Many victims arising from the negligence of a physician does not always sound in medical malpractice but rather intentional tort. The Supreme Court recognized the intentional tort of medical battery in Blanchard v. Kellum, 975 S.W.2d 522 (Tenn. 1998). In Blanchard, the court observed that in cases where “a doctor performs an unauthorized procedure,” a medical battery has occurred, but when “the procedure is authorized but the patient claims that the doctor failed to inform the patient of any or all the risks inherent in the procedure,” there is a cause of actionfor lack of informed consent. Id. at 524. The Blanchard court continued:
A simple inquiry can be 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 abovequestions 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, the patient’s cause of action rests on an informed consent theory. the Tennessee Supreme Court articulated in Blanchard the test to determine whether a cause of action is for medical battery or for lack of informed consent. If the patient knew the procedure would be performed and authorized the procedure, but was not made aware of the inherent risks of the procedure, then the claim is for lack of informed consent. Expert testimony is normally required for a claim of lack of informed consent. In contrast, if the patient did not know that the procedure was going to be performed, or if the patient did not authorize the performance of the procedure, then the claim is for medical battery. For medical battery, the plaintiff is not required to provide expert medical testimony, because the patient’s knowledge and awareness is the focus in such a claim.
Many medical battery claims can arise out of a variety of fact patterns. One, a young lady may enter a physicians office presenting symptoms of a cough or need to update medication for seizures. A male physician may perform a criminal act of rape by fraud by perpetrating inappropriate touching of a sensitive area while under the guise of a physical medical examination. Such a patient would be prudent to report this to their local police department and the Tennessee Board of Medical Examiners and/or Tennessee Department of Health. Second, a patient may have a surgical procedure performed on an area of her body and gave informed consent to such procedure. However, while under anesthesia the surgeon may notice another issue with the patient and perform an additional procedure without consent of the patient. This is classic medical battery where the patient did not have knowledge or nor consent to such a procedure or touching.
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