The Difference Between Medical Battery and Informed Consent
posted on November 1st, 2003 in Informed Consent by clintIn 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).