Malpractice Consult: Historically, battery has been alleged when a physician performs a procedure without informed consent. Battery may also be charged, however, when informed consent has been obtained but the physician elects to do a procedure differently than agreed upon.
While most physicians believe that they're immune from liability if they can prove that they performed their services skillfully, a recent court decision reminds us that this isn't necessarily so.
In addition to lawsuits alleging medical malpractice, which require a plaintiff to prove that injury resulted from a deviation from a recognized standard of care, patients can sue physicians for battery. Historically, battery has been alleged when a physician performs a procedure without informed consent. Battery may also be charged, however, when informed consent has been obtained but the physician elects to do a procedure differently than agreed upon.
The latest case highlighting this risk involved a patient who alleged that although he had consented to spinal surgery, he did so on the condition that the surgeons would use only the patient's own bone material-not cadaver bone. The surgeons denied that the patient made this demand, and there's no documentation to confirm the patient's assertions.
In his lawsuit, the patient complained that the surgeons' use of cadaver bone constituted both a breach of contract and a battery. The court agreed. Even if the procedure itself were authorized, it said, if the patient placed conditions on his consent and those conditions weren't fulfilled, the surgery is a battery.
Battery is a powerful claim, since it doesn't require proof that the operation was negligently performed. Damages can include an award for mental anguish and, because battery connotes an intentional invasion of another's rights, punitive damages as well. Moreover, if a jury is unable to segregate the harm caused by unauthorized acts and the harm caused by actions to which consent was granted, the physician is liable for the entire harm-even if the surgery went fine.
Performing surgery in a manner other than that specifically agreed upon can also constitute a breach of contract. While some states limit damages for breach of contract in the context of a physician-patient relationship (New York, for one, limits recovery to economic damages), other states do not. Those states allow the full panoply of damages, including recovery for mental anguish, pain and suffering, the worsening of the patient's condition, and damages from subsequent surgery needed to repair the injury.
To protect yourself against a breach of contract claim, you'd be wise to revise your informed consent forms. For example, "I have placed no limitations on the manner in which my doctors may perform this procedure, or the materials that may be used, except as follows." Then add a line or two for patients to indicate restrictions.
The author is a health law attorney with Kern Augustine Conroy & Schoppmann in Bridgewater, NJ, Lake Success, NY, and Philadelphia. He can be reached by e-mail at firstname.lastname@example.org
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