On Dec. 16, 2015, a mother gave birth to her infant son named “Nate” at a suburban hospital near Nashville. The following morning, nurses took Nate from his mother’s room to the nursery purportedly for a routine examination. After the nurses returned Nate to the room, his mother noticed that Nate had bloody canker sores in his mouth. She called for the nurse to inquire about what happened. The nurse reviewed the chart and briskly told the mother that the doctor would call her to discuss it. Thereafter, the doctor called the mother to inform her that he had mistakenly operated on Nate’s tongue.

The doctor had performed a frenulectomy. This involves the doctor cutting a fold of tissue under Nate’s tongue so that he is not tongue-tied. No one at the hospital had told the mother that Nate was tongue-tied. More importantly, the mother did not authorize the procedure. The doctor admitted that he had mixed Nate up with another baby in the nursery. It was a case of mistaken identity that stunned the mother and the community. News of the case went on local television, and then went viral on CNN, HLN, ABC World News, People Magazine, The Tennessean, etc. The mother had a health care liability action against the hospital for negligence and the doctor for medical battery.

Cases of medical battery and informed consent are on the rise. In the usual case of medical battery, the procedure is unauthorized and most likely a consequence of mistaken identity. In the usual case of informed consent, the doctor relies exclusively on the hospital’s consent form to disclose the material risks of surgery; yet the consent form is nebulous or woefully deficient to the extent that the patient really does not understand the risk he or she is assuming.

The purpose of this article is to serve as a primer on medical battery and informed consent. These cases will continue to grow in proportion to the increase in the volume of patients. It is a consequence of modern medicine. Greater volume leads to shortcuts in health care. Surgical schedules will tighten as deadlines for more cases press the staff. Greater volume also leads to mistaken identity and confusion. The use of “time outs” by hospital staff before surgery to ensure they are working on the right patient and the right body part will not prevent the mistakes in all cases. Shorter office visits constrict the time doctors spend with patients. Those visits can last perhaps five or 10 minutes. This leaves less time for thorough discussion of surgical risks and alternatives.

On the day of surgery, patients are herded like cattle into the preoperative area. Patients receive a drug from their anesthesiologist or nurse anesthetist to relax them in advance of surgery. There is no time for the patient to contemplate the risks involved in any meaningful way. Some of these patients go to the surgical suite without a full understanding of the risks they assumed. They simply trust their doctor to do it right — that is, until something goes wrong. Overuse of physician assistants and nurse practitioners to perform the role traditionally reserved for medical doctors makes the situation worse. All of this strains the physician patient relationship, which is the cornerstone of our health care system.

Medical Battery

Medical battery occurs when a doctor performs an unauthorized procedure.[1] It is a species of battery that originated from the common law writ of trespass.[2] The roots of battery stem from England where even a modest level of bodily harm caused by another was deemed sufficient to breach the King’s peace.[3] The basis for medical battery is that every human, being of sound mind, has a right to determine what shall be done with his own body.[4] Therefore, a doctor who performs a procedure without his patient’s consent is liable in damages.[5]

Medical battery hinges on (1) whether the patient knew that the doctor was going to perform the procedure and (2) whether the patient authorized the doctor to perform it.[6] If the answer to one of these questions is “no,” then a medical battery has occurred.[7] The claim exists even when the doctor acts with helpful intent.[8] The patient’s right to self-determination trumps the doctor’s desire to do what he thinks is best.[9]

The textbook example of medical battery is when the doctor operates on the wrong patient or the wrong body part. Reported appellate cases of mistaken identity go back almost a century.[10] A medical battery occurs even where the unauthorized surgery is successful. For example, suppose a plastic surgeon at the end of breast augmentation decides to remove a birthmark on the patient’s thigh without consulting the patient in advance. The patient has suffered bodily harm in the eyes of the law even though removal of the birthmark turned out to be aesthetically pleasing.

