                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 14a0033p.06

                 UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                 X
                                                  -
 ROBERT L. SHULER, and PAULINE SHULER
                                                  -
 LEWIS, natural children and heirs at law of
 decedent Pauline Sloan Shuler; THE ESTATE        -
                                                  -
                                                                  No. 12-6270
 OF PAULINE SLOAN SHULER,
                          Plaintiffs-Appellants, ,>
                                                  -
                                                  -
                                                  -
           v.
                                                  -
                                                  -
 PROCTOR, M.D.; CARDIOVASCULAR SURGERY -
 H. EDWARD GARRETT, JR., M.D.; EVA G.

                                                  -
                                                  -
 CLINIC, PLLC; STERN OWNERSHIP GROUP
                                                  -
 LLC, dba The Stern Cardiovascular Center;
 BAPTIST MEMORIAL HEALTH CARE                     -
                                                  -
                                                  -
 CORPORATION, dba Baptist Memorial
                                                  -
 Hospital-Memphis; FRANK A. MCGREW,
                                                  -
 M.D.,
                        Defendants-Appellees. N
                      Appeal from the United States District Court
                   for the Western District of Tennessee at Memphis.
                No. 2:12-cv-02003—S. Thomas Anderson, District Judge.
                                   Argued: December 4, 2013
                           Decided and Filed: February 14, 2014
        Before: COOK and STRANCH, Circuit Judges; CARR, District Judge.*

                                       _________________

                                            COUNSEL
ARGUED: Rachael E. Putnam, PUTNAM FIRM PLC, Memphis, Tennessee, for
Appellants. Buckner Wellford, Memphis, Tennessee, for Appellees. ON BRIEF:
Rachael E. Putnam, Austin T. Rainey, PUTNAM FIRM PLC, Memphis, Tennessee, for
Appellants. Buckner Wellford, Shannon Wiley, Memphis, Tennessee, William H.
Haltom, Jr., Claire M. Cissell, Memphis, Tennessee, William W. Dunlap, Jr., Tabitha F.
McNabb, Laura S. Martin, Memphis, Tennessee, for Appellees.


         *
           The Honorable James G. Carr, Senior United States District Judge for the Northern District of
Ohio, sitting by designation.


                                                   1
No. 12-6270            Shuler, et al.v. Garrett, et al.                                           Page 2


                                        _________________

                                              OPINION
                                        _________________

         STRANCH, Circuit Judge. Pauline Sloan Shuler died in the Intensive Care Unit
of Baptist Memorial Hospital-Memphis on June 23, 2011. Her heirs sued her doctors,
the hospital, and the clinic where she had been receiving treatment, alleging Shuler had
died from an allergic reaction to heparin (an anticoagulant) injections that had been
administered despite her objections. The Shulers claimed negligence and medical
battery. The district court, construing their complaint to sound only in medical
malpractice, dismissed the case for failure to comply with the notice and heightened
pleading requirements of the Tennessee Medical Malpractice Act (TMMA). But the
plaintiffs plausibly alleged medical battery, which is not subject to the TMMA, and we
therefore REVERSE the district court’s dismissal of that portion of the complaint.

                      I. FACTUAL AND LEGAL BACKGROUND

         The amended complaint1 filed by the Shulers on January 3, 2012 and titled
simply “Complaint,” alleged the following facts relevant to this appeal: Pauline and her
doctors were aware of Pauline’s heparin allergy; Pauline wore a medical bracelet listing
her heparin allergy and her medical records also noted the allergy; on a number of
occasions, medical staff injected Pauline with heparin “in direct contradiction to her
specific directive not to give her heparin of any kind”; medical staff injected her with
heparin shortly before her death; and the heparin injections proximately caused her
death.

         In its order granting the defendants’ motion to dismiss, the district court
concluded that the facts alleged did not present a claim for medical battery under
Tennessee law. It held that the heparin injections were not “procedures” or “treatments”
for the purposes of medical battery; rather, the injections were “therapeutic drug

         1
          The Shulers’ appellate brief cited to a different “amended complaint” that they attached to their
motion to alter or amend the judgment. As the defendants argue, this document may not be considered
because it was not properly filed. It is therefore not before this court.
No. 12-6270         Shuler, et al.v. Garrett, et al.                                 Page 3


treatment[s]” which, citing Cary v. Arrowsmith, 777 S.W.2d 8 (Tenn. Ct. App. 1989),
could form the basis for medical malpractice but not medical battery. Again citing Cary,
the court found that the injections were only “component part[s] of [Pauline’s] treatment
process” that the defendants did not need her specific consent to administer, thus also
vitiating the medical battery claim.

        The Shulers moved to alter or amend the judgment pursuant to Rule 59 of the
Federal Rules of Civil Procedure. Their motion was denied. The Shulers then timely
appealed both the dismissal and the denial of their motion to alter or amend the
judgment.

