The Special Case of “Medical Battery”

February 21, 2014

Shuler v. Garrett— F.3d —, 2014 WL 563272 (6th Cir. 2014)

Under Tennessee law, a patient suing her doctor for medical malpractice or informed-consent violation must satisfy a heightened pleading requirement: her complaint must provide a detailed factual account of the alleged wrongdoing. Moreover, the patient’s malpractice allegations must be supported by an affidavit from a qualified expert witness.

The United States Court of Appeals for the Sixth Circuit recently decided that a patient’s suit need not satisfy these requirements when it sounds in “medical battery”: a procedure or treatment carried out against the patient’s will. The Court explained that Tennessee law separates medical battery from a lack of informed consent to the treatment. In an informed consent case, “the threshold question …. is whether the patient’s lack of information negated her consent.” In a medical battery case, on the other hand, “the question is much simpler: Did the patient consent at all?”

The Court also distinguished medical battery from medical malpractice. Under this distinction, a medically proper treatment, far removed from the “malpractice” definition, still constitutes battery when the patient gives no consent to that treatment.

In the case at bar, medical staff injected the patient with heparin in violation of “her specific directive not to give her heparin of any kind.” The plaintiffs claimed that this injection constituted medical battery and that the patient’s allergic reaction to heparin resulted in her death. Based on the above-mentioned distinctions, the Sixth Circuit held that, under Tennessee law, “administration of drugs over the patient’s objections or despite the patient’s contrary instruction is a medical battery.”  (Incidentally, Arizona has the same law: Duncan v. Scottsdale Med. Imaging, 70 P.3d 435, 441 (Ariz. 2003)). Consequently, the plaintiff’s suit need not satisfy the heightened pleading and expert affidavit requirements.

Ironically, this exemption may be of no consequence for diversity and other suits filed in federal courts. Those suits must satisfy the heightened “plausibility” standard set by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). To satisfy this standard in a medical injury case, the plaintiff would usually have to provide a detailed account of the alleged wrongdoing and support this account by expert testimony.

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