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Smith v. Portera5/27/2005
uded without incident.
On February 9, 2004, Ms. Smith filed a complaint against Dr. Portera requesting compensatory damages for medical battery. The complaint alleges that Dr. Portera excised the lesion described above without Ms. Smith's consent or knowledge. Among other things, the complaint further alleges the following:
On August 17 Ms. Smith was discharged from the hospital. On Saturday, August 20, the sutures which had been applied by Defendant Portera to close the added surgery to cut out the ulcerated area failed to hold that tissue together. The resulting open wound necessitated admission by Defendant Portera to Memorial Hospital for treatment, hopefully to effect healing of the unplanned surgical wound. Such hospitalization provided only minimal improvement. To continue efforts to promote wound healing, Ms. Smith was basically confined to her bed for months on end. Home health nursing services provided assistance trying to obtain closure of the open wound. Only after months was Ms. Smith able to effect minimal healing of the condition. Finally, by the Fall of 2003 the wound healing process had gradually progressed and was by that time similar to what Defendant Portera observed during his examination under general anesthesia on August 14, 2000. In other words, the ulceration had finally returned to its condition from over three years earlier; however, there had developed more scar or devascularized tissue.
The complaint also alleges that during the time of her recovery Ms. Smith "suffered significant muscular atrophy to her body because she was unable to maintain any exercise routine to treat her impaired lower extremities."
On July 20, 2004, Dr. Portera filed a motion for summary judgment and supporting memorandum of law which assert that Ms. Smith expressly consented to the excisional biopsy by signing the consent form at Memorial Hospital just prior to her surgery. Ms. Smith filed a motion for partial summary judgment and, thereafter, a consolidated brief in opposition to Dr. Portera's motion for summary judgment and in support of her motion for partial summary judgment. In this brief, Ms. Smith asserts that she did not give Dr. Portera express consent to perform the excisional biopsy and that there is no genuine issue of fact in that regard. She further asserts that there is, however, a genuine issue of material fact with respect to whether she gave implied consent to the surgery complained of and that this issue should be resolved by a jury. A hearing on these motions was held on October 18, 2004. The trial court determined that Ms. Smith's case was actually a cause of action for medical malpractice rather than medical battery as stated in her complaint. Based upon this determination and the trial court's further observation that Ms. Smith had not presented any expert evidence showing that the surgery complained of was not in her best interest, the trial court granted Dr. Portera a summary judgment. Thereafter, Ms. Smith filed this appeal.
The sole issue we address in this appeal is whether the trial court erred in granting a summary judgment in favor of Dr. Portera.
The standard governing our review of a trial court's decision granting a motion for summary judgment is set forth by the Tennessee Supreme Court in Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 89 (Tenn. 2000) as follows:
The standards governing the assessment of evidence in the summary judgment context are also well established. Courts must view the evidence in the light most favorable to the nonmoving party and must draw all reasonable inferences in the nonmoving party's favor. See Robinson v. Omer, 952 S.W.2d [423 (Tenn. 1997)] at 426, Byrd
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