Christman v. Davis
Annotate this Case
Christman v. Davis (2004-388); 179 Vt. 99; 889 A.2d 746
2005 VT 119
[Filed 21-Oct-2005]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
2005 VT 119
No. 2004-388
Paul Christman Supreme Court
On Appeal from
v. Chittenden Superior Court
Gordon H. Davis, DMD and April Term, 2005
Associates in Periodontics, PLC
Matthew I. Katz, J.
Craig Weatherly of Gravel and Shea, Burlington, for Plaintiff-Appellant.
Ritchie E. Berger of Dinse, Knapp & McAndrew, P.C., Burlington, for
Defendants-Appellees.
PRESENT: Reiber, C.J., Dooley, Johnson and Skoglund, JJ., and
Crawford, Supr. J., Specially Assigned
¶ 1. DOOLEY, J. Plaintiff Paul Christman appeals a superior court
order granting defendants summary judgment on his claim of medical battery.
Plaintiff claims (1) that material facts are disputed, and therefore
summary judgment was inappropriate; and (2) that defendant periodontist
performed a surgical procedure for which plaintiff did not consent and
therefore defendant committed a battery. We affirm.
¶ 2. Plaintiff consulted defendant Gordon Davis, a periodontist,
(FN1) to treat his gum recession and root exposure. Defendant discussed
procedures to obtain root coverage including a tissue graft, and plaintiff
consented to this procedure. A tissue graft involves making vertical
incisions around the exposed root; the incision is made to free gingival
tissue and then donor tissue from the palate is grafted onto the root.
After administering a local anaesthetic, defendant began the procedure and
determined that instead he would perform a flap procedure. This procedure
follows the same preliminary step as the graft, but after incision, the
periodontist applies a protein, Emdogain, to the gum to help it adhere to
the tooth, and no graft is made. After surgery, plaintiff was surprised
that he did not receive a graft. He was upset to learn later that the
procedure did not achieve full results and that he would need to undergo a
tissue graft.
¶ 3. Plaintiff sued defendants for dental malpractice, lack of
informed consent, and battery. Plaintiff eventually dismissed the
malpractice and lack of informed consent claims, and proceeded solely on
the battery claim. Defendants filed for summary judgment, arguing that
common-law medical battery was preempted by Vermont's informed consent
statute, 12 V.S.A. § 1909, and plaintiff was not battered because the flap
procedure was within the bounds of plaintiff's consent. In opposition to
defendants' motion, plaintiff argued that the informed consent statute did
not preempt a common-law claim based on battery, and defendant's failure to
notify plaintiff in advance of the flap procedure, and obtain plaintiff's
specific authorization to conduct this particular procedure, constituted a
battery.
¶ 4. The trial court ruled that the common-law battery claim was
not preempted by statute because the statute was intended to define medical
torts based on negligence, and battery is an intentional tort. See Wilson
v. Smith, 144 Vt. 358, 361, 477 A.2d 964, 965 (1984) (holding that intent
is an element of civil battery). The court concluded, however, that
defendant performed surgery on an area of the body to which plaintiff
consented, and choosing to perform a less-invasive procedure did not
constitute battery.
¶ 5. On review of summary judgment, we apply the same standard as
the trial court and will affirm the grant of the motion if there are no
issues of material fact and the prevailing party is entitled to judgment as
a matter of law. V.R.C.P. 56(c)(3); O'Donnell v. Bank of Vt., 166 Vt. 221,
224, 692 A.2d 1212, 1214 (1997). "[T]he party opposing summary judgment is
entitled to the benefit of all reasonable doubts and inferences." Carr v.
Peerless Ins. Co., 168 Vt. 465, 476, 724 A.2d 454, 461 (1998).
¶ 6. Plaintiff bases his remaining claim in battery, which is an
intentional act that results in harmful contact with another. Restatement
(Second) of Torts § 13 (1965) [hereinafter Restatement]; Kent v. Katz, 146 F. Supp. 2d 450, 463 (D. Vt. 2001). In a medical context, a health care
provider commits battery if the provider performs a procedure for which the
patient has not given consent. Duncan v. Scottsdale Med. Imaging, Ltd., 70 P.3d 435, 438-39, ¶¶ 9-11 (Ariz. 2003). Generally, consent to particular
conduct, or "substantially the same conduct," bars recovery for a harmful
invasion. Restatement § 892A(2)(b); Godwin v. Danbury Eye Physicians &
Surgeons, P.C., 757 A.2d 516, 520 (Conn. 2000) (quoting Restatement §
892A(2)(b)). Plaintiff argues that he did not give consent to perform a
flap procedure and therefore defendant committed battery. Defendant
responds that plaintiff's claim is preempted by statute, and further that
defendant acted within the scope of plaintiff's consent.
