TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Wednesday, February 22, 2017

VA: Battery or Negligence?

The jurisdictions wrestle with the line between battery and negligence, especially negligence based on informed consent.  The Virginia Supreme Court just drew the line in a case in which a physician fused the wrong level on the patient's spine (C-6 and C-7 instead of C-5 and C-6).  The court ruled this was an issue of negligence, not battery:

In the case of battery, there has been precedent that defines it as any unwanted bodily contact or the consent of the patient. Whereas the tort of negligence has been set up to ensure individuals act with reasonable care. As well, in battery there is the question of intent whereas intent is not a consideration in negligence.

“These considerations lead us to conclude that a physician is not liable for 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,’” according to the court's opinion.

The court also concluded that whether or not Mayr disclosed the risks involved with the surgery will also fall under the tort of negligence.

“When a patient has consented to surgery but complains that the physician has not disclosed certain risks, the dispositive question is whether the physician breached the standard of care by failing to disclose those risks. Breach of the standard of care falls within the realm of negligence and does not constitute an intentional tort,” the opinion states.

Forbes has the story.

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