Virginia: Medical Malpractice – A Lawyer’s Battery

On February 2, 2017, the Virginia Supreme Court drew “the boundary that separates a technical [medical] battery from an action for negligence” in a medical malpractice case, Mayr v. Osborne, No. 151985, at 3. As a threshold matter, it reaffirmed: “The tort of battery and the tort of negligence both provide avenues of recovery to compensate persons who have been wronged by the actions of a health care provider.” Id. at 5 (emphasis added).

Mayr recounted: “Our precedent thus establishes that a technical battery is present where (1) the patient placed terms or conditions on consent for a particular procedure, and the doctor ignored those terms or conditions; (2) the physician intentionally performed an additional procedure beyond the procedure the patient consented to; or (3) the physician intentionally performed a different procedure or one that differs significantly in scope from the procedure for which the patient provided consent.” Id. It then delineated what a medical malpractice plaintiff must prove to establish the intentional tort of battery. Id. at 7-8.

Mayr pronounced: “To be liable for battery, the defendant health care provider must have done two things. First, the health care provider must have intentionally made physical contact with the patient and, second, that physical contact must have been deliberately against the patient’s will or substantially at variance with the consent given. The question of authorization or consent is further broken down into two related issues, consent for the procedure and the related question of informed consent, that is, whether the health care provider disclosed the risks associated with a particular procedure.” Id. at 8.

Regarding the first prong of authorization or consent for a battery claim, Mayr explains that the “facts must be sufficient to permit an inference that the physician intended to disregard the patient’s consent regarding the procedure or the scope of the procedure.” Id. at 9. Regarding the second prong for a battery claim, the facts must show that the physician did not “inform the patient of the nature of the procedure,” i.e., “what the doctor purposes to do to him;” not that the physician just failed to disclose certain risks appropriately, which standard of care issue is “quintessentially an action for negligence which will ordinarily call for expert testimony”. Id. at 11 (italics in original).