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Christman v. Davis10/21/2005
PRESENT: Reiber, C.J., Dooley, Johnson and Skoglund, JJ., and Crawford, Supr. J., Specially Assigned.
1. Plaintiff Paul Christman appeals a superior court order granting defendants summary judgment on his claim of medical battery. Plaintiff claims (1) that material facts are disputed, and therefore summary judgment was inappropriate; and (2) that defendant periodontist performed a surgical procedure for which plaintiff did not consent and therefore defendant committed a battery. We affirm.
2. Plaintiff consulted defendant Gordon Davis, a periodontist, to treat his gum recession and root exposure. Defendant discussed procedures to obtain root coverage including a tissue graft, and plaintiff consented to this procedure. A tissue graft involves making vertical incisions around the exposed root; the incision is made to free gingival tissue and then donor tissue from the palate is grafted onto the root. After administering a local anaesthetic, defendant began the procedure and determined that instead he would perform a flap procedure. This procedure follows the same preliminary step as the graft, but after incision, the periodontist applies a protein, Emdogain, to the gum to help it adhere to the tooth, and no graft is made. After surgery, plaintiff was surprised that he did not receive a graft. He was upset to learn later that the procedure did not achieve full results and that he would need to undergo a tissue graft.
3. Plaintiff sued defendants for dental malpractice, lack of informed consent, and battery. Plaintiff eventually dismissed the malpractice and lack of informed consent claims, and proceeded solely on the battery claim. Defendants filed for summary judgment, arguing that common-law medical battery was preempted by Vermont's informed consent statute, 12 V.S.A. § 1909, and plaintiff was not battered because the flap procedure was within the bounds of plaintiff's consent. In opposition to defendants' motion, plaintiff argued that the informed consent statute did not preempt a common-law claim based on battery, and defendant's failure to notify plaintiff in advance of the flap procedure, and obtain plaintiff's specific authorization to conduct this particular procedure, constituted a battery.
4. The trial court ruled that the common-law battery claim was not preempted by statute because the statute was intended to define medical torts based on negligence, and battery is an intentional tort. See Wilson v. Smith, 144 Vt. 358, 361, 477 A.2d 964, 965 (1984) (holding that intent is an element of civil battery). The court concluded, however, that defendant performed surgery on an area of the body to which plaintiff consented, and choosing to perform a less-invasive procedure did not constitute battery.
5. On review of summary judgment, we apply the same standard as the trial court and will affirm the grant of the motion if there are no issues of material fact and the prevailing party is entitled to judgment as a matter of law. V.R.C.P. 56(c)(3); O'Donnell v. Bank of Vt., 166 Vt. 221, 224, 692 A.2d 1212, 1214 (1997). " he party opposing summary judgment is entitled to the benefit of all reasonable doubts and inferences." Carr v. Peerless Ins. Co., 168 Vt. 465, 476, 724 A.2d 454, 461 (1998).
6. Plaintiff bases his remaining claim in battery, which is an intentional act that results in harmful contact with another. Restatement (Second) of Torts § 13 (1965) [hereinafter Restatement]; Kent v. Katz, 146 F. Supp. 2d 450, 463 (D. Vt. 2001). In a medical context, a health care provider commits battery if the provider performs a procedure for which the patient has not given consent. Duncan v. Scottsdale Med. Imaging, Ltd., 70 P.3d 435, 4
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