Motion for Summary Adjudication by Defendant, Martin O’Toole, M.D., filed on 5/17/18, is GRANTED in part and DENIED in part.
Defendant has not met his burden of establishing he is entitled to adjudication of the 2nd cause of action for battery. Cal. Code Civ. Proc. § 437c(p)(2).
The motion for adjudication of the 2nd cause of action for battery is DENIED. A claim for medical battery involves the performance of a procedure without Plaintiff’s consent. It is distinct from professional negligence. Saxena v. Goffney, 159 Cal. App. 4th 316, 324-325 (Cal. App. 4th Dist. 2008).
The battery claim is different from lack of informed consent, the latter of which sounds in negligence. Id at 324.
Plaintiff alleges she “consented to a medical procedure” using a silicone implant. Defendant used saline. Complaint page 5. Defendant contends the procedure would have been the same had the doctor used silicone versus saline. UF 56. Plaintiff is not alleging she did not consent to the procedure general
Hearing Date
July 31, 2018
Type
Med Malpractice (Drs & Surgeons) (General Jurisdiction)
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Motion for Summary Adjudication by Defendant, Martin O’Toole, M.D., filed on 5/17/18, is GRANTED in part and DENIED in part.
Defendant has not met his burden of establishing he is entitled to adjudication of the 2nd cause of action for battery. Cal. Code Civ. Proc. § 437c(p)(2).
The motion for adjudication of the 2nd cause of action for battery is DENIED. A claim for medical battery involves the performance of a procedure without Plaintiff’s consent. It is distinct from professional negligence. Saxena v. Goffney, 159 Cal. App. 4th 316, 324-325 (Cal. App. 4th Dist. 2008).
The battery claim is different from lack of informed consent, the latter of which sounds in negligence. Id at 324.
Plaintiff alleges she “consented to a medical procedure” using a silicone implant. Defendant used saline. Complaint page 5. Defendant contends the procedure would have been the same had the doctor used silicone versus saline. UF 56. Plaintiff is not alleging she did not consent to the procedure general