Did I commit battery?

January 1, 2006

Dr. Joe recently acquired a new laser. Because he has always tried to treat patients in a most conscientious manner, he had a clause placed in his laser purchase contract that provided that Dr. Doe, a laser expert, would come to Dr. Joe' s office to help him with his first day of treatments.

Dr. Joe had three patients scheduled on that very first day. He had told all three patients that world-renowned laser expert Dr. Doe would be assisting in the treatments. All patients signed a general consent form that simply stipulated their agreement to undergoing the procedure by Dr. Joe. One of the three patients was very anxious and scheduled the treatment only because Dr. Doe would be assisting.

Unfortunately, on the actual day of treatment, Dr. Doe had to cancel his visit at the very last moment. All three patients were treated by Dr. Joe. There were no complications.

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 had never provided consent. The plaintiff had expected Dr. Doe to be present during the procedure.

Dr. Joe has now determined that a lawsuit based on battery would 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 Dr. Doe and himself. However, he cannot understand how a battery cause of action could proceed. He knows that such a lawsuit, if successful, could cause him to lose his medical license even though no untoward event occurred.

A recent New Jersey case examined the issue of whether a plaintiff can recover for the substitution of a healthcare 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 assist 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, none of which 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.

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, the alternatives, or the potential results if the procedure or treatment was not undertaken. 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 as it did for negligence lawsuits.

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

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 harm. Since this claim was based on informed consent, and not medical battery, the plaintiff was entitled to nothing.

Similarly, Dr. Joe had obtained consent. The procedures were performed without complication. There was no basis for a medical malpractice claim or for a suit based on battery.

Dr. Goldberg is the director of SkinLaser & Surgery Specialists of New York and New Jersey; director of Mohs surgery and laser research, Mt. Sinai School of Medicine; and adjunct professor of law, Fordham Law School.

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