ALICE SANDERS and JAMES                     )
SANDERS,                                    )
                                            )
       Plaintiffs/Appellants,               )
                                            )   Appeal No.
VS.                                         )   01-A-01-9707-CV-00357
                                            )
DR. ALVERNICA WHITFIELD and                 )   Davidson Circuit
UNITED NEIGHBORHOOD HEALTH                  )   No. 96C-1458
SERVICES, INC., a Tennessee                 )
Corporation,                                )

       Defendants/Appellees,
                                            )
                                            )                FILED
                                            )
CAYCE FAMILY HEALTH CENTER,                 )                December 19, 1997
INC.,                                       )
                                            )               Cecil W. Crowson
       Defendant.                           )              Appellate Court Clerk


                      COURT OF APPEALS OF TENNESSEE
                        MIDDLE SECTION AT NASHVILLE


APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE

THE HONORABLE BARBARA N. HAYNES, JUDGE




G. KLINE PRESTON, IV
Washington Square Two
222 Second Avenue North
Suite 416
Nashville, Tennessee 37201
       Attorney for Plaintiffs/Appellants

TRACY SHAW
HOWELL & FISHER
Court Square Building
300 James Robertson Parkway
Nashville, Tennessee 37201-1107
      Attorney for Defendants/Appellees



                            AFFIRMED AND REMANDED



                                                BEN H. CANTRELL, JUDGE

CONCUR:
TODD, P.J., M.S.
KOCH, J.

                                 OPINION
              The plaintiff brought an action against the defendant dentist which

alleged that the defendant had failed to obtain her informed consent before attempting

a root canal. The question on appeal is whether the plaintiff may proceed without

expert testimony that the defendant deviated from the standard of care. The Circuit

Court of Davidson County granted summary judgment to the defendant. We affirm.



                                           I.



              In March of 1995 the plaintiff, Alice Sanders, consulted the defendant,

a dentist at United Neighborhood Health Services, Inc., about the severe pain the

plaintiff was experiencing in one of her teeth.        The defendant conducted an

examination and diagnosed the plaintiff’s problem as a periapical abscess, which

would require root canal therapy. On April 18, 1995 the plaintiff returned for the

suggested treatment, but during the course of the procedure, the defendant

discovered that she could not perform root canal surgery because the canal was

calcified. The plaintiff alleges that she subsequently lost the tooth and endured

excruciating pain.



              The plaintiff sued the defendant and the defendant’s employers alleging

various causes of action. The complaint, however, was subsequently amended to

restrict the claims to the following:



                     8.    That prior to attempting to perform the root
              canal, Defendant Dr. Alvernica Whitfield failed to obtain
              the informed consent of Plaintiff Alice Sanders.

                     9.     Plaintiff avers that Defendant Whitfield did
              not advise Plaintiff Sanders as to the potential risks of
              performing a root canal and, therefore, did not adequately
              inform Mrs. Sanders in obtaining her consent in
              accordance with the recognized standard of acceptable
              professional practice in the profession and in the specialty
              that the Defendant practices in the community.

                                    *     *       *


                                         -2-
                      13.    Plaintiff avers that Defendant’s failure to
              obtain her effective informed consent resulted in a battery
              to her.



              The defendant moved for summary judgment and filed her own affidavit

in which she said that she complied with the standard of care in Davidson County and

that she explained to the plaintiff in detail the procedure, the risks, and the potential

complications of the root canal treatment.



              The plaintiff opposed the motion for summary judgment with her own

affidavit in which she said the defendant did not explain to her any risks or

complications of the procedure.



              The trial court granted the motion for summary judgment.



                                           II.



              The plaintiff asserts that expert medical proof is not required to establish

a cause of action against the defendant (1) because the malpractice lies within the

common knowledge of laymen, Runnels v. Rogers, 596 S.W.2d 87 (Tenn. 1980), or

(2) because the cause of action is for a battery and not for malpractice, Cardwell v.

Bechtol, 724 S.W.2d 739 (Tenn. 1987).