        We review de novo a district court’s grant of a rule 12(b)(6) motion. Seaton v.
TripAdvisor LLC, 728 F.3d 592, 596 (6th Cir. 2013). “To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A denial of a motion to alter
or amend judgment is reviewed for abuse of discretion. GenCorp, Inc. v. Am. Int’l
Underwriters, 178 F.3d 804, 832 (6th Cir. 1999).

                                      II. ANALYSIS

A. Medical Battery

        “Performance of an unauthorized procedure constitutes a medical battery.”
Blanchard v. Kellum, 975 S.W.2d 522, 524 (Tenn. 1998). As the name suggests,
medical battery is an intentional tort—medical malpractice, in contrast, sounds in
negligence—and is a species of battery, “an unpermitted touching of the plaintiff by the
defendant or by some object set in motion by the defendant.” Cary, 777 S.W.2d at 21.
Medical battery is also distinct from, although closely related to, a tort arising from a
doctor’s failure to obtain informed consent. Blanchard, 975 S.W.2d at 524.; see also
Church v. Perales, 39 S.W.3d 149, 159 (Tenn. Ct. App. 2000) (“While these causes of
action share a common ancestry, the differences between them are more than
academic.”). Whereas the threshold question in an informed consent case is whether the
No. 12-6270        Shuler, et al.v. Garrett, et al.                                  Page 4


patient’s lack of information negated her consent, the question in a medical battery case
is much simpler: Did the patient consent at all? Blanchard, 975 S.W.2d at 524.

       As this case proceeds in federal court under diversity jurisdiction, we look to
Tennessee law to determine whether the case presents an issue of “informed consent,”
“medical battery,” or “medical malpractice.” See Allstate Ins. Co. v. Thrifty Rent-A-Car
Sys., Inc., 249 F.3d 450, 454 (6th Cir. 2001). We cannot import another state’s distinctly
different concept of one of these issues when applying Tennessee law. It does not matter
that in many states the tort of informed consent sounds in negligence, see, e.g., Franklin
v. United States, 992 F.2d 1492 (10th Cir. 1993), or that some states do not distinguish
between “informed consent” and “non-consent” (i.e., medical battery), see, e.g.,
Montgomery v. Bazaz-Sehgal, 798 A.2d 742, 744 (Pa. 2002). In Tennessee, informed
consent sounds in battery, Blanchard, 975 S.W.2d at 524; Cardwell v. Bechtel,
724 S.W.2d 739, 750 (Tenn. 1987), even though it is sometimes referred to as a type of
malpractice, Miller ex rel. Miller v. Dacus, 231 S.W.3d 903, 907 (Tenn. 2007). We
therefore focus on Tennessee caselaw regarding medical battery and informed consent,
though we may look to other jurisdictions if they employ similar distinctions. See
Combs v. Int’l Ins. Co., 354 F.3d 568, 577 (6th Cir. 2004).

       In Blanchard v. Kellum, the Tennessee Supreme Court announced a “simple
inquiry . . . to determine whether a case constitutes a medical battery.” 975 S.W.2d at
524. A court need only ask two questions:

       (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 on a specified tooth 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.

Id.; see also Ashe v. Radiation Oncology Assocs., 9 S.W.3d 119, 121 (Tenn. 1999)
(citing Blanchard, 975 S.W.2d at 524). The focus in this case is solely on the second
No. 12-6270        Shuler, et al.v. Garrett, et al.                                Page 5


question and its component parts: what qualifies as a “procedure” and what constitutes
“authorization.”

       1. “Procedure”

       Although the Tennessee Supreme Court has not specifically defined “procedure,”
the term is not especially mysterious. The Oxford English Dictionary offers the
relevant definition: “A surgical or (later) other therapeutic or diagnostic operation or
technique.”         Oxford       English         Dictionary      (3d     ed.     2007),
http://www.oed.com/view/Entry/151775?redirectedFrom=procedure. Tennessee caselaw
supports using this commonsense definition—its courts have found that a wide range of
medical procedures support a medical battery claim. See, e.g., Henry v. Scokin,
148 S.W.3d 352, 356–57 (Tenn. Ct. App. 2003) (use of a particular form of intubation
that   the    plaintiff   specifically     refused);   Hinkle    v.    Kindred    Hosp.,
No. M2010-02499-COA-R3-CV, 2012 WL 3799215, at *1, 17 (Tenn. Ct. App. Aug. 31,
2012) (post-operative insertion of a rectal tube despite plaintiff’s refusal); Tatman v.
Fort Sanders Reg'l Med. Ctr., No. E2000-02163-COA-R3-CV, 2001 WL 378688, at *1
(Tenn. Ct. App. Apr. 16, 2001) (unauthorized blood transfusion conducted after
authorized surgery). Indeed, one case is directly on point: in Abeyta v. HCA Health
Services of TN, Inc., the Tennessee Court of Appeals recently held that a plaintiff could
proceed on a medical battery theory premised on the injection of medication that she had
specifically refused to take. No. M2011-02254-COA-R3-CV, 2012 WL 5266321, at
*8–9 (Tenn. Ct. App. Oct. 24, 2012).

