COLETTE M TOPOREK V K P ANANDAKRISHNAN MD
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STATE OF MICHIGAN
COURT OF APPEALS
COLETTE M. TOPOREK,
UNPUBLISHED
April 11, 2000
Plaintiff-Appellant,
v
No. 210751
Wayne Circuit Court
LC No. 97-710754-NO
K. P. ANANDAKRISHNAN, M.D., and K. P.
ANANDAKRISHNAN, M.D., PC,
Defendants-Appellees.
Before: Smolenski, P.J., and Whitbeck and Zahra, JJ.
PER CURIAM.
Plaintiff appeals as of right from the trial court order that granted summary disposition to
defendants pursuant to MCR 2.116(C)(10). Plaintiff had filed a claim against defendant, her former
physician, for alleged battery and intentional infliction of emotional distress.1 We affirm.
Plaintiff sought treatment from defendant physician for a thyroid problem. Defendant examined
plaintiff several times between June 1996 and January 1997. Plaintiff stated that during various visits
defendant pulled up her shirt and bra to listen to her heart with a stethoscope, unfastened her pants to
examine her lower abdomen, brushed against her knee with his groin area while examining her, and did
not leave the room while she was straightening her clothes. The trial court granted defendant’s motion
for summary disposition over plaintiff’s counsel’s arguments that the defendant acted to achieve sexual
arousal. In granting summary disposition, the trial court referred to plaintiff’s deposition testimony and
held that her description of the facts could not be developed to produce a genuine material issue.
This Court reviews motions for summary disposition de novo. Spiek v Dep’t of
Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion brought pursuant to MCR
2.116(C)(10) tests the “factual sufficiency of the complaint.” Maiden v Rozwood, 461 Mich 109, 119;
597 NW2d 817 (1999).
In evaluating a motion for summary disposition brought under this subsection, a trial
court considers affidavits, pleadings, depositions, admissions, and other evidence
submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party
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opposing the motion. Where the proffered evidence fails to establish a genuine issue
regarding any material fact, the moving party is entitled to judgment as a matter of law.
MCR 2.116(C)(10), (G)(4). Quinto v Cross & Peters Co, 451 Mich 358; 547
NW2d 314 (1996). [Id. at 119-120.]
In her first two issues on appeal, plaintiff contends that genuine issues of material fact exist
regarding whether defendant touched plaintiff for sexual gratification and whether plaintiff impliedly
consented to being touched by defendant on the breasts, pubic area and knees. We will address these
issues together, because both issues relate to the question of whether a battery occurred. The tort of
battery by a treating physician is somewhat unique among other battery claims.
Michigan recognizes and adheres to the common-law right to be free from
nonconsensual physical invasions and the corollary doctrine of informed consent.
Accordingly, if a physician treats or operates on a patient without consent, the physician
has committed a battery and may be required to respond in damages. [In re
Rosenbush, 195 Mich App 675, 680; 491 NW2d 633 (1992).]
Likewise, there has been an assault and battery “if consent has been given but the scope of the
consent is exceeded. . . .” Banks v Wittenberg, 82 Mich App 274, 279-280; 266 NW2d 788
(1978). A patient’s consent to medical treatment may be express or implied. Werth v Taylor, 190
Mich App 141, 146; 475 NW2d 426 (1991). The term “implied consent” describes “the consent
inferred from the patient’s action of seeking treatment or some other act manifesting a willingness to
submit to a particular course of treatment.” Banks, supra at 280.
Here, the evidence established that plaintiff sought treatment from defendant and willingly
submitted to the examinations. From this conduct, we infer that plaintiff consented to be examined and
treated by defendant. Plaintiff has not shown that she revoked her consent or that the allegedly tortious
conduct exceeded the scope of her consent. Cf. In re Martin, 450 Mich 204, 216; 538 NW2d 399
(1995) (“a necessary corollary of the common-law right to informed consent is the right not to
consent”). Furthermore, the evidence presented by plaintiff does not indicate that defendant’s actions
were performed for any reason other than to facilitate a physical examination. While plaintiff contends
on appeal that defendant touched her for sexual arousal or gratification, plaintiff’s own deposition
testimony fails to support this contention. Because plaintiff consented to undergo the examinations and
did not revoke her consent, defendant’s actions cannot be considered a battery.
Next, plaintiff contends that a genuine issue of material fact existed with respect to her claim for
intentional infliction of emotional distress. The necessary elements of a claim for intentional infliction of
emotional distress are “(1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation,
and (4) severe emotional distress.” Teadt v Lutheran Missouri Synod, 237 Mich App 567, 582; 603
NW2d 816 (1999). Liability under this theory has been found “only where the conduct complained of
has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency and to be regarded as atrocious and utterly intolerable in a civilized community.” Id. After
reviewing the record, we cannot conclude that
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defendant’s actions constitute the type of outrageous, extreme or atrocious conduct necessary to
support a claim for intentional infliction of emotional distress.
Affirmed.
/s/ Michael R. Smolenski
/s/ William C. Whitbeck
1
Although plaintiff named both her physician, K. P. Anandakrishnan, M. D., and the professional
corporation bearing the physician’s name as defendants, for purposes of this opinion we will refer to K.
P. Anandakrishnan, M. D., as “defendant.”
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