FOR PUBLICATION

ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

R. STEVEN JOHNSON    JERRY GARAU
Sacopulos Johnson Carter & Sacopulos     MARY FINDLING
Terre Haute, Indiana    Findling Garau Germano & Pennington P.C.
            Indianapolis, Indiana

MANUEL A. CACDAC, M.D.,        )
                                    )
    Appellant-Defendant,            )
                                    )
        vs.                         )    No. 84A01-9712-CV-407
                                    )
BRENDA WEST,                        )
                                    )
    Appellee-Plaintiff,             )
                                    )
    and                             )
                                    )
RAMANA REDDY, M.D.,                 )
                                    )
    Non-Appealing Defendant.        )

KIRSCH, Judge

judgment. Bamberger & Feibleman v. Indianapolis Power & Light Co., 665 N.E.2d 933, 936 (Ind. Ct. App. 1996). We will affirm a trial court's grant of summary judgment if it is sustainable on any theory found in the evidence designated to the trial court. Id.

fact, and until these factual issues have been determined. Thus, the rebuttable presumption does not arise.
    Cacdac also contends that he did not fail to inform West of a risk that a reasonably prudent physician would have disclosed. In Culbertson v. Mernitz, 602 N.E.2d 98 (Ind. 1992), our supreme court held that the standard for evaluating the quality of the information given to a patient in conjunction with obtaining her consent to a procedure should be evaluated according to the “reasonably prudent physician” standard. Id. at 103. Accordingly, a plaintiff alleging a failure to obtain informed consent must present expert medical testimony to establish whether a physician's disclosure of risks comports with what a reasonably prudent physician would have disclosed. Id. In this case, both West and Cacdac have presented expert testimony about whether Cacdac fairly communicated to West the risks of alternative courses of treatment. These experts disagree with regard to whether Cacdac's statements and actions met the standard of the reasonably prudent physician. Dr. Robert Cravens, a member of the Medical Review Panel, testified that, although there was a chance that West's condition would improve without the surgery, she should also have been informed of the risk of paralysis that she undertook by foregoing the procedure. He testified,
    “Q: So in this case it's your opinion that it was appropriate for Dr. Cacdac to say to Brenda Brown 'Your options are surgery or continue taking the medicine but be aware that you could step off the curb the wrong way or twist the wrong way and be paralyzed'?

    A: I'm not saying that that was correct in stating it that way, but I think if you want him to say there's a chance that she can get absolutely normal from this

and be pain-free, then I think you have to go the other way and say 'There's a chance you can be paralyzed.'”

Record at 1667. However, West's expert, Dr. Karl Manders, testified that the risk of paralysis was incredibly small, and that both Cacdac and Dr. Cravens were overstating that risk. About Dr. Cravens' testimony, Dr. Manders stated,
    “I think it's a ridiculous statement. I doubt Doctor Cravens or any other orthopedic surgeon has seen two or three percent of patients who have had the condition that Brenda West presented result in paralysis. . . . Is it possible? I would have to say anything is possible. Is it no more than two or three percent? I would say that is absolutely ludicrous.”

Record at 1777. Dr. Manders' opinion is that Cacdac's communication to West did not meet the standard of the reasonably prudent physician. This conflicting expert testimony creates a genuine issue of fact for resolution by the trier of fact. As such, this issue is inappropriate for resolution by summary judgment. The trial court did not err.

he points to the expert testimony for support. On the issue of whether West faced the possibility of paralysis, Dr. Cravens testified:
    “Q: You think that's a definite possibility in this case?

    A: I think it's a possibility, yes.

    Q: What percent?

    A: I think it's a small percentage, it probably happens in no more than 2 or 3 percent, but it's a possibility.”

Record at 1666-67. However, Dr. Manders testified about the possibility of paralysis as follows :
    “I think it's a ridiculous unlikelihood. I think the chance of that happening -- I have never seen it happen in 40 years with a spondylolisthesis, and with the type of pathology that this patient had. I think the chance of that happening would be a fraction of one tenth of one percent. Almost impossible.”