Surgery is a controlled assault upon the body. It alters the body to some extent. The Second Restatement defines “bodily harm” as any physical impairment of the condition of the body, physical pain, or illness.[11] “Physical impairment” occurs where the structure of the patient’s body is altered regardless of whether the alteration is beneficial. Unauthorized surgery inevitably causes bodily harm.[12] It is irrelevant whether the doctor intended to offend or injure. The doctor’s motive to do what is best plays no role in these cases. Again, the patient’s right to control her body supersedes the doctor’s motive.[13]

The Tennessee Supreme Court first recognized medical battery in Butler v. Molinski.[14] Fourteen years later, the court explained in Ray v. Scheibert that a medical battery action would result when a “plaintiff did not effectively consent — therefore, did not consent at all — to the operation which the defendant performed.”[15] There is no requirement for expert testimony in medical battery.[16] The issue of authorization is within the common knowledge of laymen. The jury resolves this issue based on the testimony of the parties and documentary evidence.

The consent form is usually at the forefront of this litigation. Hospitals and doctors invariably submit consent forms as evidence that the patient authorized the surgery. There is a good reason for this. A signed consent form gives rise to a presumption of authorization in absence of misrepresentation, forgery or lack of capacity.[17] The meaning of the consent form can be a jury question. In Smith v. Portera,[18] the patient sued the doctor for medical battery because she did not authorize a specific procedure, which was not among the listed scheduled procedures on the consent form. The consent form authorized additional surgery “only if it was required by an unforeseen condition.” The patient and doctor differed on the interpretation of an unforeseen condition. The Court of Appeals held the meaning of the consent form was a fact issue for the jury to decide.

The patient also has the right to control the manner in which the procedure is performed. In Hensley v. Scokin,[19] the patient sued for medical battery arising out of a hysterectomy. The patient instructed her anesthesiologist to use nasal intubation instead of oral intubation to anesthetize her for surgery due to past problems with oral intubation. The anesthesiologist told her that he would use the type of intubation “that he thought was best for her.” During the hysterectomy, the doctor intubated the patient through the oral pathway, which caused a problem after surgery. The trial court granted summary judgment because the patient knew the anesthesiologist might use oral intubation if he thought it was best for her. The Court of Appeals reversed, finding there was a fact issue whether the patient authorized oral intubation. Paternalistic medicine does not always triumph in court.

The scope of authorization is not necessarily restricted to the four corners of the consent form. Tennessee allows parole evidence to prove the patient verbally authorized procedures in addition to those written in the consent form. In Bates v. Metcalf,[20] the patient sued the doctor for medical battery arising out of a lateral internal sphincterotomy. The doctor advised the patient in advance of surgery that once he determined the cause of an anal fissure he would fix the problem “whatever it might be.” The doctor did not inform the patient that he would perform a sphincterotomy. The consent form did not spell out “lateral internal sphincterotomy” among the scheduled procedures. The doctor argued that the patient impliedly authorized the sphincterotomy. The Court of Appeals held that whether the patient impliedly authorized the sphincterotomy was a jury question.
On the other hand, general language in a consent form does not give a doctor unfettered discretion to operate where he thinks best. In Massingale v. Lee,[21] the doctor performed surgery to repair a bilateral inguinal hernia. During surgery, the doctor removed the patient’s left testicle. The patient sued the doctor for medical battery alleging that removal of his left testicle was unauthorized.

The consent form signed by patient stated in pertinent part:

I consent to the performance of operations and procedures in addition to or different from those contemplated, whether or not arising from presently unforeseen conditions, which the above named doctor or his associates or assistants may consider necessary or advisable in the course of the operation.

The consent form was not the only evidence of authorization. The patient testified that he asked the doctor whether surgery would “affect me in any way in my manhood or anything happen down there that I should need to know about.” The doctor did not tell the patient that he would remove the testicle. The doctor justified removing the testicle by saying, “Sometimes you find something unusual during surgery that you weren’t prepared for and you know you will have to go back for surgery again.” The Court of Appeals held that whether the patient authorized removal of his testicle was a jury question.

