                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                             NOVEMBER 17, 2010 Session

 MARK W. URLAUB, as next of kin and Executor of the Estate of BERTHA
  WORLEY URLAUB v. SELECT SPECIALTY HOSPITAL-MEMPHIS,
                           INC., ET AL.

               Direct Appeal from the Circuit Court for Shelby County
                  No. CT-0001821-08      Robert L. Childers, Judge


               No. W2010-00732-COA-R3-CV - Filed January 20, 2011


Plaintiff filed this medical battery suit on behalf of his deceased mother and named as
defendants the nephrologist who ordered an allegedly unauthorized hemodialysis procedure,
another treating physician, and the hospital where she was treated. The trial court granted
summary judgment to the treating physician who did not order the procedure and to the
hospital. Plaintiff appeals. We find that both of these defendants were entitled to summary
judgment and therefore affirm the trial court’s decision.


  Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and J. S TEVEN S TAFFORD, J., joined.

Mark W. Urlaub, Prince Frederick Maryland, pro se

James L. Kirby, Jeffrey L. Griffin, Memphis, Tennessee, for the appellee, Select Specialty
Hospital-Memphis, Inc.

Michael G. McLaren, William E. Cochran, Jr., Memphis, TN, for the appellee, Louis V.
Eberle, III, M.D.
                                                OPINION

                               I.   F ACTS & P ROCEDURAL H ISTORY1

       On April 13, 2007, Bertha Urlaub was admitted to Select Specialty Hospital
(“Hospital”), in Memphis, under the care of her physician, Louis V. Eberle, III, M.D. (“Dr.
Eberle”). Mrs. Urlaub, who was in her seventies, had previously suffered a brain injury after
undergoing an operation at another hospital, and she was ventilator-dependent, comatose, and
unresponsive. Dr. Eberle specialized in the area of internal medicine. During his care of
Mrs. Urlaub, Dr. Eberle requested numerous consults in the areas of nephrology,
gastroenterology, endocrinology, diabetes, neurology, infectious disease, surgery, and
cardiology. He requested a nephrology consult due in part to Mrs. Urlaub’s decreased urine
output. A nephrology consult was performed on May 1, 2007, and the nephrologist’s
impression was acute renal failure, among other things. Hemodialysis was recommended to
treat Mrs. Urlaub’s renal failure.

        On May 5, 2007, another nephrologist, Mark Shermer, M.D. (“Dr. Shermer”) had a
telephone conversation with Mrs. Urlaub’s son, Mark Urlaub (“Plaintiff”), who lived in
Maryland and held power of attorney over Mrs. Urlaub’s affairs. Dr. Shermer suggested to
Plaintiff that Mrs. Urlaub needed to undergo hemodialysis treatments in order to reduce her
swelling and fluid buildup due to her decreased urine output. Dr. Shermer explained the
benefits, risks, and potential complications of hemodialysis treatment. Plaintiff then
consented to his mother’s receipt of hemodialysis treatment under certain conditions,
including that such treatment was not to occur on consecutive days, and that his authorization
was necessary prior to each procedure.

       On May 9, Mrs. Urlaub completed a hemodialysis treatment with Plaintiff’s consent.
On or about May 10, Dr. Shermer and Plaintiff had another telephone conversation, during
which Dr. Shermer told Plaintiff that if hemodialysis treatments were not performed on
consecutive days for at least a few days, “we’re going to fall so far behind in the fluid
balance that everything is going to be futile.” Dr. Shermer also explained that he could not
effectively provide ongoing supportive care to try to sustain Mrs. Urlaub’s life unless
Plaintiff gave him some leeway to handle the hemodialysis treatments using his best


        1
          Because the order appealed was made final pursuant to Tennessee Rule of Civil Procedure 54.02,
other claims remain pending in the trial court. The facts set forth in this opinion are drawn from the limited
record we have before us on appeal. Our inclusion of any particular fact in this opinion should not be
construed as a conclusive finding of fact that would prevent the parties from presenting additional evidence
regarding the fact or prevent the trial court from making different findings of fact based on the evidence
presented by the parties.

