Day on Torts
The distinction between a lack of informed consent case and a pure medical battery case is set out in Blanchard v. Kellum, 975 S.W.2d 522 (Tenn. 1998). An informed consent case requires expert proof as to the standard of care (or recognized standard of acceptable professional practice) of similar medical professionals. The plaintiff must establish what information is provided to patients prior to the procedure, and how the information is disclosed to the patient, in order to prove that the professional deviated from the standard of care. In a medical battery case, on the other hand, the plaintiff must establish either that the patient was unaware that the doctor was going to perform the procedure, or that the patient did not authorize the procedure. Medical battery cases include those in which the doctor performs a surgery that has been discussed with the patient, but performs the surgery on the wrong part of the body (i.e., amputation of the wrong limb). A true medical battery case does not require expert witness testimony on the standard of care, because there is no prior consent to be judged.
This is complaint from a medical malpractice and medical battery case in which a surgeon mixed up two of his patients’ charts, leading him to perform a surgery on the plaintiff to which she had never consented. Download file