Kelly on Malpractice

In Holt v. Alexander, 2005 WL 94370(Tenn.Ct.App.), the plaintiff went to the hospital suffering from a kidney stone. The next morning, the plaintiff was scheduled to undergo a procedure to remove the stone. The defendant physician told the plaintiff that the kidney stone had to be removed immediately and that he would have perform a stone manipulation. This procedure requires the surgeon inserts a needle in the patient’s back and, through the needle, inserts a device to manipulate the stone and physically remove the stone from the patient’s body. The procedure requires the administration of an anesthetic and a four to five day stay in the hospital following the surgery. The plaintiff first asked the defendant whether his treating urologist had approved of the procedure in advance. The defendant replied that he had spoken to the urologist about the situation and that the urologist had “okayed” the procedure.

The plaintiff discovered later that the defendant had not spoken with his treating urologist, and that the urologist had not approved the procedure. The plaintiff sued the defendant for medical malpractice and medical battery. Specifically, the plaintiff alleged that the defendant committed medical battery by obtaining his consent to the surgery through misrepresentation. The trial court granted summary judgment in favor of the defendant. On appeal, the plaintiff argued that a jury could conclude that his signature on the consent form was based on a material misrepresentation of fact, and therefore, was a nullity. Specifically, the plaintiff argued that the defendant had misrepresented that he had spoken with the urologist and that the plaintiff had consented to the procedure by reason of his treating urologist’s alleged approval. The defendant maintained that the plaintiff’s claim was actually an informed consent claim, not medical battery. Since the plaintiff had no expert testimony to support his claim of lack of informed consent, summary judgment was indeed appropriate.

The Court of Appeals declared that where there is evidence to undermine the validity of the patient’s consent, then there is a claim for medical battery. In this case, there was evidence of a misrepresentation sufficient to rebut the presumption of consent from the signed consent form. The signed consent form raised only a presumption of consent to surgery. A claim for medical battery can be established if it is shown that the physician intentionally or recklessly misrepresented a material fact in order to obtain the patient’s signature on the consent form, thus vitiating the patient’s consent. In other words, consent obtained by misrepresentation is invalid. The plaintiff’s claim was medical battery. Thus, expert testimony was not required to establish his claim. The court held that the plaintiff’s testimony regarding the defendant’s alleged misrepresentation was sufficient to create a genuine issue of material fact with respect to the validity of his consent. Therefore, the trial court erred in granting summary judgment.

This is an interesting case that shows how consent can be vitiated, giving rise to a medical battery. Remember this rule to distinguish the claims: when there is no consent, there is battery; when there is consent but no discussion of all material risks, then there is an informed consent claim.

In Hensley v. Scokin, 2003 WL 22118367, *1 (Tenn.Ct.App.), Hensley was scheduled to have a hysterectomy. Because of a preexisting problem with her temporomandibular joint (”TMJ”), Hensley’s pain-management physician advised Hensley to avoid oral intubation during the surgery and instead opt for nasal intubation. On the day of her surgery, Hensley told her anesthesiologist, defendant, Dr.Scokin, that because of the TMJ problem, he should use nasal intubation instead of oral intubation to anesthetize her for the hysterectomy.

Hensley signed a consent form for the surgery but also told at least two hospital employees that she would require nasal intubation. Just before her surgery, while Hensley was lying on a gurney in her hospital gown, Dr. Scokin spoke with her. Hensley testified that she explained to Dr. Scokin the need for nasal intubation. Dr. Scokin’s response, she said, was to cast the x-rays aside and tell her “he would decide what type of intubation Hensley would receive.” Hensley said that she reminded Dr. Scokin of her need for nasal intubation. Contrary to Hensley’s repeated requests, Dr. Scokin intubated Hensley orally, rather than nasally, during the surgery, . Hensley’s lawsuit asserted that, as a result of the oral intubation, she developed increased TJM pain and that Dr. Scokin caused severe injury to her lower teeth and the bone structure of her TMJ. Dr. Scokin filed a motion for summary judgment, asserting that Hensley had proffered no expert testimony showing either that he deviated from the standard of medical care or that the deviation resulted in Hensley’s alleged injuries. In opposition to Dr. Scokin’s motion for summary judgment, Hensley argued that her complaint asserted a cause of action for medical battery, and that expert testimony was not required for such a claim. In reply, Dr. Scokin argued that Hensley was erroneously “attempting to interchange the two similar but separate and distinct causes of action of informed consent and battery.

In Blanchard v. Kellum, 975 S.W.2d 522 (Tenn. 1998), the Supreme Court recited a simple test used to determine whether a case constitutes a medical battery: (1) was the patient aware that the doctor was going to perform the procedure … 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—then the patient’s cause of action rests on an informed consent theory.

Dr. Scokin contended that both of the questions noted above were answered affirmatively, because it was undisputed that Hensley knew that intubation was required and that she signed the consent form for the surgery after having been made aware of the risks and benefits of anesthesia and intubation. Therefore, Dr. Scokin argued, Hensley’s cause of action was one of lack of informed consent. The Court of Appeals held that a genuine issue existed of whether Hensley authorized the procedure (oral intubation) in spite of the consent form. After all, she told anyone who would listen to her “no nasal intubation.”

This is a great primer on medical battery and informed consent. Hensley also means that the terms of a consent form are not dispositive. See Bates v. Metcalfe, 2001 WL 1538535 (Tenn.Ct.App.) (allowing parol evidence of physician’s discussion with the patient to negate the informed consent claim; see contra Church v. Perales, 39 S.W.3d 149, 164 (Tenn.Ct.App. 2000) (adopting a contractual presumption that the terms of the consent form control the understanding of the parties).

An informed consent claim is governed by T.C.A. § 29-26-118 and exists when the patient knows that a procedure is going to be performed but is unaware of the material risks associated with the procedure. The claim does not relate to the manner in which the procedure was performed, but rather to the manner in which the physician obtained the patient’s consent to perform the procedure. Informed consent claims require expert proof that the physician’s conduct fell below the applicable standard of care. The expert must testify that the defendant’s disclosure of risks and alternatives to the patient was insufficient. The plaintiff must then prove that a reasonably prudent patient would not have consented to the procedure if he had been suitably informed of all the material risks, benefits, and alternatives.

A medical battery occurs when a physician performs an unauthorized procedure. A typical example is surgery on the wrong part of the patient’s body. The controlling factual issues in these cases are (1) whether the patient knew that the physician was going to perform the procedure and (2) whether the patient authorized the physician to perform it. Since the focus of the claim is upon the patient’s knowledge, there is no prerequisite of expert testimony to maintain the claim. The existence of a signed consent form gives rise to a presumption of consent in absence of fraud, lack of capacity, and forgery. See Church v. Perales, 39 S.W.3d 149, 171 (Tenn.Ct.App.2001); Bates v. Metcalfe, 2001 WL 1538535 (Tenn.Ct.App.).