                                                     -2-
judgment. According to Dr. Shermer, Plaintiff expressed that “he wanted everything done”
to try to save his mother’s life. Following this conversation, it was Dr. Shermer’s
understanding that it was “left to [Dr. Shermer’s] best judgment as to what [Mrs. Urlaub]
needed to give her the best chance to survive.” It was also Dr. Shermer’s impression that
Plaintiff understood that it was necessary to perform hemodialysis on consecutive days for
a few days.

        Mrs. Urlaub completed another hemodialysis treatment on May 11 with Plaintiff’s
consent. On May 12, Plaintiff learned from his sister that Mrs. Urlaub was scheduled to
undergo another hemodialysis treatment that evening. Plaintiff immediately called the
Hospital and spoke with a hospital staff member, and eventually, Plaintiff spoke with Dr.
Eberle. Dr. Eberle verified that Mrs. Urlaub was scheduled to undergo hemodialysis again
that evening as ordered by Dr. Shermer. According to Plaintiff, he was adamant in
instructing Dr. Eberle that Mrs. Urlaub was not to undergo the hemodialysis treatment. After
further discussion, the conversation allegedly “[went] downhill fast,” with Dr. Eberle stating,
“you’re not a doctor” and “if we don’t do this Dr. Shermer is just going to walk,” to which
Plaintiff responded, “I don’t give a [expletive] whether he walks or whether you like this or
not, I am directing you not to do this treatment.” According to Plaintiff, Dr. Eberle would
not give him Dr. Shermer’s telephone number but stated that he would relay Plaintiff’s
information to Dr. Shermer. Dr. Eberle then allegedly told Plaintiff to get his sister up to the
Hospital to witness the hemodialysis treatment.

        After his conversation with Dr. Eberle, Plaintiff called the Administrator of the
Hospital, David Key, who stated that he could not intervene in the situation. Plaintiff then
called his sister, and she went to the Hospital and witnessed the procedure. Approximately
one hour after the hemodialysis treatment was completed, Mrs. Urlaub suffered cardiac
arrest, and she died the next day.

        Plaintiff filed this lawsuit as next of kin and executor of the estate of Mrs. Urlaub,
alleging medical battery and medical negligence against numerous defendants, including Dr.
Shermer, Dr. Eberle, the Hospital, a nurse, and Bio-Medical Applications of Tennessee, Inc.,
which is an entity that allegedly owned and operated the hemodialysis unit. The complaint
stated,

       Defendant [Hospital] is being sued in its capacity as owner and operator of the
       hospital wherein the care and treatment of Plaintiff Bertha Urlaub was given;
       in its capacity as the principal and/or employer of Defendant Bio-Medical
       Applications of Tennessee, Inc.; and in its capacity as the direct or indirect
       principal and/or employer of Defendant Nurse Bobbie Hinds. Should facts
       other than those alleged herein become apparent during discovery, Defendant

                                              -3-
       [Hospital] should be on notice that it is also being sued as the principal and/or
       employer of any agents and/or employees who may be discovered to have
       cared for Plaintiff Bertha Urlaub negligently or without informed consent.

Plaintiff subsequently stipulated in an agreed order that Bio-Medical Applications of
Tennessee, Inc., and Nurse Hinds should be granted summary judgment, and it dismissed its
claims against those defendants with prejudice. In later consent orders, Plaintiff voluntarily
dismissed his claims of medical negligence against Hospital, Dr. Shermer, and Dr. Eberle,
with prejudice. However, his claims for medical battery against those three defendants
remained pending.

       Dr. Eberle filed a motion for summary judgment, contending that he did not commit
medical battery because he did not order, perform, or participate in the hemodialysis
treatment that Plaintiff alleged constituted medical battery. Numerous affidavits and
deposition excerpts were filed with the court. The trial court granted summary judgment to
Dr. Eberle because it found nothing to indicate that Dr. Eberle “ordered or participated in any
way” in the hemodialysis treatment. Instead, the court found, “[i]t was strictly on order of
Dr. Shermer and Dr. Shermer participated.” The trial court denied a motion for summary
judgment filed by Dr. Shermer, finding that questions of fact remained regarding his liability
for medical battery.

