## Facts

- Paul Christman consulted periodontist Gordon H. Davis, D.M.D., for gum recession and root exposure.
- Davis discussed root-coverage options, including a tissue graft, and Christman consented to a tissue graft procedure.
- A tissue graft involves making vertical incisions around the exposed root, freeing gingival tissue, and grafting donor tissue from the palate onto the root.
- After administering local anesthetic and beginning surgery, Davis elected to perform a flap procedure instead of a tissue graft.
- The flap procedure uses the same initial incision as a tissue graft but applies a protein (Emdogain) to help the gum adhere to the tooth; it does not require harvesting donor tissue.
- Christman learned after the procedure that no tissue graft had been performed; the flap procedure did not achieve full results, and he was later told he would still need a tissue graft.
- Christman sued for dental malpractice, lack of informed consent, and battery, then voluntarily dismissed the malpractice and informed-consent claims and proceeded only on common-law medical battery.
- The parties disputed whether the flap procedure was discussed beforehand, but agreed it was less invasive and would have been a necessary initial step for the tissue graft.
- The trial court granted defendants summary judgment; Christman appealed.

## Issues

1. Whether Vermont’s informed-consent statute, 12 V.S.A. § 1909, displaces common-law medical battery claims.
2. Whether performing a flap procedure after obtaining consent for a tissue graft constitutes medical battery when the flap procedure is substantially similar to, less invasive than, and clinically related to the consented procedure.
3. Whether any genuine dispute of material fact required denial of summary judgment on the battery claim.

## Decision

- The Vermont Supreme Court affirmed summary judgment for Davis and his practice.
- The court held that 12 V.S.A. § 1909 does not preempt common-law medical battery because the statute addresses negligence-based informed-consent claims, not intentional torts.
- The court held that, on the undisputed facts, the flap procedure fell within the scope of Christman’s consent to the tissue graft because it was substantially similar and less invasive, and used the same operative site and initial incision.
- The court concluded that any dispute about whether Christman would have agreed to the flap procedure with additional information sounded in informed-consent negligence, not battery, and that claim had been dismissed.

## Legal Principles

- Medical battery requires a complete absence of consent to the procedure performed or performance of a procedure that is substantially different from the one authorized.
- Lack of informed consent is grounded in negligence and concerns whether the clinician failed to provide information a reasonable patient would consider material to the decision.
- An informed-consent statute that codifies a negligence disclosure claim does not, without clear legislative intent, abrogate common-law intentional tort claims such as medical battery.
- A clinician is not liable for battery when the procedure performed is substantially similar to and less invasive than the procedure consented to, performed on the same operative site, and within the bounds of the patient’s general authorization for that surgery.

## Conclusion

The court held that Vermont’s informed-consent statute leaves common-law medical battery intact, but affirmed summary judgment because the flap procedure was a substantially similar, less invasive variant within the scope of Christman’s consent to gum surgery, making battery unavailable as a matter of law.


Christman v. Davis, 179 Vt. 99, 889 A.2d 746 (Vt. 2005)