¶ 7. At the outset, it is important to distinguish between cases
involving no consent and those involving a lack of informed consent.
Generally, battery occurs only when a physician performs an operation for
which there was no consent. If the patient does provide consent for the
procedure employed, but receives inadequate disclosures of the alternatives
and foreseeable risks and benefits of the alternatives, liability must be
based on lack of informed consent, and a claim of medical malpractice in
failing to provide the necessary disclosures. See Duncan, 70 P.3d at 439
(describing parameters of battery and informed consent); 12 V.S.A. §
1909(a)(1)-(2) (defining lack of informed consent). This difference,
however, can be "slippery." D. Dobbs, The Law of Torts § 103, at 243
(2001). The California Supreme Court explained the requirements of each
claim well in Cobbs v. Grant:
The battery theory should be reserved for those circumstances when
a doctor performs an operation to which the patient has not
consented. When the patient gives permission to perform one type
of treatment and the doctor performs another, the requisite
element of deliberate intent to deviate from the consent given is
present. However, when the patient consents to certain treatment
and the doctor performs that treatment but an undisclosed inherent
complication with a low probability occurs, no intentional
deviation from the consent given appears; rather, the doctor in
obtaining consent may have failed to meet his due care duty to
disclose pertinent information. In that situation the action
should be pleaded in negligence.
502 P.2d 1, 8 (Cal. 1972). This distinction is important for our
resolution of both defendant's preemption argument and plaintiff's argument
opposing summary judgment.
¶ 8. Defendant argues that we should not reach plaintiff's appeal
issue that summary judgment was improper on the facts of this case because
Vermont's informed consent statute, 12 V.S.A. § 1909, preempts plaintiff's
battery claim. The Legislature has enacted in Title 12, the title on court
procedure, two statutes governing medical malpractice actions. The first,
12 V.S.A. § 1908, defines "malpractice" as "professional medical
negligence," and requires a plaintiff to prove that the defendant failed to
exercise the degree of care of a reasonably skilled professional under the
same circumstances and that this failure caused injury that would not have
otherwise occurred. Id. § 1908(1)-(3). The second, § 1909, is entitled
"Limitation of medical malpractice action based on lack of informed
consent." It defines informed consent, outlines defenses to the claim,
and also places an affirmative burden on the plaintiff to establish this
claim through expert testimony. Id. § 1909. Defendant argues that "by
asserting an informed consent claim in the guise of a battery claim"
plaintiff has attempted "to avoid the clear and unambiguous intent of the
Legislature to replace the common law with a statutory framework."
¶ 9. The main difficulty with defendant's argument is that the
statutes regulate medical malpractice actions and they are defined in §
1908 as actions involving "negligence." Plaintiff complains of an
intentional tort, and not of negligence. Moreover, as we have explained
the difference above, plaintiff's claim is based on lack of consent and not
lack of informed consent.
¶ 10. In construing a statute, we presume the Legislature intended
the plain, ordinary meaning of the terms. Swett v. Haig's Inc., 164 Vt. 1,
5, 663 A.2d 930, 932 (1995). Further, we do not find a change in
common-law rules unless the intent to do so is "expressed in clear and
unambiguous language." Id. If anything, the wording of §§ 1908 and 1909
clearly and expressly states the Legislature had no intent to change the
availability or elements of a claim for common-law battery. (FN2)
¶ 11. That intent is reinforced by our analysis in the one decision
that discusses the doctrine of informed consent in medical malpractice
actions, Begin v. Richmond, 150 Vt. 517, 555 A.2d 363 (1988). We explained
in Begin that the informed consent doctrine was intended to expand "the
existing ways of showing medical malpractice in order to get around the
often insurmountable obstacle of producing expert testimony to show the
defendant was negligent." Id. at 522, 555 A.2d at 366. The statute in
turn was intended to "freeze" the development of the doctrine. Id. at 523,
555 A.2d at 367. We held, however, that the effect of the statute was not
to eliminate a traditional theory of liability. Id. Defendant in this
case asks us to find in § 1909 a legislative intent to eliminate the use of
the tort of battery in cases involving medical care, exactly the opposite
of the intent we found in Begin. We rejected defendant's theory in Begin
and see no reason to depart from that holding here. Id. at 523, 555 A.2d
at 367.