       Tennessee courts are not alone in recognizing the viability of such a cause of
action. Other state courts and federal courts sitting in diversity have also held that the
administration of drugs over the patient’s objections or despite the patient’s contrary
instruction is a medical battery. See, e.g., Duncan v. Scottsdale Med. Imaging, Ltd.,
70 P.3d 435, 441 (Ariz. 2003) (“Duncan’s evidence supports the claim for battery
because she alleges SMI and/or its agents administered fentanyl without consent.”);
Hester v. Brown, 512 F. Supp.2d 1228, 1233 (M.D. Ala. 2007) (IV treatment); Mink v.
Univ. of Chicago, 460 F. Supp. 713, 718 (N.D. Ill. 1978) (“We find the administration
No. 12-6270        Shuler, et al.v. Garrett, et al.                               Page 6


of a drug without the patient’s knowledge comports with the meaning of offensive
contact.”); Applegate v. Saint Francis Hosp., Inc., 112 P.3d 316, 319 (Okla. Civ. App.
2005) (stating that Duncan, 70 P.3d 435, and Mink, 460 F. Supp. 713, are “generally
consistent with Oklahoma precedent”).

       The defendants argue that Tennessee courts have narrowed the concept of
medical battery “to specific ‘procedures’ or stand-alone treatments which call for an
informed consent discussion.” This proposition is out of step with the caselaw. So too
is the district court’s conclusion that “therapeutic drug treatment” categorically cannot
give rise to a medical battery claim. These arguments rely on Cary v. Arrowsmith, a
1989 informed consent case, where the Tennessee Court of Appeals held that “a treating
physician must obtain the patient’s informed consent for the medical treatment of the
patient and not for each component part of the treatment process. The patient has an
adequate remedy, i.e., a malpractice action sounding in negligence, for the injurious
consequences of therapeutic drug treatment.” 777 S.W.2d at 20.

       Cary’s 1989 holding lacks both force and applicability to this case. In Mitchell
v. Ensor, the Tennessee Court of Appeals noted that “several cases in Tennessee
succeeding Cary have incorporated language suggesting that informed consent applies
to   both   operative    procedures      and    the   administration   of   medication.”
No. W2001-01683-COA-R3-CV, 2002 WL 31730908, at *9 (Tenn. Ct. App. Nov. 18,
2002) (collecting cases). Further, The Fifth Circuit, sitting in diversity and applying
Tennessee law, rejected Cary on the ground that the Tennessee Supreme Court “did not
limit its holding [in Ashe] to cases involving surgical procedures, as opposed to
therapeutic drug treatments, nor do we see reason to read a limitation into the Court’s
holding that is simply not there.” Huss v. Gayden, 571 F.3d 442, 461 (5th Cir. 2009)
(citing Ashe, 9 S.W.3d at 121). But the more important distinction is that Cary simply
does not apply here. The Shulers allege that the heparin injections were administered
despite Pauline’s explicit refusal. Cary is thus inapplicable because it is an informed
consent case; this is a medical battery case (a consent case rather than an informed
No. 12-6270         Shuler, et al.v. Garrett, et al.                                 Page 7


consent case). See id. (noting that Cary predated the Tennessee Supreme Court’s
“clarifi[cation] that informed consent cases and medical battery cases are not the same”).

        A few states have explicitly limited medical battery to a narrow subset of medical
procedures, see, e.g. Trogun v. Furchtman, 207 N.W.2d 297, 312–13 (Wis. 1973), but
Tennessee, like most states, has not. Given this silence, and given the Tennessee
Supreme Court’s instruction that a “simple inquiry” should suffice to determine whether
an action for medical battery will lie, we will not “read a limitation into [Tennessee’s
medical battery law] that is simply not there.” Huss, 571 F.3d at 461. Nor need we scry
the caselaw for a surgically precise definition of “procedure” that is simply not there.
Use of the commonplace definition is appropriate, in conjunction with the types of
contact that would support an ordinary battery claim under Tennessee law. Other courts
that classify medical battery as an intentional tort are in accord. See Hoofnel v. Segal,
199 S.W.3d 147, 150 (Ky. 2006) (“[M]edical battery is an intentional tort, and as such,
it contains all the essential elements of a common law claim of battery.”); King v. Dodge
Cnty. Hosp. Auth., 616 S.E.2d 835, 837 (Ga. Ct. App. 2005) (“A medical ‘touching’
without consent is like any other ‘touching’ without consent: it constitutes the intentional
tort of battery for which an action will lie.” (internal quotation marks and citation
omitted)). An injection, therefore, fits within the definition of a “procedure” and is a
species of “touching” or physical contact—a battery—and so provides sufficient factual
basis for that element of a medical battery claim.