Tennessee law does not recognize a claim for indirect medical battery. In Hinkle v. Kindred Hosp.,[22] the patient was admitted to the hospital for rehabilitation. The doctor ordered the hospital staff to insert a rectal tube as part of the patient’s bowel management system. When the nursing staff arrived to insert the rectal tube, the patient refused it. Nevertheless, the hospital staff inserted the tube into the rectum over the patient’s objection. He experienced pain and rectal bleeding. He died from complications related to the rectal bleeding. The doctor never touched the patient or directed the procedure. Yet, the patient’s wife sued the doctor for medical battery for ordering the procedure in the first place. She argued it was medical battery because the doctor had set in motion the chain of events leading to insertion of the rectal tube.

The Court of Appeals rejected the wife’s theory. Traditional examples of a viable claim for indirect battery include throwing an object or shooting someone. The tortfeasor in those cases has exclusive control of the instrumentality that causes the injury. The doctor in Hinkle did not have control of the rectal tube nor did he direct the procedure. Moreover, the Court of Appeals was reluctant to expand the definition of a medical battery because the wife had an adequate legal remedy against the hospital staff. This opinion dovetails with Urlaub v. Select Specialty Hospital-Memphis Inc.,[23] where the court found no medical battery because the doctor was not present for the procedure.

A patient can repudiate (or vitiate) authorization even after surgery if the doctor elicited consent through misrepresentation. In Holt v. Alexander,[24] the plaintiff sued the doctor for medical battery. The doctor told the patient in the emergency room that he needed to remove a kidney stone. The patient asked the doctor whether his treating urologist had approved the surgery. The doctor replied that the urologist had approved the surgery; therefore, the patient authorized the surgery. After surgery, the plaintiff learned that the doctor had not spoken to his urologist. The urologist had not approved the surgery. The Court of Appeals held that whether the doctor’s misrepresentation nullified the patient’s authorization was a jury question. In essence, consent induced through misrepresentation is no consent at all.

Informed Consent

Courts established the basic principles of informed consent in the early 1900s, recognizing that a patient could bring a cause of action against a medical practitioner for performing an unauthorized medical procedure.[25] Soon after, this principle was extended to necessitate consent for medical procedures, requiring that a physician’s treatment not exceed the patient’s wishes, regardless of what the physician, in his or her professional judgment, felt was best. White v. Beeks.[26] A claim for informed consent exists when a patient authorizes the procedure but is not informed of the material risks associated with the procedure.[27] It concerns the manner in which the doctor obtained the patient’s authorization, whereas a claim for medical battery concerns whether the procedure was authorized in the first place.[28]

Informed consent developed from the theory of battery, which created a cause of action for a “nonconsensual, intentional, and offensive touching of another without lawful justification.”[29] The lack of informed consent operates to negate a patient’s authorization for a procedure.[30] For example, if the patient does not authorize the procedure, then the claim is medical battery. On the other hand, if the patient authorizes the procedure but does not know the inherent risks associated with it, then the claim is informed consent. Only the doctor has a duty of informing the patient of all material risks and alternatives associated with a procedure.[31] The hospital has no duty to obtain informed consent.

A claim for informed consent sounds in negligence. It is governed by Tenn. Code Ann. § 29-26-118. A plaintiff must prove “(1) what a reasonable medical practitioner in the same or similar community would have disclosed to the patient about the risk posed by the proposed procedure or treatment; and (2) that the defendant departed from the norm.”[32] Unlike medical battery, an informed consent claim requires expert testimony.[33] A competent expert must testify that the doctor failed to disclose risks in accordance with the recognized standard of acceptable professional practice for that community or similar community.[34]

The issue of causation is based on an objective standard: “whether a reasonable person in the patient’s position would have consented to the procedure or treatment in question if adequately informed of all significant perils.”[35] This is the classic “reasonable man” standard. The patient’s testimony of what he or she would do is relevant to a determination of whether a reasonable person would consent. However, the patient’s subjective intent is not dispositive.[36]

Because the informed consent doctrine is predicated on a theory of battery as opposed to negligence, a doctor who proceeds with surgery without first obtaining the informed consent of the patient is liable “for the resulting injuries regardless of whether those injuries resulted from negligence.”[37] For example, suppose a surgeon performs two procedures combined into one. One part of the surgery involves the knee and another part involves the fibula (calf bone). The surgeon does not obtain authorization to work on the fibula. Furthermore, she does not discuss all of the material risks associated with both procedures. The doctor negligently performs surgery which leads to infection and amputation of the patient’s leg below the knee.

