Supreme Court of Virginia Differentiates Technical Battery from Negligent Breach

February 20, 2017

In a decision released February 2, 2017 in Mayr, et al. v. Osborne, the Supreme Court explained the difference between a lawsuit for “battery” in the medical malpractice context versus a lawsuit for medical negligence, thus narrowing the scope of potential battery claims. The Supreme Court reversed a trial court’s determination that a surgeon who mistakenly operated on the wrong level of a patient’s spine could be sued for a battery. With its decision, the Court drew a clear boundary separating technical battery from negligence. This ruling further illustrated that allegations regarding a failure to disclose certain risks constitutes a failure to obtain informed consent claim, not a battery claim.

The case arose from an orthopaedic surgeon’s mistaken fusion of the wrong level of a patient’s spine during a posterior cervical foraminotomy and fusion. The operative report indicated that the surgeon believed he was operating on the correct level of the spine. But post-operative X-rays revealed the surgeon fused the wrong level, and he later performed a corrective surgery. The patient subsequently died for reasons unrelated to this case.

The plaintiff’s wife and administrator of his estate filed suit alleging the surgeon was negligent and committed a battery. She later nonsuited her claim for negligence and proceeded solely under the theory that surgery on the wrong level of the spine went beyond the scope of consent given and consequently constituted a battery. She offered no expert testimony to support her claims.

At trial, the surgeon testified that he informed the patient that there is a risk that hardware can be misplaced, requiring future revision. The plaintiff denied receiving this information, but the surgeon also presented expert testimony that operating at the wrong level is a recognized complication for the procedure. The surgeon moved to strike the plaintiff’s case twice, arguing that she failed to produce an expert to testify concerning the standard of care. But the court entered judgment for the plaintiff.

The Supreme Court held that without evidence of intentional tortious conduct, a cause of action for negligent performance of a consented medical procedure may not be maintained as a cause of action for the intentional tort of battery. Instead, the plaintiff must prove that the physician was negligent under the relevant standard of care. The Court held, a physician is not liable for battery unless the plaintiff establishes that the physician performed an operation against the patient’s will or substantially divergent from the consent given.

With this decision, the Court demonstrated what a plaintiff in a medical malpractice case must prove to establish the intentional tort of battery. To be liable for battery, the Court explained that 1) the health provider must make intentional physical contact with the patient, and 2) the physical contact must be deliberately against the patient’s will or substantially at variance with the consent given. Here, the Court determined that whether the patient’s consent was “informed,” is a standard of care issue that sounds in negligence rather than battery.

A copy of the opinion is available here. If you have any questions about the Mayr decision, medical malpractices claims, or how these issues impact your practice, please contact a member of Hancock Daniel’s Medical Malpractice Defense team.

The information contained in this advisory is for general educational purposes only. It is presented with the understanding that neither the author nor Hancock, Daniel & Johnson, P.C., PC, is offering any legal or other professional services. Since the law in many areas is complex and can change rapidly, this information may not apply to a given factual situation and can become outdated. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice. Under no circumstances will the author or Hancock, Daniel & Johnson, P.C., PC be liable for any direct, indirect, or consequential damages resulting from the use of this material.

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