Medical Battery

by Leona Egeland Siadek, Vice President, Government Relations

Medical battery is defined as the intentional violation of a patient’s rights to direct his or her medical treatment. No injury or negligence is necessary for a finding of medical battery. Battery involves an unauthorized touching of another person. Medical battery occurs when a patient is treated without informed consent. Most commonly, battery charges are alleged where there is a dispute over whether the patient agreed to treatment or refused treatment. The agreement or refusal of treatment can be made directly with the patient, through an advance directive, or through a health care proxy.

Even when the treatment involves a life-saving procedure or when a seemingly small contact occurs, it can be deemed offensive or harmful. Laws governing medical battery vary from state to state in the same way that laws governing medical malpractice vary. The doctor does not mean to cause harm, but if the treatment is without consent, it is said to be imposed against the patient’s will.

Union Pacific Railway Co. v. Botsford (1891) established the “right of every individual to the possession and control of his own person.” Schloendorff v. Society of New York Hospital (1914) was an early case establishing consent to treatment in a hospital. A woman consented to examination under ether but had not consented to surgery. The doctor proceeded to remove a tumor.

More recently, two cases, In re Quinlan, 70 NJ 10 (1976), and Cruzan v. Director, Missouri Department of Health (1990), established the right to refuse unwanted medical treatment.

In some instances, consent to a particular treatment may also imply consent to all procedures necessary for achieving the agreed-upon end. Consent may also be implied when the patient is in danger and it is impossible to obtain consent. Again, this varies from state to state.

Advance directives have an important impact on how courts evaluate consent. Failure to honor an advance directive will now automatically authorize civil actions in some states.

In medical battery cases, the plaintiff must prove some damage resulting from the harmful and unauthorized procedure. Because medical battery is not malpractice, the courts in several states are looking into the matter of whether the statutory damages cap for medical liability should apply in cases of medical battery.

The top malpractice/battery verdict in Virginia in 2004 was for $1.5 million (Gorbea v. Palazzo). It was judged that the plaintiff now has permanent chronic pain syndrome after receiving an anesthetic procedure that he did not authorize.

As the number of medical battery cases grows, even more emphasis will and should be placed on thorough and ongoing consent to treatment.

Federal Issues

In the Senate, S.243 (John Ensign, R-NV) and S.244 (Judd Gregg, R-NH), two medical liability bills that mirror successful liability reform statutes in California and Texas, have not been scheduled for a hearing to date. These bills were both introduced early in the year. Likewise, H.R.2580 (Phil Gingrey, R-GA), a bill called the Health Act of 2007, has not been set for hearing. This bill mirrors H.R.5, a medical liability reform bill that passed the House in prior sessions.

A bill that would provide funds for demonstration projects utilizing health courts as an alternative for medical liability cases has again been introduced in the form of S.1391 (Tom Coburn, R-OK).

The topic of electronic medical records (EMRs) has garnered significant congressional interest this session. S.1455 (Sheldon Whitehouse, D-RI) proposes establishing a nongovernmental nonprofit corporation that would develop a national health information technology system. S.1693 (Edward Kennedy, D-MA) proposes a national health information technology system to give the public access to information about health care quality and costs. Congress Member Patrick Kennedy (D-RI) is also working on a draft bill to create incentives for doctors to encourage patients to set up and use personal electronic health records.

The Doctors Company will continue to actively monitor all proposals as the debate continues over federal standards for EMRs and the criteria for who may have access to records.

State Issues

Several bills with negative implications were just barely rejected in state legislatures. Votes were close due to the election of many opponents of tort reform in the 2006 elections and because of renewed efforts by the plaintiffs’ bar to exploit that election advantage.

In Oregon, a bill that proposed establishing both first- and third-party liability was rejected, as was a bill to set up a state liability fund. Victories for tort reform coalitions also took place in Florida and Texas, where bills to erode the laws in those states were successfully turned back.

In Washington, grassroots lobbying efforts were successful in defeating several bad bills. One bill, however, was signed by Governor Chris Gregoire (D). Effective July 22, 2007, S.B.5726 provides a statutory right of action to first-party claimants alleging unfair insurance practices, specifies that treble damages are available at the court’s discretion, and provides that attorneys’ fees for a prevailing claimant are mandatory.

Oklahoma Governor Brad Henry (D) signed a new law allowing charitable health care providers who render professional services gratuitously to be exempt from legal liability (S.B.930).

The North Carolina legislature unanimously approved a bill that limits total awards to $1 million for medical liability cases in which both parties agree to binding arbitration. The bill is currently pending signature by Governor Michael Easley (D).

North Dakota Governor John Hoeven (R) signed H.B.1333, a bill providing that expressions of sympathy, compassion, or commiseration to a patient are not admissible as evidence of liability.

Georgia Governor Sonny Perdue (R) signed S.B.182, a bill that establishes the objective medical criteria that must be met in order to bring an asbestos or silica claim.

Maryland Governor Martin O’Malley (D) signed S.B.309. The bill affects the statute of limitations law for filing a lawsuit. A new civil legal action can be commenced if the prior action for the same cause was started without the statute of limitation period applying and if the action was dismissed without prejudice.

Nevada Governor Jim Gibbons (R) signed A.B.4, which will take effect on October 1, 2007. This new law ensures immunity to obstetrician/gynecologists who volunteer to provide emergency delivery services.

In California, there were no legislative challenges to MICRA this year, but there have been considerable lobbying and public relations efforts by tort opponents and reformers alike.

Candidates in the 2006 elections were heavily pressured by the trial lawyers. Candidates expressing support for MICRA often found themselves confronted by opposition not only from trial lawyers but also from unions, conservation groups, and others for whom medical liability reform is not an obvious priority.

Filmmaker Michael Moore joined the anti-MICRA chorus along with negative news stories that aired on CBS affiliates in Los Angeles and appeared as full-page ads in USA Today.

The Doctors Company will continue to work hard to elect and educate a pro-MICRA majority in the legislature and has already begun interviewing legislative candidates for the 2008 primary election.