You may have heard of informed consent cases, which are a type of medical malpractice claims that arises out of the preoperative counseling session that takes place prior to a surgery. Informed consent is required before every surgical procedure. The surgeon has a duty to discuss all of the material risks, benefits and options before subjecting a patient to anesthesia and surgery. A slightly different claim is the claim of medical battery. A medical battery occurs if the physician exceeds the scope of informed consent or performs a procedure that is altogether different than the one for which consent was provided.
Medical battery is defined as a nonconsensual touching by a healthcare worker. Obvious cases of medical battery exist when a physician touches, gropes or performs an unnecessary exam that involves a violation of the patient’s right to control his/her own body. Medical battery can also take place when a physician performs a surgery without obtaining the patient’s authorization. For instance, if a physician performs a hysterectomy and, without prior authorization, also removes the patient’s ovaries, this would be an example of medical battery. The physician, without consent, “touched” the patient by removing the ovaries.
An exception or defense to a claim of medical battery arises in the setting of a medical emergency. If a physician is confronted with a medical emergency and cannot ask the patient for consent because the patient is under anesthesia or unconscious due to shock or trauma, the physician is permitted to perform a procedure that he/she thinks is in the best interest of the patient.
One benefit of a claim for medical battery is the prospect for punitive damages. Damages is the term that medical malpractice lawyers use to describe the harms and losses that are caused by the physician’s battery. Harms and losses can be either economic, like loss of wages or medical expenses, or noneconomic, like pain and suffering, disability or disfigurement. Compensatory damages, unlike punitive damages, are meant to compensate the patient, not punish the physician. Punitive damages are a separate category of damages that are meant to punish the surgeon. Just like physical battery involves non-consensual touching that results in harm, medical battery has the same impact, so punitive damages are meant to deter the conduct in the future.
In some states, a lawsuit will be bifurcated into two damages phases. In the first phase, the jury will award compensatory damages for the harms caused by the physician’s negligence or battery. If it is proven in the first phase that the physician was reckless, or acted with intent to harm or in a way that showed a conscious disregard for the patient’s health and safety, then the case will proceed to the second phase, which involves the award of punitive damages. In the second phase, the medical malpractice lawyer will put on evidence of the physician’s net earnings or a hospital’s profits from which a jury can determine an amount that would be a reasonable punishment for the negligent hospital or physician.
You should discuss your options with an attorney like a medical malpractice lawyer from a law firm such as Mishkind Kulwicki Law Co., L.P.A. to see whether you could be eligible to receive damages in a medical battery case.