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Smith v. Portera5/27/2005
v. Hall, 847 S.W.2d [208 (Tenn. 1997] at 210-211. Courts should grant a summary judgment only when both the facts and the inferences to be drawn from the facts permit a reasonable person to reach only one conclusion. See McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).
Because a trial court's decision to grant a motion for summary judgment is solely a matter of law, it is not entitled to a presumption of correctness. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995). In determining whether such a decision is correct, we must review the record to determine if the requirements of Rule 56.04 of the Tennessee Rules of Civil Procedure have been satisfied in that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
At the outset, we are compelled to express our disagreement with the trial court's determination that this is a cause of action for medical malpractice rather than medical battery. In this regard, the trial court stated as follows at the hearing on October 18, 2004:
I think it is medical malpractice. If [Dr. Portera] used bad judgment in doing the wrong thing, I'm telling you, for the record, I think it's medical malpractice, because, if he did something he's not supposed to do, that's medical malpractice.
In Blanchard v. Kellum, D.D.S., 975 S.W.2d 522, 524 (Tenn. 1998), the Tennessee Supreme Court stated as follows with respect to a cause of action for medical battery:
Performance of an unauthorized procedure constitutes a medical battery. 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 (i.e., did the patient know that the dentist was going to perform a root canal or that the doctor was going to perform surgery on the specified knee?); 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.
Similarly, this Court stated as follows in Church v. Perales, 39 S.W.3d 149, 159 (Tenn. Ct. App. 2000):
A medical battery occurs when a physician performs an unauthorized procedure. Typically, a medical battery involves a physician performing a procedure that the patient did not know the physician was going to perform or a physician performing a procedure on a part of the body other than the one described to the patient.
Our review of the record convinces us that Ms. Smith's suit is for medical battery. Her complaint specifically states that she is suing Dr. Portera for medical battery and the allegation in the complaint that Dr. Portera excised the lesion or ulceration "without her consent or even knowledge only after she was awakened from general anesthesia" supports a claim for medical battery in accordance with our statement in Perales that "a medical battery occurs when a physician performs an unauthorized procedure." We also note that on May 21, 2004, an agreed order was entered by the trial court which decrees that "the instant action against the defendant, Charles A. Portera, M.D., solely alleges medical battery" and Dr. Portera admitted both in his brief and at the hearing on October 18, 2004, that this is a medical battery case. The trial court's determination that Ms. Smith's suit is for medical malpractice, rather than medical battery, is erroneous.
Having concluded that Ms. Smith has presented a cause of action for medical battery, we must now determine whether a genuine issue of material fact exists which would preclude summary judgment in this matter
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