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Medical Battery

By Janice G. Inman
January 29, 2008

Medical battery is generally defined as a touching that the patient has not consented to. This occurs when the care provider steps far outside the agreed-upon scope of treatment or, more infrequently, omits to obtain any consent to treatment at all. The New Jersey Supreme Court defined the concept in Perna v. Pirozzi, 92 NJ 446 (1983): 'If the claim is characterized as a failure to obtain informed consent, the operation may constitute an act of medical malpractice; if, however, it is viewed as a failure to obtain any consent, it is better classified as a battery.'

If bodily harm occurs as a consequence of the unconsented-to act or omission, and it would not have happened absent the unwarranted touching, the question of damages may be fairly straightforward. But what happens if the injury suffered following an originally authorized medical procedure is only partially attributable to the unconsented touching? Or, what if there is damage, but it is a foreseeable risk of all procedures of the type and cannot be said to have been caused by the failure of consent?

Depending on the circumstances of the case and the jurisdiction, the injured patient may be able to recover for some or all injuries that occurred as a result of the procedure ' in some states, even where no negligence can be proven.

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