¶ 12. Defendant urges us to follow Lugenbuhl v. Dowling, 701 So. 2d 447, 452-53 (La. 1997), in holding that a state implied-consent statute is
intended to preempt liability on a theory of battery and require that all
consent-related claims be brought as medical malpractice claims. The
holding of Lugenbuhl is based, however, on the language of the Louisiana
statute, which is quite different from the language in our statute. Id. at
450. Other courts have reached the same conclusion that we have with
comparable statutes that use similar language. See Blier v. Greene, 587 S.E.2d 190, 193 (Ga. Ct. App. 2003) (stating that nonconsensual assault and
battery "cannot be construed as medical or professional malpractice");
Bundrick v. Stewart, 114 P.3d 1204, 1208, ¶¶ 13-15 (Wash. Ct. App. 2005)
(holding that medical malpractice statute did not preempt common-law
battery claim). In any event, we are required to construe our statute
according to our established techniques and that construction clearly shows
the statute did not preempt plaintiff's battery claim.
¶ 13. Having determined that plaintiff's battery claim is not
preempted by statute, we consider whether defendants are entitled to
summary judgment in this case, as the superior court held. In analyzing
this question, we note the parties substantially disagreed as to what
disclosures defendant made to plaintiff. Plaintiff's theory is, as he
expressed in his affidavit, that defendant "did not discuss with me any
other or different procedure" than the tissue graft procedure and plaintiff
consented only to the tissue graft procedure. Defendant disputes this
recitation of events.
¶ 14. Based on defendant's statement of undisputed facts and
plaintiff's response to the statement, the parties are in agreement on
certain key factual issues. In defendant's first statement of undisputed
material facts, defendant stated that "[t]he coronally repositioned flap is
a less invasive procedure," and plaintiff did not dispute that statement.
In fact, plaintiff stated in his affidavit that he would not have consented
to the flap procedure "because I was more interested in the likelihood of a
successful outcome than I was in the degree of invasiveness of the
procedure." In his second statement of undisputed material facts,
defendant stated "[a] periodontist must perform the steps of a flap
procedure in order to determine whether there is sufficient tissue of
adequate quality to perform the graft." Although plaintiff answered that
the statement "does not concern the treatment to which Plaintiff gave his
consent," he added that he didn't dispute the defendant's statement "[a]s a
matter of general periodontics."
¶ 15. Based on the undisputed facts in the record, plaintiff's claim
is that defendant did less than he promised-that is, defendant did not go
further and do the tissue graft-and that was why the procedure was
unsuccessful. We agree with the trial court that plaintiff does not have a
battery claim and conclude that summary judgment was properly granted for
defendant.
¶ 16. The central issue is whether plaintiff consented to the
procedure that was performed so that he cannot prove an essential element
of battery. Effective consent must be "to the particular conduct, or to
substantially the same conduct." Restatement § 892A(2)(b). Consequently,
"[w]here a doctor obtains consent of the patient to perform one type of
treatment and subsequently performs a substantially different treatment for
which consent was not obtained, there is a clear case of battery." Cobbs,
502 P.2d at 7; see Perin v. Hayne, 210 N.W.2d 609, 618 (Iowa 1973)
(accepting Cobbs analysis and noting that battery occurs when there is a
"substantial difference" between the surgery for which plaintiff granted
consent and that performed). In determining whether plaintiff gave
adequate consent, we must focus on the "conduct or procedure to be
performed, not its consequences." Godwin, 757 A.2d at 520. Consistent
with our above discussion differentiating claims based on lack of consent
from those based on lack of informed consent, consent is valid to bar a
battery claim even if it was induced by a lack of necessary disclosure of
information. See Dobbs, supra, § 103, at 242 ("If the surgeon's fault is
that he failed to provide information that should have been provided, the
plaintiff's consent holds good to bar the battery claim."). As stated,
where a plaintiff consents after inadequate necessary disclosures, the
claim should be one of medical malpractice under the
lack-of-informed-consent line of cases. See Duncan, 70 P.3d at 439, ¶
13 (adopting Cobbs and reasoning that cases "involving the doctor's
obligation to provide information" must be brought as malpractice claims,
not battery claims).
¶ 17. In essence, this is a case in which the medical professional
did a less-extensive operation than that to which the patient consented,
taking steps the professional would have taken in the more extensive
operation. Under the elements of battery described above, courts have
dismissed medical battery claims where a surgeon chooses to perform a
less-extensive operation than that discussed with the patient. See Conte
v. Girard Orthopaedic Surgeons Med. Group, Inc., 132 Cal. Rptr. 2d 855,
860-61 (Ct. App. 2003) (concluding that where doctor decided during surgery
not to repair patient's shoulder, no battery occurred because he did less
than he was authorized to do); Moser v. Stallings, 387 N.W.2d 599, 602
(Iowa 1986) (affirming directed verdict for defendant on medical battery
where plaintiff alleged that doctor failed to perform a chin implant during
plastic surgery). In doing so, one court explained: "We see no policy
reason to extend the law of battery to these circumstances where the
treatment was within the bounds of [the patient's] consent. . . . If
doctors were subject to liability for battery in such situations, it would
deter them from freely exercising their medical judgment." Conte, 132 Cal. Rptr. 2d at 860-61. We agree with the rationale of these decisions.
