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Georgia Court of Appeals Affirms Summary Judgment on Battery Claim

The Georgia Court of Appeals affirmed summary judgment on a plaintiff’s claims of battery arising out of a blood draw. Plaintiff alleged that she went to her doctor’s office for a routine checkup, including a blood draw. During other visits, a nurse named Dina drew blood from on top of her hand. On this particular visit, Dina did not perform the draw but an unnamed technician did. The technician started at the elbow first and Plaintiff objected. The technician then tried lower on the arm and alleged “pierced the tendon bone,” struck a nerve, and caused shooting pain into plaintiff’s brain. Plaintiff alleged a variety of injuries, totaling 50 medical conditions and 20 diagnoses.

The trial court granted summary judgment. On appeal, Plaintiff argued there was a fact dispute on a claim for battery because her “consent to the blood draw was far exceeded” during the first attempt and there was no consent for the second attempt. On appeal, the Court held that Plaintiff’s claim was for lack of informed consent and an expert witness affidavit and testimony were required. Because Plaintiff did not have an expert, the Court affirmed summary judgment. In so holding, the Court explained the difference between general consent, informed consent, and withdrawal of consent. For withdrawal, the patient must act or use language that is unambiguous and leaves no room for doubt that consent has been withdrawn. Here, Plaintiff presented for a blood draw, extended her arm, and never communicated that consent was withdrawn. Accordingly, Plaintiff could not recover for battery.

Take-home: this was a pro se case (which explains the 50 medical conditions and 40 diagnoses), but a good discussion of the basic consent concepts and the need for expert testimony.

The case is Zephaniah v. Georgia Clinic, P.C., __ S.E.2d ___, 2023 WL 4114553 (Ga.Ct.App. June 22, 2023).