        Hospital had also filed a motion for summary judgment, in which it contended that
the Hospital had no duty to obtain consent for the hemodialysis procedure and therefore it
could not be liable for medical battery.2 In response, Plaintiff claimed that he was asserting
that the Hospital was vicariously liable for the actions of Dr. Shermer and Dr. Eberle. The
trial court granted Hospital’s motion for summary judgment upon finding that there was no
allegation in Plaintiff’s complaint that Dr. Shermer and Dr. Eberle were agents of Hospital.
In addition, the court found that Plaintiff had failed to establish that either Dr. Shermer or Dr.
Eberle acted as an agent of Hospital. The orders granting summary judgment to Dr. Eberle
and to Hospital were made final pursuant to Tennessee Rule of Civil Procedure 54.02, and
Plaintiff timely filed a notice of appeal.

                                       II.    I SSUES P RESENTED

       Plaintiff presents the following issues, as we perceive them, for review on appeal:

1.     Whether the trial court erred in granting summary judgment to Dr. Eberle on the claim
       for medical battery.

       2
           It alternatively argued that there was consent for the procedure.

                                                     -4-
2.     Whether the trial court erred in granting summary judgment to Hospital based upon
       its finding that Plaintiff did not allege or establish apparent agency.

For the following reasons, we affirm the decision of the circuit court.

                                III.   S TANDARD OF R EVIEW

         A motion for summary judgment should be granted only “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
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.” Tenn. R. Civ. P. 56.04. “The party seeking the summary
judgment has the burden of demonstrating that no genuine disputes of material fact exist and
that it is entitled to a judgment as a matter of law.” Green v. Green, 293 S.W.3d 493, 513
(Tenn. 2009) (citing Martin v. Norfolk S. Ry., 271 S.W.3d 76, 83 (Tenn. 2008); Amos v.
Metro. Gov't of Nashville & Davidson County, 259 S.W.3d 705, 710 (Tenn. 2008)). Thus,
“a properly supported motion for summary judgment must show that there are no genuine
issues of material fact and that the moving party is entitled to judgment as a matter of law.”
Martin, 271 S.W.3d at 83 (citing Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 88 (Tenn.
2000); McCarley v. W. Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998)). “The
moving party may make the required showing and therefore shift the burden of production
to the nonmoving party by either: (1) affirmatively negating an essential element of the
nonmoving party's claim; or (2) showing that the nonmoving party cannot prove an essential
element of the claim at trial.” Id. (citing Hannan v. Alltel Publ'g Co., 270 S.W.3d 1, 5 (Tenn.
2008)). “[T]o negate an essential element of the claim, the moving party must point to
evidence that tends to disprove an essential factual claim made by the nonmoving party.” Id.
at 84 (citing Blair v. W. Town Mall, 130 S.W.3d 761, 768 (Tenn. 2004)). “If the moving
party makes a properly supported motion, then the nonmoving party is required to produce
evidence of specific facts establishing that genuine issues of material fact exist.” Id. (citing
McCarley, 960 S.W.2d at 588; Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)).

       The resolution of a motion for summary judgment is a matter of law, which we review
de novo with no presumption of correctness. Id. However, “we are required to review the
evidence in the light most favorable to the nonmoving party and to draw all reasonable
inferences favoring the nonmoving party.” Id. (citing Staples, 15 S.W.3d at 89).




