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Medical Malpractice and Medical Battery Are Different Things, Duh

By William Peacock, Esq. | Last updated on

Battery is an intentional tort.

Malpractice is negligence-based tort.

One requires intent. The other is failing to meet the reasonable standard of care. Any 1L could tell you this. Why is this case in the Sixth Circuit Court of Appeals then?

Allergic? Inject Her Anyway

The decedent, Pauline Shuler, was allergic to Heparin (an anticoagulant). She wore a medical bracelet listing the allergy. Her charts listed the allergy. Everyone knew about the allergy.

According to Shuler's family, she was injected with Heparin multiple times, including an injection shortly before her death. They argue that the injection "proximately caused" her death.

Battery or Negligence?

Medical malpractice carries heightened pleading requirements in Tennessee, requirements which presumably would've been difficult to meet here, as the family chose to allege medical battery.

The district court held that the injections were not "procedures" or "treatments" for purposes of medical battery, yet were "therapeutic treatment[s]," a distinction which somehow places outside of the battery scope. Also, under Cary v. Arrowsmith, the injections were "component part[s] of [Pauline's] treatment process" which did not need specific consent. No consent needed means no battery occurred.

A Simple Inquiry for Medical Battery

In Blanchard v. Kellum, the Tennessee Supreme Court described a "simple inquiry ... to determine whether a case constitutes a medical battery:"

1. "[W]as the patient aware that the doctor was going to perform the procedure [...] and, if so"

2. "[D]id the patient authorize performance of the procedure?"

The answers must both be negative.

Was This a Procedure?

It seems like a stupid question. Actually, it is, since the Tennessee Court of Appeals recently held that a medical battery claim could proceed based on an injection of a refused drug.

Though some states have narrowed medical battery to certain procedures, Tennessee, like most states, hasn't explicitly done so.

What About Authorization?

The district court, and the defendants here, misread Cary, which held that informed consent only requires consent for the "treatment of the patient" and not for "each component part of the treatment process." Otherwise, malpractice serves as an adequate remedy.

Except, this isn't an informed consent case. Pauline explicitly refused the drugs. As the court notes, "It is blackletter law that 'a plaintiff who gives consent may terminate or revoke it at any time by communicating the revocation to those who may act upon the consent.'" (quoting Dobbs' Law of Torts § 108 (2d ed. 2011))

An intentional touching (injecting of drugs) without consent? Sounds like ... battery.

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