Record at 692.
    Viewing these statements in the light most favorable to West, the non-movant, we conclude that the opinions of Dr. Cravens and Dr. Manders create a genuine issue of material fact about whether Cacdac's statements were true. A fair reading of Dr. Manders' testimony is that he believes that paralysis from West's condition was virtually impossible and that Cacdac's statements to West that she could become paralyzed from everyday movement were false because they conveyed the misimpression that such an occurrence was likely. Thus, West's fraud claim was inappropriate for resolution by summary judgment.
    Cacdac also contends that the statements were not fraudulent because they did not relate to a present existing fact, but to a future occurrence. One of the elements of a cause

of action for fraud is a material misrepresentation of a past or existing fact. Fleetwood Corp., 404 N.E.2d at 42. In this case, West alleges that Cacdac purposely overstated the risk to her of her current condition if she decided not to have the surgery and to simply continue taking medication to control her pain. Cacdac's statements refer to her condition as it existed at the time of their conversation. Thus, it does relate to a present and existing fact, contrary to Cacdac's argument. There are genuine issues of material fact relating to West's claim of fraud that preclude the entry of summary judgment on that claim.

procedural mechanism for disposing of claims of medical malpractice; it does not alter the substantive law to be applied in the adjudication of those claims on the merits. Under Indiana law, punitive damages may be awarded upon a showing of a 'quasi-criminal' state of mind or willful and wanton misconduct which, under existing circumstances, the tortfeasor knows will probably result in injury. Mitchell v. Stevenson, 677 N.E.2d 551, 564 (Ind. Ct. App. 1997), trans. denied. Conduct which is oppressive or amounts to gross negligence justifies punitive damages. Id. Nothing in the Indiana Medical Malpractice Act prohibits the award of punitive damages, and we know of no reason physicians or other medical personnel who engage in such conduct should be immune from such damages.
    The existence of circumstances justifying punitive damages is a question for the trier of fact. See id. In this case, whether Cacdac's conduct rises to the level to support the imposition of punitive damages is a question of fact. The trial court did not err in denying Cacdac's motion for summary judgment on West's claim for punitive damages.

a negligence theory, but failure to obtain informed consent rises to level of battery when physician completely fails to obtain informed consent).
    In a case factually similar to Kerr, Boruff v. Jesseph, 576 N.E.2d 1297 (Ind. Ct. App. 1991), Mrs. Boruff consented to surgery to be performed by Dr. Jesseph. She specifically withheld her consent to Dr. Milan, Dr. Jesseph's partner, performing the surgery. Dr. Milan performed the surgery. She and her husband brought a claim of battery against the physicians. In holding that the Boruffs' claims were subject to the Medical Malpractice Act, the court stated, “[t]he real question the Boruffs raise is one of informed consent, and informed consent actions are based upon a breach of the physician's duty to 'make reasonable disclosure of material facts relevant to the patient's decision about treatment . . . i.e., negligence, not battery.'” Id. at 1299 (quoting Collins v. Thakkar, 552 N.E.2d 507, 511 n.6 (Ind. Ct. App. 1990), trans. denied)).
    The majority opinion in Boruff drew a dissent from Judge Barteau, who stated, “[i]t is hornbook law that a surgeon who exceeds the scope of a patient's consent commits battery.” Id. at 1299 (relying on W. Page Keeton, Prosser and Keeton on Torts 118-19 (5th ed. 1984)). She disagreed that the conduct at issue in that case gave rise to a claim of negligence because “[t]he question is not whether Milan's surgical technique was compatible with the standard of care for doctors in that area. The success or failure of the operation is immaterial to the battery claim. Had the operation been successful, Boruff would still be entitled to damages if she proved the elements of her claim.” Id.

consent claim has elements of both battery and negligence. The greater the physician's failure, the more akin to battery; the lesser the failure, the more akin to negligence. This is not to say that every omission in the explanation of a procedure and its risks and benefits gives rise to an action for battery. Rather, an informed consent procedure that falls far short of that mandated by the relevant standard of care could, in some circumstances, support such a claim. Examples of such circumstances include gross negligence, fraud, or the intentional withholding of information.
    Here, West alleges that Cacdac's statements were fraudulent. She claims that she was induced to consent to the surgery by Cacdac's fraudulent representations that she faced a real risk of paralysis by opting to forego the surgery. We therefore hold that West's claim for battery is not barred as a matter of law. Accordingly, the trial court erred in granting summary judgment, and we reverse the entry of partial summary judgment on West's battery claim.
    Affirmed in part, reversed in part.
STATON, J., and ROBB, J., concur.

    “If the physician fails to make a required disclosure, and knows that the patient is substantially mistaken about the hazards of the proposed treatment, the patient's consent could be considered ineffective under the principle described in the text, and the physician could be considered subject to liability for battery. Some courts have taken this position. Most authorities, however, prefer to treat informed consent liability solely as an aspect of malpractice or negligence, rather than battery.”

Fowler V. Harper et al., The Law of Torts §3.10 (3d ed. 1996). These commentators recognize that the wide spectrum of factual circumstances that could give rise to a claim for lack of informed consent vary in degree of physician culpability. We, likewise, believe that it is preferable to allow plaintiffs bringing informed consent claims to pursue claims for battery or for negligence, depending on the particular facts and circumstances.

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