As states increasingly enact damages caps in medical malpractice cases, medical battery may offer an alternative theory of liability for a plaintiff’s injuries, thus avoiding statutory limitations on damages. Medical malpractice and medical battery are two different causes of action. Medical malpractice generally stems from conduct that is unintentional and negligent, while medical battery is intentional unauthorized contact. It is possible for a single incident to involve both medical battery and medical malpractice. Such dual claims are known as “hybrid” lawsuits and they are increasingly being brought against physicians. They also pose unique challenges for both sides and care must be taken in proving or defending each claim.
Medical battery cases typically arise when a physician provides care without consent. The law recognizes the right of patients to decide whether to receive treatment. If the plaintiff does not give consent, then he/she may have a claim for battery. Battery requires intentional touching, but does not require a showing of negligence. As a result, it is not necessary to have expert witnesses discuss whether the physician breached his/her duty of care as needed in a medical malpractice action. However, medical expert witnesses may be used to testify regarding whether the provider followed appropriate procedures in seeking consent and whether the patient was capable of giving consent.
Where a patient did give consent, but there are questions about whether the patient was properly informed about risks, benefits, and alternatives, claims for battery may come into play. For example, a patient gives consent to one procedure, but the doctor decides to do a substantially different one or performs procedures which go beyond what was discussed. Some courts have found that this situation may give rise to a hybrid lawsuit alleging both malpractice and battery claims. Plaintiffs argue that they did not consent to the other procedure and therefore, it is battery. Defendants contend they are not acting with an intent to defeat the patient’s wishes; they are simply taking necessary action based on what occurred during the actual procedure. They argue that plaintiffs are relying upon expert witness opinion testimony that shows the surgeon breached the standard of care in deciding to proceed as he did, which is the standard for malpractice actions, not battery.
In order to determine whether such cases constitute medical battery, expert witnesses will be needed to testify regarding the appropriateness of the warnings given by the physician to the patient, including the risk that the doctor may need to do additional procedures. In addition, witnesses may provide testimony assessing whether the procedure done was substantially different than what was consented to.
As noted above, the significance of finding that a physician’s conduct constitutes battery is that a state’s cap on damages (particularly, non-economic damages) in medical malpractice cases may not apply. Currently, 24 states have such a cap. Medical battery claims can avoid the cap resulting in significantly higher verdicts than malpractice actions.
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