The Distinction Between Informed Consent and Battery Cases

The distinction between a lack of informed consent case and a pure medical battery case is set out in Blanchard v. Kellum, 975 S.W.2d 522 (Tenn. 1998). An informed consent case requires expert proof as to the standard of care (or recognized standard of acceptable professional practice) of similar medical professionals. The plaintiff must establish what information is provided to patients prior to the procedure, and how the information is disclosed to the patient, in order to prove that the professional deviated from the standard of care. In a medical battery case, on the other hand, the plaintiff must establish either that the patient was unaware that the doctor was going to perform the procedure, or that the patient did not authorize the procedure. Medical battery cases include those in which the doctor performs a surgery that has been discussed with the patient, but performs the surgery on the wrong part of the body (i.e., amputation of the wrong limb). A true medical battery case does not require expert witness testimony on the standard of care, because there is no prior consent to be judged.

This is complaint from a medical malpractice and medical battery case in which a surgeon mixed up two of his patients' charts, leading him to perform a surgery on the plaintiff to which she had never consented. Download file

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Comments (12) Read through and enter the discussion with the form at the end
alex baker - August 6, 2005 10:40 PM

Say a patient consented to a procedure believing it to be a cosmetic procedure to treat a cosmetic problem. But then it turned out that the procedure was proven in the literature to cause permanent physical and mental disabilities, and was, in fact, psychiatric surgery. Could that be considered a medical battery?

John - August 7, 2005 7:06 AM

Maybe. A battery claim arises when a doctor asks for and obtains permission to do a particular procedure on a particular part of another's body. The failure to give proper information to the patient to allow him or her to make an appropriate decision can give rise to a "lack of informed consent" claim against the doctor. The failure to do the procedure correctly gives rise to a medical negligence claim.

Here, you ask about a situation in which the doctor misrepresented the nature of the procedure itself. That is probably gives rise to informed consent issues, but my memory is that some states recognize what I would call a "battery by trick" claim; i.e. you tricked my into giving consent.

As you can see this type of claim is real close to an informed consent claim. Tennessee, the state where I practice, would call the claim you describe a possible "lack of informed consent" claim.

The law of every state is different. The law of every state also has different time limits for filing claims. If you have a concern about treatment by a doctor or any other professional you should consult a lawyer as soon as possible.

Charles - September 19, 2005 11:09 AM

My daughter recieved a hepatitis B vaccine after my wife and I signed a refusal form "not to vaccinate" Two weeks later we rushed her to the ER because she had stopped breathing. We believe that htis was a reaction to the vaccine. Regardless, this constitutes mecial battery. Are there any similar cases that you are aware of?

John Day - September 19, 2005 9:32 PM

No I am not. You will need an appropriate expert to link the breathing issue with the administration of the vaccine.

I hope your daughter is ok.

sandra - September 22, 2005 6:39 PM

We are discussing battery vs. negligence in our nursing class. We are wondering: If a patient is uncooperative and the nurse is giving the patient a shot nad a second nurse comes into the room and holds the patients arm to protect the 1st nurse from getting stuck..........

(1) Is the 2nd nurse (the one holding the arm to keep the 1st nurse from gettng stuck) charged with battery or negligence?

I think that a charge of negligence is more likely although I'd bet that a lawsuit that was filed included battery, negligence and malpractice. Could you address this. Thanks from the future and hopefully well educated, ethical nurses of tomorrow.

Jane - November 28, 2005 11:25 AM

Is this a medical battery or a lack of informed concent issue: I concent to have a breast augmentation done and agree to a certain size. I wake from surgery to find the implants have fallen out from behind the muscle wall and are three inches below my inframmamory fold (a term called 'bottoming out') I learn that the doctor put in implants 30% larger than what I agreed to and what was outlined on my pre-operative plan. Under the accepted standard of care, are cosmetic surgeons allowed to deviate or use 'discretion' when choosing what size to actually put in you?

John Day - November 28, 2005 5:43 PM

Jane - only a plastic surgeon can answer that question for you. I suggest you sit down with a lawyer, explain the entire situation, and let he or she determine if it makes sense to consult with a plastic surgeon.

I wish you the best.

Arlene - December 9, 2005 12:21 PM

If a dentist uses his upper body weight to plunge a hpyerdermic needle into his patient giving excessive novacaine and then drills around a metal post and core without having a reason then switches drills to one that has a hammer hit effect on the teeth making the metal post continuously hit the walls of the post space it occupies, and he drills the backs of teeth removing natural dentition and doing other damage, should I go to the police and file a report or file a lawsuit or go to the State Licensing Board or what?

John Day - December 9, 2005 9:26 PM

Arlene - you should either talk with a lawyer about the potential dental negligence claim or talk to the State Board, or both. You did not indicate what sort of problems you are having as a result of what you describe, but generally speaking a medical negligence claim must be significant before a lawyer can afford to handle it.

Good luck.

Tami - August 5, 2006 10:15 PM

I had consented to a vaginal hysterectomy when I woke up the doctor had done it through the abdomin in stead. There was no medical reason to change the surgery. I have my medical records and she never even attempted to do this vaginally. I was preped, from the beginning, in the operating room, for the abdominal hysterectomy. There was a scheduling error on her part and she had three other hysterectomies that day. I'm pretty sure she did this to me simply to save time. When I asked her why she did this she mumbled things such as, "well there could have been bowel damage or bladder damage etc..." We had already discussed these risks prior to my consenting, and signing, for the vaginal hysterectomy. I now have an ugly scar. Is this medical battery?

DIANA - March 15, 2009 1:26 AM

i would like to know if a registered nurse perfome CPR to someone in the street and then the person discoveres that one of the ribs was fractured while receiving CPR can the nurse be held liable for battery and or negligence?...i need help with this as soon as possible thank you

Erica Boone - April 20, 2010 9:16 AM

What are your rights as far as consent is concerned if you are taken to the ER while passed out? my daughter, a 22 year old, worked a 16 hour shift at work after getting up at 3 am then went to a graduation party and drank. she passed out and her boyfriend took her to the ER when he panicked, thinking she was having trouble breathing. They allowed him to sign the consent form and they took a urine sample from her, after she had been there for an hour. They did a catscan "just for precaution". The problem is that my daughter had been raped 3 years ago and she was severely traumatized when she awoke and tried to fight the nurse to get her to stop touching her. My daughter went to counseling for rape trauma syndrome after the experience from the ER.She was semiconscious and felt as though they had raped her all over again. She is petrified of Doctors and I want to know if it was legal for them to perform this procedure (urine collection)? She was stable and they said she could have just slept it off but they took "precautions". Why was I not contacted? I could have told them not to touch her.. is right that her bf could consent?

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