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Tennessee Appeals Court Says Directed Verdict Was Improper On Medical Battery Claim; But Appropriate On Malpractice Claim

 
 

HLD, v. 33, n. 6 (June 2005)

Tennessee Appeals Court Says Directed Verdict Was Improper On Medical Battery Claim; But Appropriate On Malpractice Claim

During surgery to repair a bilateral hernia, defendant Dr. Yung Gil Lee also performed an orchiectomy and removed plaintiff Massingale's left testicle. Plaintiff sued defendant claiming, in part, that defendant had committed both medical malpractice and medical battery. The trial court granted defendant's motion for a directed verdict on the claim of medical battery. The claim of medical malpractice went to the jury and resulted in a mistrial. The trial court then reconsidered defendant's motion for a directed verdict on the claim of medical malpractice and entered an order granting a directed verdict on that claim as well and dismissing the case. Plaintiff appealed.

The Tennessee Court of Appeals affirmed as to the medical malpractice claim but reversed and remanded as to the medical battery claim.

Plaintiff had signed a general consent form in which he consented to the "performance of operations and procedures in addition to or different from those contemplated, whether or not arising from presently unforeseen conditions." Plaintiff also testified, however, that he specifically asked defendant prior to the surgery if the surgery would "affect me in any way in my manhood or anything happen down there that I should need to know about." Defendant responded that it was minor surgery and that plaintiff did not have to worry. Given this testimony and defendant's response, the appeals court  found that, even in light of the consent form, reasonable minds could disagree as to whether plaintiff either was aware defendant was going to perform this procedure or whether plaintiff authorized performance of this procedure. The appeals court therefore held that the trial court erred in granting a directed verdict on the claim of medical battery.

The appeals court did agree, however, with the trial court's analysis and decision on the medical malpractice claim. A primary issue in the malpractice claim was whether defendant should have used mesh during the hernia repair procedure. Plaintiff's expert urologist testified that while many surgeons use mesh, many others never use mesh and that the use of mesh carries its own risks. The appeals court agreed with the trial court's conclusion that unless there was other competent evidence to prove that use of mesh in this surgery in this or a similar community constituted negligence, a jury verdict could not rest on evidence this inconclusive, contradictory, or speculative. Thus, the appeals court held plaintiff failed to establish the standard of care required, and further failed to establish that defendant's actions or omissions caused plaintiff to suffer damages that would not otherwise have occurred.

Massingale v. Lee, No. E2004-01364-COA-R3-CV, 2005 WL 990557 (Tenn. App. April 28, 2005).  

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