The patient has multiple theories for recovery in one case. The first claim is battery based on unauthorized work on the fibula. The second claim is informed consent for failure to discuss all material risks associated with the surgery. The third claim is malpractice arising out of the negligent surgery. Theories of medical battery and malpractice are not ordinarily inconsistent. No election of remedies is generally required.[38] If a medical battery exists, then the issue of malpractice may not be reached. If no medical battery is proven, then informed consent or malpractice case is still in play. This means medical battery, informed consent, and malpractice can coexist as actionable theories in the same case.[39]

Whether a claim is medical battery or informed consent is an important distinction under the Tennessee Medical Malpractice Act. The act mandates a certificate of good faith with the original complaint in any health care liability action where expert testimony is required.[40] However, medical battery is not a case where expert testimony is required.[41] Therefore, Tenn. Code Ann. § 29-26-122(a) does not require a certificate of good faith to be filed with the original complaint if the claim is medical battery.[42] To hold otherwise would be a paradox, requiring expert approval for a case that requires no expert.

There are circumstances where is it beneficial for doctors and hospitals to use consent forms offensively at trial even when there is no claim for informed consent. For example, suppose the patient signs a consent form that authorizes the surgery. The consent form specifies infection among the other material risks associated with the surgery. Days later, the patient exhibits fever, chills, and has redness, heat and pus at the surgical site. Suppose the doctor brushes off these signs and symptoms of infection. The patient succumbs to the infection and dies in the hospital. At trial, the doctor seeks to admit the consent form into evidence to show the patient assumed the risk of infection when he authorized the surgery.

Patients cannot consent to negligence. They do not assume the risk of negligence by signing a consent form. In Wright v. Kaye,[43] the court held that the plaintiff’s awareness of the risks of surgery was irrelevant where there is no informed consent claim. When a patient consents to surgery, she does not consent to negligence. Consent to surgery is no defense to negligent surgery. Misuse of the consent form under these circumstances should be excluded under Rule 403.

Another interesting dilemma of informed consent litigation is whether all risks of a procedure, including those that did not actually materialize, are relevant to whether the patient gave informed consent. In White v. Beeks,[44] the Supreme Court held that the patient can present expert testimony of all risks of a procedure, including those that did not actually materialize. The patient needs to be informed of all “perils bearing significance” in order to give informed consent. “Perils bearing significance” necessarily include those perils that caused harm and those that did not. The fact that a risk did not materialize does not make it less of a risk. The jury is allowed to consider all of the risks in their assessment of what a prudent person would have decided if properly informed of all the significant risks.

So long as the law prefers the patient’s right to control her body over the doctor’s desire to do what is best, medical battery and informed consent claims are here to stay.

