Medical Battery in New York

Background

“[T]he courts have acknowledged that a doctor who performs a medical procedure on a patient without any consent, in the absence of an emergency, is liable for battery.” (Thaw v. N. Shore Univ. Hosp. (2015) 129 A.D.3d 937, 943.)

How to Structure the Pleading

“The elements of a cause of action for battery are bodily contact, made with intent, and offensive in nature.” (Zgraggen v. Wilsey (1994) 200 A.D.2d 818, 819.) To establish a battery... it need only be shown that the defendant made bodily contact with the plaintiff and that the contact was either offensive in nature (see, Zgraggen v. Wilsey, 200 A.D.2d 818) or without his or her consent. (Messina v. Matarasso (2001) 284 A.D.2d 32, 34-35.)

“An action for battery may be sustained without a showing that the actor intended to cause injury as a result of the intended contact, but it is necessary to show that the intended contact was itself ‘offensive,’ i.e., wrongful under all the circumstances.” (Zgraggen v. Wilsey, 200 A.D.2d 818, 819; see, Villanueva v. Comparetto, 180 A.D.2d 627.)

Lack of consent is considered in determining whether the contact was offensive. (Zgraggen v. Wilsey, supra.) The intent that must be shown is the intent to make contact. (Messina v. Matarasso (2001) 284 A.D.2d 32, 35-36.) Thus, “once intentional offensive contact has been established, the actor [is not liable for negligence] even when the physical injuries may have been inflicted inadvertently... a lack of care does not convert the action from intentional tort to negligence.” (Messina, id.)

Failure to Disclose Risks of Procedure

Viewing the failure to make a full disclosure of the risks of the procedure and the alternate forms of treatment as negligence rather than as a battery, it should also be noted, is more favorable to the health care provider in terms of imposing a greater burden of proof on the plaintiff to establish liability. (Messina v. Matarasso (2001) 284 A.D.2d 32, 34 citing Dobbs, The Law of Torts, § 250, at 654 [2000]; see also, Cobbs v. Grant, supra, 8 Cal3d at 240.)

Negligence vs. Battery Distinction

Under a negligence theory, a plaintiff must prove a failure to disclose a reasonably foreseeable risk, that a reasonable person, so informed, would have opted against the procedure, an actual injury and that the procedure was the proximate cause of the injury. (See, id.; see also, Eppel v. Fredericks, 203 A.D.2d 152; Public Health Law § 2805-d.) To establish a battery, however, it need only be shown that the defendant made bodily contact with the plaintiff and that the contact was either offensive in nature (see, Zgraggen v. Wilsey, 200 A.D.2d 818) or without his or her consent (see, id.; Villanueva v. Comparetto, 180 A.D.2d 627, 629).

Failure to Obtain Informed Consent

The modern approach ... views the failure to obtain the informed consent of a patient as "a form of medical malpractice based on negligence." (Messina, supra, 284 A.D.2d at 34.)

This approach is grounded in common sense. As the California Supreme Court noted in Cobbs v. Grant (8 Cal.3d 229, 240), when the doctor obtains consent to a certain procedure and an undisclosed complication arises, what occurs is not necessarily an intentional deviation from the consent given but rather a deviation from the duty to disclose the information that a competent physician would have provided. (Id.)

On the other hand, when a patient agrees to treatment for one condition and is subjected to a procedure related to a completely different condition, there can be no question but that the deviation from the consent given was intentional.

The Court’s Decision

“Cases where a procedure is completely unauthorized . . . must be distinguished from cases where a patient consents to a procedure without being fully aware of the risks and consequences involved.” (Messina v. Matarasso (2001) 284 A.D.2d 32, 34 citing Oates v. New York Hosp. (1987) 131 A.D.2d 368 at 369.)

An action for battery may be sustained without a showing that the actor intended to cause injury as a result of the intended contact, but it is necessary to show that the intended contact was itself "offensive", i.e., wrongful under all the circumstances. (Zgraggen v. Wilsey (1994) 200 A.D.2d 818, 819.) Lack of consent on the part of plaintiff is an element to consider in determining whether the contact was offensive, but it is not ... conclusive. (Id.)

Recognizing that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his [or her] own body”, the courts have acknowledged that a doctor who performs a medical procedure on a patient without any consent, in the absence of an emergency, is liable for battery. (Thaw, supra, citing Schloendorff v. Society of N.Y. Hosp., 211 N.Y. 125, 129–130; see Laskowitz v. CIBA Vision Corp., 215 A.D.2d 25, 27.)

Timeline

“A claim for battery must be commenced within one year under CPLR § 215, while a claim alleging medical malpractice, insofar as relevant, must be brought within 2 1/2 years “of the act ... complained of” under CPLR 214-a. Under traditional tort law, medical treatment beyond the scope of a patient's consent was considered an intentional tort or a species of assault and battery.” (Messina, supra, 284 A.D.2d at 34.)