The Supreme Court of Virginia (“the Court”) issued an opinion on February 2, 2017 in which it determined that the action of a surgeon who had mistakenly fused the wrong level on the plaintiff’s cervical spine (operating on level C6-C7 instead of C5-C6) did not constitute a battery. The plaintiff had argued that consent was given for surgery at the C5-C6 level but not for surgery on the C6-C7 level; because the surgery exceeded the scope of consent, it constituted a battery.
The Court stated that it has recognized in the past that, in some circumstances, a physician can be liable for a battery, which it has called a “technical” battery, but the Court had not drawn the boundary that separates a technical battery from an action for negligence. The Court stated that a technical battery is present where (1) the patient placed terms or conditions on consent for a particular procedure, and the doctor ignored those terms or conditions; (2) the physician intentionally performed an additional procedure beyond the procedure the patient consented to; or (3) the physician intentionally performed a different procedure or one that differs significantly in scope from the procedure for which the patient provided consent.
The Court stated that it had to decide in the present case whether it was a technical battery where the physician set about performing the exact procedure the patient consented to, on the intended structure of the body (here, the spine), but unintentionally, either by negligence or as an unforeseen complication, performed the procedure in a location on that structure different from the one that was targeted (here, an adjacent level of the spine).
Battery Vs. Negligence
Imposing liability for battery protects two personal interests: first, the interest in the physical integrity of the body, that it be free from harmful contacts; second, the purely dignitary interest in the body that it be free from offensive contact. The defendant must respect the plaintiff’s wishes to avoid intentional bodily contact: a physician may perform an operation with great skill and nevertheless be liable for a battery if the patient did not consent.
Unlike battery, the purpose of imposing tort liability for negligence is to encourage individuals to exercise reasonable care.
Battery in tort law is exclusively an intentional tort, so if the defendant accidentally comes in contact with the plaintiff, that action would sound in negligence. Intent in this context means (a) that the actor engaged in volitional activity and (b) that he intended to violate the legally protected interest of another in his person. Negligence consists of the failure to exercise ordinary care: intentional conduct is not required, rather, heedlessness, inattention, and inadvertence can be sufficient for liability in negligence.
In medical malpractice cases, a plaintiff ordinarily must present expert testimony because issues involving medical malpractice often fall beyond the realm of common knowledge and experience of a lay jury. Therefore, in most instances, expert testimony is required to assist the jury. Expert testimony is ordinarily necessary to establish the appropriate standard of care, a deviation from that standard, and that such deviation was the proximate cause of damages.
In battery cases, it has generally been held that expert medical testimony is not required to establish a standard of care or to show causation: the factual issue is whether the patient did or did not consent to the specific operation performed by the physician, and there is nothing unique about the doctor-patient relationship that warrants a rule that in all cases expert medical testimony is required to establish what was agreed to by the parties.
The Court stated that it had to decide what must a plaintiff in the medical malpractice context prove to establish the intentional tort of battery, as opposed to what a plaintiff must prove to establish negligence. Whether a technical or medical battery has occurred generally hinges on the question of consent. The Court stated that to be liable for battery, the defendant health care provider must have done two things. First, the health care provider must have intentionally made physical contact with the patient and, second, that physical contact must have been deliberately against the patient’s will or substantially at variance with the consent given. The question of authorization or consent is further broken down into two related issues: consent for the procedure and the related question of informed consent (whether the health care provider disclosed the risks associated with a particular procedure).
In the case it was deciding, the Court rejected the plaintiff’s argument that there was no consent for the surgery that the defendant surgeon performed, and therefore, the surgery constituted a battery, stating that such an expansive conception of a technical battery would effectively jettison the required showing of intent. Battery is an intentional tort: the justification for holding a physician liable is that the physician has acted in conscious disregard of the patient’s interest in his physical integrity.
The Court further stated that the plaintiff’s position would have the effect of displacing the ordinary requirement of expert testimony in a broad range of cases. The requirement of expert testimony to establish the standard of care ensures that the fact-finder makes an informed decision concerning whether the physician’s actions fell within or violated the standard of care. To premise a claim for medical battery on the assertion that the patient did not consent to the negligent performance of the medical procedure otherwise covered by valid consent would transform every medical malpractice claim into a battery claim.
The Court’s Holding
The Court held that a physician is not liable for a battery unless the plaintiff establishes a prima facie case that the physician performed an operation against the patient’s will or substantially at variance with the consent given. The facts must be sufficient to permit an inference that the physician intended to disregard the patient’s consent regarding the procedure or the scope of the procedure.
Source Mayr v. Osborne, 151985.
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