claim is appropriately classified as a medical battery." Id. at 524-25.

Other Sources of Note: Holt v. Alexander, No. W2003-02541-COA-R3-CV, 2005 WL 94370 (Tenn. Ct. App. Jan. 13, 2005) (alleged misrepresentation created jury issue on medical battery claim notwithstanding signed consent form and the absence of expert testimony); Church v. Peralas, 39 S.W.3d 149 (Tenn. Ct. App. 2000) (extension discussion of medical battery and causation, including the type of proof to be considered in a medical battery case and the significance of a patient's signature on an "informed consent" document authorizing a procedure).

Recent Cases:  Moses v. Dirghangi, 430 S.W.3d 371 (Tenn. Ct. App. 2013) (dismissal for failure to state a claim affirmed where plaintiff sought damages for medical battery and medical malpractice but failed to include allegations that the exam was performed without her authorization); Hinkle v. Kindred Hosp., No. M2012-02499-COA-R3-CV, 2012 WL 3799215 (Tenn. Ct. App. Aug. 31, 2012) (a health care provider who does not personally perform a procedure, but instead orders another provider to do so, cannot be liable for medical battery); Urlaub v. Select Specialty Hospital – Memphis, Inc., No. W2010-00732-COA-R3-CV, 2011 WL 255281 (Tenn. Ct. App. Jan. 30, 2011) (affirming summary judgment in medical battery claim finding defendant doctor did not commit the battery nor set it in motion).

After an accident, many injury victims and their families want more information on the accident and their legal rights. Consequently, many of them have found their way to these pages. While we are happy you are here, please understand Day on Torts: Leading Cases in Tennessee Tort Law was written to be a quick, invaluable reference for Tennessee tort lawyers. While the book provides the leading case for more than 300 tort law subjects and thousands of related case citations, it is not a substitute for personalized legal advice from a qualified lawyer.

Rather than researching these legal issues alone, we urge you to contact one of our award-winning lawyers who can sit down with you, review your case, answer your questions and clearly explain your rights and your options in a no-cost, no-obligation consultation. Our experienced attorneys handle all personal injury and wrongful death cases on a contingency basis, so we only get paid if we win. If for any reason you are unable to come to our office, we will gladly come to you.

To schedule an appointment, contact us online or call us at 615-742-4880 or toll-free at 866-812-8787.



The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

To order a copy of the book, visit www.dayontortsbook.com. John also blogs regularly on key issues for tort lawyers. To subscribe to the Day on Torts blog, visit www.dayontorts.com.

Client Reviews
Everything was great. You guys are a great representative. I was satisfied with everything. Truly appreciate John Day and his hard-working staff.
★★★★★
We thought that you did an excellent job in representing us in our lawsuit. We would recommend you to anyone. Mitch Deese
★★★★★
The Law Offices of John Day is, without a doubt, the best in Nashville! They treated me with the utmost respect and tended to my every need. No question went unanswered. I was always kept informed of every step in the process. I received phenomenal results; I couldn't ask for more. I would definitely hire the Law Offices of John Day again. Anthony Santiago
★★★★★
I would definitely recommend to anyone to hire John Day's law firm because everyone was helpful, made everything clear and got the job done. I am satisfied with how my case was handled. June Keomahavong
★★★★★
It's been a long battle but this firm has been very efficient and has done a remarkable job for me! I highly recommend them to anyone needing legal assistance. Everyone has always been very kind and kept me informed of all actions promptly. Linda Bush
★★★★★
I had a great experience with the Law Offices of John Day. The staff was very accommodating, and my phone calls/emails were always responded to in a timely manner. They made the entire process very easy and stress-free for me, and I had confidence that my case was in good hands. I am very happy with the results, and I highly recommend! Casey Hutchinson
★★★★★