                                              -5-
                                          IV.     D ISCUSSION

                    A.    The Claim for Medical Battery against Dr. Eberle

       In his complaint, Plaintiff alleged that Mrs. Urlaub was given the May 12
hemodialysis treatment “on the orders of Defendant Mark Shermer, M.D. and Defendant
Louis Eberle, M.D.” but that “neither Defendant Mark Shermer, M.D. nor Defendant Louis
Eberle, M.D. were in attendance at the bedside” during the hemodialysis treatment. In
support of his motion for summary judgment on the medical battery claim, Dr. Eberle
submitted his own affidavit stating that he did not order the hemodialysis treatments that Mrs.
Urlaub received while at Hospital. Furthermore, he stated, he was not physically present and
did not otherwise participate in the treatments.

       Mr. Key, the Hospital Administrator, submitted an affidavit as well, in which he stated
that “Dr. Shermer maintained complete charge and control of the medical care and treatment
that he formulated for Ms. Urlaub including the writing of orders for treatment.”

         Dr. Shermer explained during his deposition that “the nephrologist has to give the
orders for [a hemodialysis procedure] and makes the decision about whether to do the
dialysis and then how it’s to be done.” He explained that a dialysis nurse “puts the patient
on the machine and monitors the patient during the time of the treatment and ultimately when
the treatment’s completed takes the patient off the dialysis.” Dr. Shermer testified that he
was the only person who had input into the decision of whether to perform Mrs. Urlaub’s
dialysis procedures on consecutive days and that he wrote the orders. Dr. Shermer testified
that if he had been told that Plaintiff wanted to speak with him, then he would have attempted
to call Plaintiff.3 Dr. Shermer said that if he had spoken with Plaintiff, and Plaintiff had
insisted that Mrs. Urlaub not undergo dialysis on consecutive days, he would have told him,
as he had just two days earlier, that it was necessary to do treatments on consecutive days or
else their efforts would have been futile. Dr. Shermer said he “might have had to sign-off
the case.”

       Plaintiff submitted an expert affidavit in support of his claims, in which Plaintiff’s
expert stated that “it was decided by the renal consultant, Dr. Mark Shermer, to ‘try
hemodialysis/ultrafiltration.’” The expert opined that, “[b]ased on the medical record, the
standard of care in this patient [sic] required that the renal consultant, Dr. Mark Shermer,
obtain a consent form from the patient’s power of attorney, Mark W. Urlaub, prior to each


        3
           Based on this statement, we infer that Dr. Shermer did not receive a message from Dr. Eberle. The
excerpts from Dr. Shermer’s deposition do not address this issue further, and neither does Dr. Eberle’s
affidavit.

                                                    -6-
hemodialysis session.” During Plaintiff’s deposition, he testified that when he had instructed
Dr. Shermer not to perform hemodialysis on consecutive days, those conversations were
solely between himself and Dr. Shermer, and no one else.

       Again, the trial court granted summary judgment to Dr. Eberle on the medical battery
claim after finding nothing to indicate that Dr. Eberle “ordered or participated in any way”
in the hemodialysis treatment. Instead, the court found, “[i]t was strictly on order of Dr.
Shermer and Dr. Shermer participated.”

        Depending on the circumstances, more than one cause of action may arise when a
physician performs a procedure without a patient’s consent. Church v. Perales, 39 S.W.3d
149, 159 (Tenn. Ct. App. 2000). “[I]f the patient did not know that the procedure was going
to be performed, or if the patient did not authorize the performance of the procedure, then
the claim is for medical battery.” Hensley v. Scokin, 148 S.W.3d 352, 356 (Tenn. Ct. App.
2003) (citing Blanchard v. Kellum, 975 S.W.2d 522, 524 (Tenn. 1998)). “If the patient knew
the procedure would be performed and authorized the procedure, but was not made aware
of the inherent risks of the procedure, then the claim is for lack of informed consent.” 4 Id.
(Blanchard, 975 S.W.2d at 524). In addition, our Supreme Court has stated that the theories
of battery and malpractice “are not ordinarily inconsistent, and no election of remedies is
generally required; if a battery exists, then malpractice may not necessarily be reached, but
if no battery can be shown, then the issue clearly emerges as one of malpractice.” Cardwell
v. Bechtol, 724 S.W.2d 739, 751 (Tenn. 1987). In other words, a physician’s activities can
be actionable in medical negligence apart from the issue of informed consent. See id.; D.
Scott Porch, IV, “Recent Developments in Tennessee’s Doctrine of Informed Consent,” 30
U. Mem. L. Rev. 593, 600 (2000).