              We think the first contention fails because we do not think that the

common knowledge of laymen includes knowledge of what specific information or

warnings should be given to a person about to undergo root canal therapy. In

addition, the medical malpractice act includes the following:



                     In a malpractice action, the plaintiff shall prove by
              evidence as required by § 29-26-115(b) that the
              defendant did not supply appropriate information to the
              patient in obtaining his informed consent (to the

                                          -3-
              procedure out of which plaintiff’s claim allegedly arose) in
              accordance with the recognized standard of acceptable
              professional practice in the profession and in the
              specialty, if any, that the defendant practices in the
              community in which he practices and in similar
              communities.

Tenn. Code Ann. § 29-26-118.



              In German v. Nichopoulos, 577 S.W.2d 197 (Tenn. App. 1978), the court

held that this section required expert proof of the usual and customary advice given

to patients to procure consent in similar situations. The plaintiff argues that this case

is different from German v. Nichopoulos because she asserted in her affidavit that the

defendant did not give her any advice before beginning the procedure. But we think

the case is exactly like German v. Nichopoulos where the court said:



              Counsel insists that simply because plaintiff testified that
              no one told her of any possible risks prior to receiving the
              injection, a prima facie case based on lack of informed
              consent was made out. We disagree and hold, as did the
              Middle Section of this Court in an unreported case, that,
              in matters of informed consent the plaintiff has the burden
              of proving by expert medical evidence, (a) what a
              reasonable medical practitioner of the same or similar
              communities under the same or similar circumstances
              would have disclosed to the patient about attendant risks
              incident to a proposed diagnosis or treatment and (b) that
              the defendant departed from the norm.

577 S.W.2d at 204. Therefore, if the claim is based on medical malpractice it fails for

a lack of proof on the standard of care.



              If the claim is for battery, it seems that we come out at the same place.

Treating a patient without giving the patient adequate information to make an informed

decision to submit to treatment amounts to a battery. Cardwell v. Bechtol, 724

S.W.2d 739 (Tenn. 1987). But, Tenn. Code Ann. § 29-26-118 “explicitly requires as

part of the plaintiff’s burden or proof that the standard of care for obtaining informed

consent must be shown by expert evidence . . . .” Id. at 750. “Whether the defendant

failed to obtain informed consent is dependent upon the standard of care of the


                                           -4-
profession or specialty . . . .” Id. Therefore, we think the plaintiff’s cause of action for

battery also fails for a lack of expert proof.



              The judgment of the trial court is affirmed and the cause is remanded

to the Circuit Court of Davidson County for any further proceedings necessary. Tax

the costs on appeal to the appellants.




                                                    _____________________________
                                                    BEN H. CANTRELL, JUDGE


CONCUR:




_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION




_______________________________
WILLIAM C. KOCH, JR., JUDGE




                                           -5-
                    IN THE COURT OF APPEALS OF TENNESSEE
                         MIDDLE SECTION AT NASHVILLE



ALICE SANDERS and JAMES                    )
SANDERS,                                   )
                                           )
       Plaintiffs/Appellants,              )
                                           )      Appeal No.
VS.                                        )      01-A-01-9707-CV-00357
                                           )
DR. ALVERNICA WHITFIELD and                )      Davidson Circuit
UNITED NEIGHBORHOOD HEALTH                 )      No. 96C-1458
SERVICES, INC., a Tennessee                )
Corporation,                               )
                                           )
       Defendants/Appellees,               )
                                           )
CAYCE FAMILY HEALTH CENTER,                )      Affirmed and
INC.,                                      )      Remanded
                                           )
       Defendant.                          )

                                 JUDGMENT

              This cause came on to be heard upon the record on appeal from the

Circuit Court of Davidson County, briefs and argument of counsel; upon consideration

whereof, this Court is of the opinion that in the judgment of the trial court there is no

reversible error.

              In accordance with the opinion of the Court filed herein, it is, therefore,

ordered and adjudged by this Court that the judgment of the trial court is affirmed.

The cause is remanded to the Circuit Court of Davidson County for the execution of

the judgment and for the collection of the costs accrued below.

              Costs of this appeal are taxed against Alice and James Sanders,

Principals, and Kline Preston, Surety, for which execution may issue if necessary.

              ENTER _______________________.



                                           _________________________________
                                           HENRY F. TODD, PRESIDING JUDGE
                                           MIDDLE SECTION


                                           _________________________________
                                           BEN H. CANTRELL, JUDGE


                                           _________________________________
                                           WILLIAM C. KOCH, JR., JUDGE
