The Difference Between Informed Consent and Medical Battery
posted on November 1st, 2002 in Informed Consent by clintAn 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.).