Notes

1. Ashe v. Radiation Oncology Assoc., 9 S.W.3d 119, 121 (Tenn. 1999).
2. W. Page Keeton, et al., Prosser and Keeton on Torts 29 (5th ed. 1984).
3. Francis Hilliard 1, The Law of Torts, 191 (1859).
4. Schloendorff v. Society of N.Y. Hosp., 211 N.Y. 125, 105 N.E. 92, 93 (1914).
5. Id.
6. Blanchard v. Kellum, 975 S.W.2d 522, 524 (Tenn.1998).
7. Id.
8. Kenneth W. Simons, “A Restatement (Third) of Intentional Torts,” 48 Ariz. L. Rev. 1061 (2006).
9. See Ben A. Rich, “Medical Paternalism v. Respect for Patient Autonomy: The More Things Change the More They Remain the Same,” 10 Mich. St. U.J. Med. & L. 87 (2006).
10. See Gill v. Selling, 267 P. 812 (Or. 1928) (a case of mistaken identity where a doctor performed a spinal test on the wrong patient, who had been mistakenly called in from the waiting room by a nurse who did not inquire as to the patient’s identity).
11. Restatement of the Law 2d, Torts (1965), Section 15, Comment a.
12. Id.
13. See Ben A. Rich, “Medical Paternalism v. Respect for Patient Autonomy: The More Things Change the More They Remain the Same,” 10 Mich. St. U.J. Med. & L. 87 (2006).
14. Butler v. Molinski, 198 Tenn. 124, 277 S.W.2d 448, 451–52 (1955) (distinguishing between actions for negligent malpractice and those premised upon the unauthorized performance of an operation).
15. 224 Tenn. 99, 450 S.W.2d 578, 581 (1969).
16. Blanchard, 975 S.W.2d at 524.
17. Church v. Perales, 39 S.W.3d 149, 161 (Tenn.Ct.App.2000). This presumption applies in medical battery and informed consent cases.
18. Smith v. Portera, 2005 WL 1269081 (Tenn.Ct.App.).
19. Hensley v. Scokin, 148 S.W.3d 352, 353 (Tenn.Ct.App.2003).
20. Bates v. Metcalf, 2001 WL 1538535, at *6 (Tenn.Ct.App. May 6, 2001).
21. Massingale v. Lee, 2005 WL 990557, at *1 (Tenn.Ct.App. Apr. 28, 2005).
22. Hinkle v. Kindred Hosp., 2012 WL 3799215 (Tenn.Ct.App. Aug. 31, 2012).
23. Urlaub v. Select Specialty Hospital-Memphis Inc., 2011 WL 255281, at *6 (Tenn.Ct.App. Jan. 20, 2011).
24. Holt v. Alexander, 2005 WL 94370 (Tenn.Ct.App. Jan. 13, 2005).
25. See, e.g., Pratt v. Davis, 224 Ill. 300, 79 N.E. 562, 565 (1906); Mohr v. Williams, 95 Minn. 261, 104 N.W. 12, 16 (1905).
26. White v. Beeks, 469 S.W.3d 517, 524 (Tenn. 2015).
27. Ashe, 9 S.W.3d at 121; Blanchard, 975 S.W.2d at 524.
28. Church, 39 S.W.3d at 159.
29. White, 469 S.W.3d at 524.
30. Blanchard, 975 S.W.2d at 524.
31. Bryant v. HCA Health Svcs. of Tn. Inc., 15 S.W.3d 804, 810 (Tenn.2000).
32. Ashe, 9 S.W.3d at 121.
33. Tenn. Code Ann. § 29-26-118; Ashe, 9 S.W.3d at 121.
34. See Shadrick v. Coker, 963 S.W.2d 732 (Tenn.1998).
35. Hawk v. Chattanooga Orthopaedic Group P.C., 45 S.W.3d 24, 32 (Tenn.Ct.App.2000).
36. Ashe, 9 S.W.3d at 121.
37. Hawk, 45 S.W.3d at 32.
38. Cardwell v. Bechtol, 724 S.W.2d 739, 751 (Tenn.1987).
39. Urlaub, 2011 WL 255281, at *5 (citing D. Scott Porch IV, “Recent Developments in Tennessee’s Doctrine of Informed Consent,” 30 U. Mem. L.Rev. 593, 600 (2000)).
40. 40 Tenn. Code Ann. § 29-26-122(a).
41. Abeyta v. HCA Health Services of Tn. Inc., 2012 WL 5266321, at *9 (Tenn.Ct.App. Oct. 24, 2012).
42. Barnett v. Elite Sports Medicine, 2010 WL 5289669, at *5 (Tenn.Ct.App. Dec. 17, 2010).
43. Wright v. Kaye, 593 S.E.2d 307, 317 (Va.2004).
44. White, 469 S.W.3d at 528.

CLINTON L. KELLY is a partner of the Kelly Firm in Hendersonville. He is board certified in medical malpractice law by the American Board of Professional Liability Attorneys. He is also certified as a medical malpractice specialist by the Tennessee Commission on Continuing Legal Education and Specialization. Kelly currently serves on TBA’s CLE committee and on the TBA Litigation Law Section Executive Council. A graduate of the University of Memphis Law School, he has written a book, Kelly on Malpractice 2.0 (2nd ed. 2012).