Medical battery is when a doctor or medical practitioner performs any procedure in a patient without the patient’s consent. Let me make it a breeze with an example. A patient is suggested myomectomy or removing fibroid in the uterus. The surgeon gets consent from the patient for a myomectomy.  Later, the surgeon concludes that hysterectomy would be better in the case and goes ahead without the patient’s consent. This is a medical battery, and the patient could sue the surgeon.

You may get a doubt how come this case is not medical negligence. Medical negligence is an unintentional act or breach of duty by a medical professional which results in harm to the patient. However, medical battery emphasizes the rights of an individual towards the treatment he receives.

It is absolutely plausible that a medical professional who performs therapy on a mentally competent patient without his consent could be held criminally accountable. It is a medical battery to force even beneficial care on an uninformed patient.

A medical battery claim should have the following elements proved

  1. The act
  2. Intent
  3. Actual Cause
  4. Proximate Cause
  5. Touch/ Contact
  6. Harmful or offensive

In medical battery litigation, the plaintiff must establish any of the below-mentioned arguments.

  1. The medical procedure was performed without the consent of the plaintiff
  2. The procedure was not an emergency one
  3. No consent was obtained from the bystander authorized by the plaintiff
  4. The procedure was performed against the will of the plaintiff
  5. The procedure differed significantly from the consent obtained

The claim could be either civil or criminal depending upon the specific ground of the case. The law for medical battery varies from one state to another

Medical Malpractice vs. Medical battery

Medical malpractice is an unintentional act caused because of the negligence or breach of duty of any medical professional. However, the medical battery is an intentional act that occurred without the consent of the patient.

Proving the intent of the medical professional is the fundamental aspect of a medical battery claim. The plaintiff should establish that the act was intentional and not negligent. However, there is no need to prove that the act resulted in damage to the plaintiff.

Unlike medical malpractice claims, it is not essential to have any damage to pursue a medical battery lawsuit. As a result, the patient who has not been damaged and is actually better off after the procedure could file a medical battery claim.

In a medical battery claim, the restriction on non-economic damages does not apply like that in a medical malpractice litigation

If both medical malpractice and medical battery are present in a case, the court will evaluate damages and awards depending on the facts.

Legal Consequences of a Medical Battery

Though physical damages are not really required to claim for medical battery, physical damages may help the claim process. If the plaintiff sustains any physical damages or harm, it could be claimed. Physical injury may cover cuts, bruises, or physical pain. It should be noted that even when the physical damages ended up in a beneficial result to the plaintiff, the claim is still possible.

Non-economic damages could also be claimed in the medical battery. The plaintiff could claim for the anxiety, loss of enjoyment, inability to perform day-to-day activities and mental shock endured due to the procedure.

Common Defense Points in a Medical Battery Claim

  • The plaintiff was informed about the procedure. This could be established with the medical documents of the patient
  • The physician performed the procedure under a medical emergency
  • The patient was not conscious or incapacitated to give consent for the medical procedure
  • The physician performed a deviation during the medical procedure to protect the patient. However, this could be disputed by the patient
  • The bystander has rendered consent for the procedure

Role of Informed Consent in a Medical Battery Claim

Medical treatment is always a race between risks and benefits. Especially when it comes to surgical procedures, weightage is very crucial. The physician should explain to the patient the pros and cons of the procedure with all the possible side effects and complications.

Informed consent is the document duly signed by the patient or his bystander stating that they are aware of the procedure to be performed by the medical professional. Informed consent is very crucial not just for the patient but also for the physician to avoid being held for med mal or medical battery claims.

When a physician plans a surgery or any procedure as part of the treatment, informed consent should be obtained from the patient. If there is any deviation from the plan, it should be communicated with the patient and another informed consent should be obtained. If the patient is not in a mental state to give consent, the bystander should be contacted.

Final Thoughts

Every patient has the right to know how the doctor plans to proceed with his treatment. Unless it is an emergency, the physician should not perform any procedure without the consent of the patient. A personal injury attorney experienced in medical battery claims could help the victim to prove the claim by exhibiting substantial evidence. Medical charts of the plaintiff would help the attorney in the claim. Testimony from an expert witness would help in the argument.