The Court of Appeal, Fourth Appellate District Division One State of California (“California Appellate Court”) held in its unpublished opinion filed on September 24, 2019 that “[w]hile in many cases, even most, a patient subjected to an unwanted surgery will easily be able to prove causation and harm to some extent, they remain factual questions for the jury to decide on the specific evidence presented.”
In the case it was deciding, the California medical malpractice plaintiff had consented to the defendant surgeon performing meniscus surgery to repair the tear in her knee but specifically rejected a lateral release procedure to correct her misaligned patella.
When the defendant surgeon performed knee surgery on the plaintiff, he allegedly discovered that the plaintiff’s meniscus was not torn but her patella was misaligned. The defendant believed that the patella misalignment was likely causing the plaintiff’s symptoms because it was rubbing her femur and wearing away the cartilage. The defendant could not realign the patella manually and therefore performed the lateral release procedure.
The plaintiff filed a lawsuit against the defendant surgeon, alleging medical battery. The California medical malpractice jury found that the defendant surgeon had performed a medical procedure without the plaintiff’s consent, but that the procedure did not cause her any harm. The plaintiff appealed, arguing that the jury’s findings are inconsistent and irreconcilable.
California Appellate Court Opinion
A battery is an intentional and offensive touching of a person who has not consented to the touching. Although typically a battery is a violation of a person’s wishes to avoid bodily contact that is hostile, aggressive or harmful, the tort is committed if there is unwanted intentional touching of any kind.
A typical medical battery case is where a patient has consented to a particular treatment, but the doctor performs a treatment that goes beyond the consent. When an action is based upon the theory of surgery beyond consent, the gist of such action is the unwarranted exceeding of the consent.
Medical battery is distinguishable from medical negligence because it does not require proof that the physician deviated from the standard of care. A physician who performs a medical procedure without the patient’s consent commits a battery irrespective of the skill or care used.
The California Appellate Court stated that a patient must prove more than lack of consent: she must prove she was harmed as a result of the unwanted procedure. The California Appellate Court stated that in the present case, “[the plaintiff] would collapse the separate elements of battery (unwanted touching, harm, causation) into a single element (unwanted touching) where medical battery is at issue. [The plaintiff] cites no authority for this legal proposition, and we are aware of none … While courts commonly describe an unwanted medical procedure as battery to distinguish it from mere negligence … these courts do not state or imply that the fact of the unwanted procedure is all that must be proved. While in many cases, even most, a patient subjected to an unwanted surgery will easily be able to prove causation and harm to some extent, they remain factual questions for the jury to decide on the specific evidence presented.”
The California Appellate Court held: “Based on our review of the record, the jury could reasonably have found that [the plaintiff] had not proved the lateral release procedure caused her any harm. It could have concluded that the harm claimed by [the plaintiff] (various medical ailments and consequent inability to work) was not caused by the lateral release procedure. The jury could have believed the testimony of … the defense medical expert, that the lateral release procedure was a success, [the plaintiff’s] knee was normal, nothing prevented her from working, and any pain in her leg was caused not by her knee but by her hip. Indeed, [the plaintiff] admitted that she had pain and could not work before the surgery, which discredited her assertion that the lateral release procedure caused those conditions. She also admitted having pain and discomfort apart from her knee, including her sciatic nerve, that impacted her ability to work. While there was evidence that the lateral release procedure generally required more recovery time than meniscus surgery, the jury was not required to believe that [the plaintiff’s] recovery time was any longer as a result of the lateral release procedure.”
Source Walker v. Ghazal, D075548.
If you or a loved one suffered harm as a result of medical negligence or medical battery in California or in another U.S. state, you should promptly find a California medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your medical malpractice or medical battery claim for you and represent you or your loved one in a medical malpractice or medical battery case, if appropriate.
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