                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  May 11, 2011 Session

           DORIS HINKLE, ET AL. v. KINDRED HOSPITAL, ET AL.

                  Appeal from the Circuit Court for Davidson County
                    No. 10C2397      Thomas W. Brothers, Judge


                No. M2010-02499-COA-R3-CV - Filed August 31, 2012



RICHARD H. DINKINS, J., concurring in part and dissenting in part.

      I concur with the majority’s decision in all respects, except the decision to affirm the
dismissal of the medical battery claim against Dr. Nguyen pursuant to Tenn. R. Civ. P.
12.02(6).

       It is well settled that a Rule 12.02(6) motion challenges only the legal sufficiency of
the complaint, not the strength of the plaintiff’s proof or evidence. Highwoods Props., Inc.
v. City of Memphis, 297 S.W.3d 695, 700 (Tenn. 2009); Willis v. Tenn. Dep’t of Corr., 113
S.W.3d 706, 710 (Tenn. 2003); Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen &
Ginsburg, P.A., 986 S.W.2d 550, 554 (Tenn. 1999); Sanders v. Vinson, 558 S.W.2d 838,
840 (Tenn. 1977). A defendant who files a motion to dismiss “‘admits the truth of all of the
relevant and material allegations contained in the complaint, but . . . asserts that the
allegations fail to establish a cause of action.’” Brown v. Tenn. Title Loans, Inc., 328 S.W.3d
850, 854 (Tenn. 2010) (quoting Freeman Indus., LLC v. Eastman Chem. Co., 172 S.W.3d
512, 516 (Tenn. 2005)); see Edwards v. Allen, 216 S.W.3d 278, 284 (Tenn. 2007); White
v. Revco Disc. Drug Ctrs., Inc. 33 S.W.3d 713, 718 (Tenn. 2000); Holloway v. Putnam
Cnty., 534 S.W.2d 292, 296 (Tenn. 1976). Against this standard, I believe the allegations
of the complaint are sufficient to allow the claim for medical battery against Dr. Nguyen to
proceed.

       Pertinent allegations of the complaint relative to this claim are as follows:

       5. That Muriel Jesse Hinkle, Deceased, (hereinafter Decedent), had a surgical
       procedure at Vanderbilt Medical Center for elective aneurysm repair, and
       cardiac bypass.

       6. That Decedent developed some complications after surgery, and was placed
       on a ventilator and tracheostomy at Vanderbilt Medical Center for about two
       weeks.
       7. That Decedent was later transferred to Kindred Hospital for rehabilitation
       and to wean him off the ventilator.
       8. That upon discharge from Vanderbilt Medical Center, Decedent had no
       rectal bleeding, laceration, or perforation of the rectal wall.
       9. That prior to arrival at Kindred Hospital on June 29, 2009, Decedent had
       a soft stool due to the laxative that was administered to him at Vanderbilt
       Medical Center prior to discharge and transfer to Kindred Hospital.
       10. That the Decedent’s soft stool was controlled with bed pads at Vanderbilt
       Medical Center.
       11. That the patient had stage three Sacral Decubitus ulcer on his buttocks,
       that was treated with antibiotic cream and scrotal skin tears.
       12. That upon arrival at Kindred Hospital, the treating physician, Dr. Tuan
       Quoc Nguyen, ordered a Clostridium Difficile exam on the Decedent due to
       the soft stool.
       13. That at no time did Dr. Nguyen ma[k]e contact with the Decedent upon
       admission on June 29, 2009, prior to ordering BMS tube on the Decedent.
       14. That prior to the result of the Clostridium Difficile from the lab at Kindred
       Hospital, Dr. Nguyen immediately ordered Bowel Management System
       (BMS) rectal tube, manufactured by Zassi Medical Evolutions, Inc., to be
       inserted on the Decedent’s rectum without ordering BMS tube pre assessment
       on the Decedent.

The allegations specific to the claim of medical battery are set out in Count Three of the
complaint:

       35. That at no time did the Decedent consent to be offensively and invasively,
       touched by the nursing staff on [his] anus.
       36. That the invasive procedure was not medically necessary.
       37. That the decedent’s spouse who had the power of attorney was not
       consulted prior to the offensive touching of the Decedent.
       38. That the offensive touching was effectuated despite the Decedent’s son’s
       presence at this bedside, and categorically warned the nursing staff that his
       father did not consent to be touched on his anus.
       39. That the act of performing [this] invasive medical procedure on the
       Decedent body against the Decedent’s will constituted battery.

        As noted by the majority, the performance of an unauthorized procedure constitutes
medical battery. Blanchard v. Kellum, 975 S.W.2d 522, 524 (Tenn. 1998). The court in
Blanchard set forth a “simple inquiry” 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 on a specified tooth
or that the doctor was going to perform surgery on the specified knee?); and, if so (2) did the


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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. On the present state of the record, the answer to each of these questions is no;
consequently, the complaint has stated a claim against Dr. Nguyen, the physician who
ordered the procedure, for medical battery.

        Requiring that the physician actually perform the procedure in order to state a claim
for medical battery is questionable where, as here, the hospital staff is alleged to have been
carrying out the doctor’s orders in performing the procedure constituting the alleged battery.
When issuing the orders, the doctor sets the treatment in motion and relies upon the staff to
carry it out. I see no reason to differentiate between the doctor giving the order and the staff
carrying it out. This is particularly true, given the close relationship between claims of lack
of informed consent to a particular procedure and medical battery. See Cary v. Arrowsmith,
777 S.W.2d 8, 21 (Tenn. Ct. App. 1989) (“If informed consent is not effectively obtained,
the defendant's departure from the standard care is not negligence but battery. . . .” (quoting
Cardwell v. Bechtol, 724 S.W.2d 739, 750 (Tenn. 1987)).

       As noted by the majority in affirming the dismissal of the lack of informed consent
claim against Kindred Hospital, the staff of the hospital has no duty to obtain informed
consent from the patient when conducting the procedure ordered by the doctor; since there
was no consent, however, the claim of medical battery proceeds against the hospital. At the
same time, the claim against Dr. Nguyen for failure to secure informed consent for the
procedure which he ordered continues, while the claim related to the unauthorized
performance of that procedure fails. Again, I see no reason to differentiate between the
responsibility of the doctor and the staff.

      For these reasons, I would reverse the dismissal of the medical battery claim against
Dr. Nguyen as well.




                                            _______________________________________
                                            RICHARD H. DINKINS, JUDGE




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