Did I commit battery? I did nothing wrong...

David J. Goldberg, M.D., J.D.Dr. Joe wants to begin to use a new dermal filler.  Because he has always tried to treat patients in a most conscientious manner, he reached out to the company selling the filler and asked Dr. Al, a world-renowned injector, to come to Dr. Joe’ s office to help him with his first day of treatments. Dr. Joe had three patients scheduled on the first day. He had told all three patients that Dr. Al, the world-renowned physician would be assisting in the treatments. One of the three patients was very anxious and scheduled the treatment only because Dr. Al would be assisting. All patients signed a general consent form that simply stipulated their agreement to undergo the procedure by Dr. Joe.

Unfortunately, on the actual day of treatment, Dr. Al had to cancel his visit at the last moment. All three patients were treated by Dr. Joe. There were no complications. However, soon after the procedure date, the anxious patient became increasingly distraught because he had so much swelling from the injection. He was certain this occurred because the treatment was performed solely by Dr. Joe. The swelling resolved over several weeks. He sued Dr. Joe for battery. The basis of the suit was that, although no untoward event happened during the procedure (malpractice), a procedure was performed on him for which he never provided consent. The plaintiff expected Dr. Al to be present during the procedure.

Dr. Joe has now determined that a lawsuit based in battery will not be covered by his medical malpractice insurance. He has conceded that the patient had been told that the procedure would be performed by both he and Dr. Al. However, he cannot understand how a battery cause of action could proceed against him. He knows that such a lawsuit, if successful against him, could cause him to lose his medical license even though no untoward event occurred.

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NEXT: Battey as cause of action

Battery as cause of action

A  New Jersey case examined the issue of whether a plaintiff can recover for the substitution of a heath care provider absent actual harm. In that case, a patient consented to undergo spinal fusion by his physician knowing that the procedure would be performed by both his doctor and another world-renowned surgeon who would be spending the day with his doctor. On the day of the procedure, the famous physician was not available. His physician substituted an associate to help him with the surgery. The signed consent form never stipulated that the procedure was to take place under the guidance of the famous surgeon. Unfortunately, there were numerous post-operative complications, but none of them led to any permanent injury. The patient chose to sue on a theory of battery and not medical malpractice based on negligence. Negligence would have required proving damages. The battery cause of action could be brought absent any injury. It was based solely on a procedure being performed without the patient’s consent.

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Considering precedents

The New Jersey court looked at cases based on a lack of informed consent and noted that, in order to be successful, the patient must prove that the doctor withheld pertinent medical information concerning the risks of the procedure and alternatives.  The suing plaintiff must also prove causation, which requires a showing by the plaintiff that a reasonably prudent person in the plaintiff’s position would have declined to undergo the treatment if informed of the risks that the defendant doctor failed to disclose. Thus the court required damages for informed consent lawsuits, much like it did for negligence lawsuits.

True battery, based on a lack of informed consent, was reserved solely for those instances where the patient consented to one type of operation but the physician performed a substantially different one from that for which authorization was obtained, or for instances where no consent was obtained

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The New Jersey court assumed that the surgeon had made the promise of having the expert surgeon present-even though this was not contained in the signed consent form. The suing plaintiff in fact had consented to the surgery and to his physician performing that surgery. The court found that there was no evidence that the surgeon had deviated from the standard of care. The plaintiff had also suffered no long-term harm. Since this claim was based on informed consent, and not on medical battery, the plaintiff was entitled to nothing.  

Similarly, Dr. Joe had obtained consent from his patients for the new filler.  The procedure was performed without long-term complication. There is no basis for a medical malpractice claim based on informed consent.  There was also no basis for a suit based on battery.