        2. “Authorization”

        The defendants argue that a patient’s general authorization of an operation or
course of treatment translates into authorization for the component parts of that
procedure. But this general proposition, whether true or not, does not speak to the
question at issue: Whether a patient can somehow be considered to have authorized a
procedure that she specifically and explicitly refused. 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.” Dobbs’ Law of Torts § 108 (2d ed.
2011); see also Restatement (Second) of Torts § 892A(5). We cannot find, and the
No. 12-6270         Shuler, et al.v. Garrett, et al.                                 Page 8


defendants do not offer, any Tennessee caselaw that supports the proposition that, absent
exigency or incapacity, a prior general grant of consent could trump a subsequent,
explicit refusal to submit to the procedure at issue. Nor does the caselaw support the
proposition that a doctor can conduct a procedure on a patient who previously refused
it and has not subsequently consented. Such propositions conflict with “the right of
competent adult patients to accept or reject medical treatment.” Church, 39 S.W.3d at
158.

B. Application of Tennessee Law to the Shulers’ Complaint

        In the light of the foregoing legal principles, we conclude that the Shulers
adequately pled their medical battery claim. The heparin injections that allegedly killed
Pauline qualify as “procedures,” see, e.g., Abeyta, 2012 WL 5266321, at *8–9; to
conclude otherwise would require conjuring out of the medical battery caselaw a limiting
principle “that simply is not there.” Huss, 571 F.3d at 461. The complaint clearly
alleges that Pauline did not authorize the injections—indeed, it goes further, alleging that
Pauline actually refused the injections. The complaint, however, does not allege that
Pauline specifically refused the injections she received closer to her death, but her prior
refusals—and her known allergy to heparin—support a plausible inference that she did
not consent to (and indeed may have continued to refuse) the later injections. In sum,
the complaint makes out a case for nonconsensual contact (an injection) that violated
Pauline’s right to bodily integrity and that proximately caused her death—in short, a
battery.

        The defendants argue that because the “gravamen” of the complaint is “not
completely clear” the court should characterize the Shulers’ claim as malpractice rather
than medical battery. For support, they offer Estate of French v. Stratford House, where
the Tennessee Supreme Court noted that, in cases alleging ordinary negligence in a
medical context, the state court of appeals “appears to have increasingly applied the
TMMA to borderline claims by concluding that the gravamen of the complaint is
medical malpractice.” 333 S.W.3d 546, 557 (Tenn. 2011). The defendants invite us to
No. 12-6270          Shuler, et al.v. Garrett, et al.                                 Page 9


“extend this rationale” to “borderline” cases that could be considered either medical
battery or medical malpractice. We decline this invitation.

         First, this is not a “borderline” case; the Shulers’ complaint clearly states a claim
for medical battery. Second, the defendants have misread Estate of French. After noting
the recent trend of the court of appeals, the Tennessee Supreme Court stated that
“[n]evertheless, a single complaint may be founded upon both ordinary negligence
principles and the medical malpractice statute,” and held that the TMMA applies only
to medical malpractice claims. Id. at 557. The court then determined that negligence
claims bearing “a substantial relationship to the rendition of medical treatment by a
medical professional” fall under the TMMA. Id. Estate of French, then, comports with
the Tennessee Supreme Court’s longstanding conclusion that a plaintiff may claim both
medical battery and medical malpractice. See Cardwell, 724 S.W.2d at 751 (“[B]attery
and malpractice . . . are not ordinarily inconsistent, and no election of remedies is
generally required.”).

         The Tennessee Supreme Court, moreover, has never held that the heightened
pleading requirements of the TMMA apply to medical battery. Were we to adopt the
defendants’ logic, every medical battery claim would be subject to the TMMA because
the tort categorically—indeed, definitionally—“bear[s] a substantial relationship to the
rendition of medical treatment by a medical professional.” We can find no indication
that the Tennessee Supreme Court would take this drastic step and thus cannot perform
such alchemy ourselves. “Federal courts hearing diversity matters should be extremely
cautious about adopting substantive innovation in state law.” Combs, 354 F.3d at 578
(quoting Rhynes v. Branick Mfg. Corp., 629 F.2d 409, 410 (5th Cir. 1980)). We adhere
to existing Tennessee law and treat the medical battery claim pled by the Shulers as just
that—a medical battery claim—rather than transmuting it into a medical malpractice
claim.

         The portion of the district court’s order dismissing the Shulers’ medical battery
claim is REVERSED.