       In Bryant v. HCA Health Services of N. Tennessee, Inc., 15 S.W.3d 804, 807 (Tenn.
2000), our Supreme Court addressed an issue regarding who can be liable for failure to
obtain informed consent, where plaintiffs alleged that a defendant hospital failed to obtain
a patient’s informed consent prior to a surgery performed at the hospital. The Court
recognized that a hospital usually provides a staffed facility in which a non-employee
physician performs the procedure but explained that the hospital “does not perform the


        4
          For a medical battery claim, the plaintiff is not required to provide expert medical testimony
because the patient’s knowledge and awareness is the focus. Hensley, 148 S.W.3d at 356. In informed
consent cases, expert evidence is required by statute. Blanchard, 975 S.W.2d at 524. However, even though
the informed consent provision is part of the medical malpractice statute, and determining whether the
defendant failed to obtain informed consent depends upon the standard of care of the profession or specialty,
when “informed consent is not effectively obtained, the defendant’s departure from the standard of care is
not negligence but battery.” Cardwell v. Bechtol, 724 S.W.2d 739, 750 (Tenn. 1987).

                                                    -7-
surgical procedure merely as a by-product of the non-employee physician’s use of the
hospital facilities.” Id. at 809-10. “Accordingly,” the Court concluded, “it is the
non-employee physician and not the hospital who commits the battery when a surgical
procedure is performed without legally effective consent.” Id. at 810. “Mere status as one
involved in [the] patient’s care [was] insufficient[.]” Id.

        We recognize that the Court in Bryant was analyzing an informed consent claim
rather than a medical battery claim. However, we believe that the Court’s reasoning is
persuasive when applied to a battery claim as well. In fact, the Court began its discussion
by noting that an informed consent claim is predicated upon a theory of battery. Id. at 808
(citing Blanchard, 975 S.W.2d at 524; Cardwell, 724 S.W.2d at 750 (holding that failure to
comply with standard of care when obtaining informed consent constitutes battery)).

        In the case before us, Dr. Eberle was involved in Mrs. Urlaub’s care, but it was not
Dr. Eberle who performed the allegedly unauthorized hemodialysis procedure. He was not
present for the procedure, nor did he participate in the procedure. Despite what Plaintiff
alleged in his complaint, Plaintiff concedes on appeal that the hemodialysis treatment in
question was ordered by Dr. Shermer, not Dr. Eberle. However, he argues that Dr. Eberle
committed medical battery “not by virtue of what is stated in the medical records exclusively,
but rather, primarily by virtue of his behavior during the acrimonious phone conversation he
had with [P]laintiff.” We reject Plaintiff’s assertion that the telephone conversation between
Plaintiff and Dr. Eberle is sufficient to demonstrate that Dr. Eberle had control over the
hemodialysis procedure ordered by Dr. Shermer in a manner that would give rise to liability
for medical battery. “A battery necessarily requires an unpermitted touching of the plaintiff
by the defendant or by some object set in motion by the defendant.” Cary v. Arrowsmith,
777 S.W.2d 8, 21 (Tenn. Ct. App. 1989) (involving an informed consent claim against a
doctor) (citing 6A C.J.S. Assault & Battery § 8(b) (1975)). Perhaps Dr. Eberle’s conduct
could form the basis of a claim for medical negligence or for some other tort, but we
conclude that his actions do not constitute medical battery. Thus, the trial court properly
granted Dr. Eberle’s motion for summary judgment on the medical battery claim.