¶ 18. In holding that plaintiff has no battery claim, we are not
determining whether plaintiff would have had a remedy if he could have
appropriately proven the allegations in his complaint. Although we have
held that defendant acted within plaintiff's consent such that plaintiff
has no battery claim, we recognize that plaintiff claimed that his consent
was induced by defendant's representation that he would perform the tissue
graft procedure and that defendant performed the flap procedure "without
even discussing it" with him. To the extent plaintiff had an actionable
claim, it fell within the lack-of-informed-consent line of cases. Because
plaintiff dismissed that claim we do not, however, address its merits.
(FN3)
¶ 19. Finally, we address plaintiff's claims that disputed issues
of material fact and procedural deficiencies prevent us from affirming the
summary judgment decision. As we state above, we agree that material
issues of disputed fact would prevent summary judgment on whether defendant
disclosed the flap procedure as an alternative to the tissue graft
procedure. We believe, however, that no disputed issues of material fact
exist as to whether plaintiff's consent covered the flap procedure in light
of plaintiff's concession that the elements of the flap procedure were
necessary to the tissue graft procedure plaintiff sought.
¶ 20. Plaintiff argues that we nonetheless cannot affirm the summary
judgment for defendant because defendant never claimed that he acted within
the scope of plaintiff's consent when he presented his summary judgment
motion below. Plaintiff's argument is accurate to a point. Defendant did
not raise the scope of plaintiff's consent in his motion or memorandum, but
submitted facts that supported a consent argument. As a result, plaintiff
responded to those facts and stated in his memorandum:
The extent of the consent Defendant Davis secured from Plaintiff
is a disputed issue of fact, see accompanying affidavit, and
Defendants' argument based on what they contend Plaintiff
consented to cannot be given any consideration.
Apparently, plaintiff viewed the basis of defendant's motion as defendant's
reliance upon plaintiff's consent for the procedure. The trial court found
the issue was adequately joined and grounded its decision on plaintiff's
consent for defendant's action. In his brief to this Court, plaintiff did
not argue that the superior court improperly went beyond the scope of the
motion with its decision. Instead, plaintiff raised that argument for the
first time in his reply brief in response to defendant's argument that the
record supported the superior court judgment.
¶ 21. We conclude that the issue of the scope of plaintiff's
consent was properly before the superior court even if placed there by
plaintiff. In any event, we need not consider an argument raised for the
first time in a reply brief. See Robertson v. Mylan Labs., Inc., 2004 VT
15 ¶ 1 n.2, 176 Vt. 356, 848 A.2d 310.
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
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Footnotes
FN1. Although the complaint is somewhat vague, it appears to allege that
defendant Davis practices dentistry as part of Associates in Periodontics,
PLC, which is also named as a defendant. The complaint states that
defendant Associates "is liable for all the acts and omissions of Defendant
Davis," apparently on a theory of vicarious liability because no
independent acts of Associates are alleged. When we refer in the text to
"defendant," the reference is to Dr. Davis. Where the reference is plural,
it includes defendant Associates in Periodontics, PLC.
FN2. Although of lesser importance, we view it as significant that these
sections appear in Chapter 81, entitled "Conduct of Trial," of Title 12,
entitled "Court Procedure." This indicates the Legislature's intent to
provide rules on burdens of proof and evidentiary requirements for existing
claims, rather than to wholly displace substantive common-law theories of
medical tort. See Greenmoss Builders, Inc. v. Dun & Bradstreet, Inc., 149
Vt. 365, 369-70, 543 A.2d 1320, 1323-24 (1988) (considering whole statute,
subject matter, and effects and consequences in its interpretation).
FN3. Plaintiff's claim for lack of informed consent would be based on the
same transaction as the battery claim. Faulkner v. Caledonia County Fair
Ass'n, 2004 VT 123, ¶ 13, 15 Vt. L. Wk. 407, 869 A.2d 103 (noting that "
'[w]here one act causes a number of harms to, or invades a number of
different interests of the same person, there is still but one transaction'
") (quoting Restatement (Second) of Judgments § 24 cmt. c (1982)). Thus,
plaintiff would be barred by claim preclusion from bringing a future claim
for lack of informed consent arising out of this incident.
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