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Medical Malpractice Quiz
Is Unconsented Assistance Battery?
Lorne Sheren
Publish Date: October 10, 2007   |  Tags:   Medical Malpractice-Legal

A freestanding orthopedic surgical center schedules a 47-year-old man who injured his knee playing tennis to undergo anterior cruciate ligament reconstruction. The patient, a club champion for the past four years, is eager to be on his feet before the next tennis season.

 Case Points

  • After ACL reconstruction, a patient develops a wound infection that progresses into reflex sympathetic dystrophy.
  • He files suit, claiming he had been battered (touched without his consent) because a surgeon he had not consented to assisted in his case.

 Case Question

  • Does the unconsented substitution of another assistant represent a battery against the patient or a violation of informed consent?

The primary surgeon is a fellow club member with an excellent reputation in the community. The senior physician who'll be assisting him is a professor at the local medical school and a topnotch surgeon. He was the primary surgeon's attending when the surgeon was a resident, the "teacher who taught the teachers," in the surgeon's words. The patient is impressed with the quality of his surgical team and looks forward to retaining his club championship.

There's just one hitch, the surgeon tells the patient. The professor will arrive after surgery has begun, so the patient won't meet the assistant on the day of surgery. The surgeon offers his patient an appointment to meet the professor, but the patient declines. "Busy schedule," he says.

Things change on the day of surgery
Two seemingly unimportant things happen on the day of surgery. First, due to a last-minute conflict, the professor isn't available to assist. Second, the patient signs a routine pre-printed consent form containing a clause that authorizes the primary surgeon and "whomever he may designate as his assistants" to perform the procedure.

Intraoperatively, the procedure goes well. A fellowship-trained sports orthopedist assists the primary surgeon. Afterward, however, the patient develops a wound infection that, in a most unusual fashion, progresses into reflex sympathetic dystrophy, a condition of burning pain, stiffness, swelling and discoloration of the hand.

When the patient obtains his records, he discovers that the professor didn't assist in his surgery. Upset, he brings suit against the primary surgeon, the professor and the actual assistant, claiming, among other things, lack of consent, breach of contract and medical battery. He seeks both compensatory and punitive damages. The lower court dismisses the patient's case; he appeals.

Touched without his consent
The patient's argument before the appellate division might seem far-fetched, but here it is: Because an operation had been performed on him in a manner he had not consented to, he had been battered (touched without his consent) and therefore is entitled to compensation, even in the absence of damage that the battery caused.

The question for the appellate division to rule on is whether the unconsented substitution of another assistant represents a battery against the patient and whether it's right to judge the substitution of assistants as a violation of informed consent utilizing a negligence standard. How do you think the judges on the appellate panel ruled?

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