                B.    The Claim against Hospital based on Vicarious Liability

       Plaintiff’s second argument on appeal is that the trial court erred in granting summary
judgment to the Hospital on the medical battery claim.5 According to Plaintiff’s brief on
appeal, “Plaintiff alleges vicarious liability on the part of [Hospital] due to the apparent
agency of defendant Eberle and a critical sequence of phone conversations that show


        5
          As previously discussed, Plaintiff had voluntarily dismissed, with prejudice, his claim against the
Hospital for medical negligence.

                                                    -8-
[P]laintiff’s sincere belief that defendant Eberle worked for [Hospital].” His brief attempts
to establish that Dr. Eberle acted as an apparent agent of the Hospital, but he does not address
Dr. Shermer or attempt to argue that the Hospital should be held vicariously liable for his
actions.6 Thus, we will only consider whether the Hospital could be held vicariously liable
for medical battery due to Dr. Eberle’s actions.

       The trial court found that Plaintiff’s complaint failed to allege that Dr. Eberle was an
agent of the Hospital, but it went on to find that summary judgment was also appropriate
because Plaintiff had failed to establish that Dr. Eberle was acting as an agent of the
Hospital. On appeal, the Hospital contends that summary judgment was proper on either of
the two grounds mentioned by the trial court. It further argues that summary judgment was
proper because the trial court had already granted summary judgment to Dr. Eberle, and the
Hospital “cannot be vicariously liable for the alleged conduct of an agent who has been
exonerated by an adjudication of non-liability.”

     Nearly one hundred years ago, our Supreme Court adopted the following rule in D.B.
Loveman Co. v. Bayless, 128 Tenn. 307, 160 S.W. 841 (1913):

        When the [principal] is sued solely for misfeasance, or nonfeasance, on the
        part of his [agents], being liable for their conduct only under the doctrine of
        respondeat superior, a verdict, permitted to stand in favor of such [agents],
        either in an action where they are sued with the [principal], or in a prior action,
        entitles the [principal] to a discharge from such claimed liability.

See Abshure v. Methodist Healthcare-Memphis Hospitals, W2008-01486-SC-R11-CV,
2010 WL 4188221, at *7 (Tenn. Oct. 20, 2010). In other words, “‘[a] principal may not be
held vicariously liable under the doctrine of respondeat superior based upon the acts of its
agent . . . when the agent has been exonerated by an adjudication of non-liability.’” Id.
(quoting Johnson v. LeBonheur Children's Med. Ctr., 74 S.W.3d 338, 345 (Tenn. 2002)).
Thus, where an injured party sues the actual wrongdoer, or agent, and loses the action on a
merits determination, the judgment precludes the injured party from suing the merely
vicariously responsible party, as its liability is purely derivative. Id. (citing 1 Lawrence A.
Pivnick, Tennessee Circuit Court Practice § 5:16, at 537 (2010)).



        6
            The appellate brief filed by Hospital pointed out that Plaintiff’s brief had only raised an issue
regarding the Hospital’s purported vicarious liability for the conduct of Dr. Eberle. The Hospital’s brief
stated that Plaintiff had apparently conceded that Dr. Shermer, Biomedical Applications of Tennessee, Inc.,
and Nurse Hinds were not acting as agents of the Hospital. Plaintiff did not dispute this characterization of
his claim in his reply brief.

                                                    -9-
        Here, Plaintiff argued that the Hospital could be held vicariously liable for medical
battery because Dr. Eberle was an apparent agent of the Hospital. Because we have found
that the trial court properly granted summary judgment to Dr. Eberle on Plaintiff’s medical
battery claim, we likewise conclude that the Hospital was entitled to summary judgment, as
the judgment in favor of Dr. Eberle precludes Plaintiff’s vicarious liability claim against the
Hospital based solely on Dr. Eberle’s actions.

                                    V. C ONCLUSION
        For the aforementioned reasons, we affirm the decision of the circuit court and remand
for further proceedings. Costs of this appeal are taxed to the appellant, Mark Urlaub, for
which execution may issue if necessary.

                                                    _________________________________
                                                    ALAN E. HIGHERS, P.J., W.S.




                                             -10-
