Almost all claims against doctors or other medical providers are going to fall under the umbrella of medical negligence. But there are some types of claims which are defined as medical battery instead of medical negligence. The law generally defines three types of medical battery claims which fall outside of medical negligence. One type occurs when a physician performs a medical procedure on a patient when no consent has been obtained from the patient. This form of battery excludes a situation when the doctor performs an emergency procedure to save the life of the patient or to prevent serious harm to the patient. The likelihood of a patient having this type of medical battery claim is very remote, but it can exist.
Medical Battery in California
Another form of medical battery is based upon a violation of conditional consent. A patient indicates to the physician if one thing is found or occurs during the procedure, then the doctor is authorized to perform a further procedure. The doctor proceeds with the secondary procedure without having the initial condition occur. An example of this is that if the doctor finds damage to an organ, then the patient gives permission to remove the organ. When the doctor performs the procedure, the organ is not found to be damaged, but the doctor goes ahead and removes the organ anyway.
The more likely medical battery claim comes from a situation where the patient gives consent to perform one procedure, but the physician on his or her own performs a substantially different procedure than that which was consented to by the patient. Once again, there is the exception to rule when the life or immediate health of the patient is in jeopardy and the physician believes the deviation is necessary to protect the patient. This subject belief can be challenged by the patient.
Prove Your Medical Battery Claim
A patient who believes he or she suffered a medical battery must establish the following elements to prove the claim of medical battery:
That the doctor performed the procedure without any consent,
that the patient consented to one procedure by the physician performed a substantially different medical procedure;
That the patient was harmed; and,
That the physician’s conduct was a substantial factor in causing the harm.
It should be noted that a patient can give consent in writing, by conduct or orally, so all these factors need to be considered.
Examples of Medical Battery
If a woman needs to have fibroids removed from her uterus and she provides consent for a myomectomy (procedure to remove fibroids and preserve the uterus), but the doctor believes she would be better off with a hysterectomy, so he performs a hysterectomy instead of the myomectomy, contrary to the patient’s desires. Another example is when a doctor receives consent to remove a small scrotal mass for testing, but the doctor decides, without testing the mass that the patient has cancer and removes substantial tissues from the patient’s penis, thereby leaving him impotent. After testing, the mass is found to be benign and not malignant cancer. A final example is when a plastic surgeon recommends breast implants during a procedure but the patient indicates that she does not want implants. During the surgery, the doctor goes ahead and performs a breast enlargement procedure. (Each of these are actual cases.)
Medical battery is very different from medical malpractice, so the courts have indicated that the medical malpractice limit on general (non-economic) damages does not apply to a medical battery case. One additional advantage for the patient who has suffered harm from a medical battery is that if the act of the physician is clearly not consistent with the consent given, a medical expert witness is not required to testify on this issue of battery, even though it is generally good to have that added benefit at trial.
Our Rancho Cucamonga, California Medical Malpractice Attorneys Are Here to Help You
If you believe you or a loved one suffered significant damages due to a doctor’s medical battery or negligence, you need to promptly consult with a medical malpractice attorney. At the Inland Empire Law Group we have significant experience in handling medical battery claims. Call today to determine if you have a legal right against a doctor or medical provider. Call now at 909-481-0100 for an initial over the phone review of your case, and for a possible free consultation with our Medical Malpractice Lawyers.