By Al Anthony Mercado, Esq., and Tammie Smeltz
Under traditional tort law, medical treatment beyond the scope of a patient’s consent was considered an intentional tort or a form of assault and battery1. However, the modern approach views the failure to obtain informed consent from a patient as “a form of medical malpractice based on negligence2.”
The distinction between battery and lack of informed consent in present-day professional liability cases boils down to one word: intent. Intentional physical contact with another person without that person’s consent in the context of medical care constitutes the intentional tort of battery.
For example, when a patient agrees to treatment for one condition and is subjected to a procedure related to a completely different condition, courts have held that there was no question that the deviation from the consent given was intentional. The fact that a plaintiff does not claim that the defendants acted intentionally in inflicting injuries and pain does not alter the conclusion that it constitutes intentional battery. It is the intent to make unauthorized or offensive contact, rather than to do harm, which establishes battery. Notably, a claim for the intentional tort of battery must be commenced within one year of the battery.
On the other hand, with physical contact in the context of medical care, the failure to disclose the foreseeable risks, benefits and alternatives (including no treatment) constitutes a negligent lack of informed consent. According to Public Health Law 2805 d(1), “lack of informed consent” is defined as “the failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical, dental or podiatric practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation.”
There are four situations where a physician’s disclosure of information to a patient and the patient’s informed consent is not required:
- The risk not disclosed is too commonly known to warrant disclosure.
- The patient assured the physician that he or she would undergo treatment regardless of any risks involved or told the physician that he or she did not want to be informed of the risks involved.
- It was not reasonably possible to obtain consent from the patient.
- The physician used his or her reasonable discretion in not disclosing certain information in the belief that disclosure could possibly adversely and substantially affect the patient’s condition.
Notably, unlike a claim for the intentional tort of battery, a claim for lack of informed consent must be commenced within two years and six months of the act, omission or failure complained of or last treatment.
It bears noting that in professional liability cases, a plaintiff can allege both battery and lack of informed consent. This is especially true if the plaintiff failed to timely commence the case for battery within one year of the act. Another reason for alleging both is to inflame a potential jury and inflate a potential damages award.
It also bears noting that generally, there is no insurance coverage for the intentional tort of battery under the terms and conditions of most professional liability insurance policies.
The following is a case study wherein both a lack of informed consent and battery were alleged in the complaint.
The patient/plaintiff in this matter was a then 60-year-old male with a past medical history significant for rising PSA, BPH with bladder outlet obstruction, small umbilical hernia and small inguinal hernia. He was referred to the MLMIC-insured defendant urologist by his primary care physician due to an elevated PSA. Additionally, the plaintiff’s family history was significant for both kidney and prostate cancer. The plaintiff’s PSA levels increased from 2 to 3.9 to 4.1 over a two-year period.
The MLMIC-insured defendant-urologist saw the patient and ordered an MRI which showed suspicious 9 mm lesions in the peripheral zone bilaterally. Biopsies were taken and revealed adenocarcinoma of the prostate with a Gleason’s 3+4 equals 7 and 3+3 equals 6. A CT scan was taken as well and showed bilateral inguinal hernias. A discussion was held with the plaintiff and his wife regarding a robotic prostatectomy, as well as the potential need for adjuvant radiotherapy depending on the extraprostatic spread of the disease. The plaintiff executed a consent for the prostatectomy, but there was no discussion regarding his asymptomatic umbilical hernia during this pre-operative visit.
The plaintiff underwent a robotic-assisted laparoscopic prostatectomy via the da Vinci system with bilateral pelvic lymph node dissection and an umbilical hernia repair. The surgery was uneventful. However, the urologist decided to repair the umbilical hernia because it was closely adjacent to the location of the Veress needle placement and subsequent placement of the midline trocar insertion. Two stitches were used to repair the hernia. On post-op day one, the plaintiff had an elevated WBC which was resolved with Cipro. He complained of abdominal pain, distension and incontinence. A CT scan was ordered and showed an ileus. He was discharged the next day with a foley. He was in stable condition. The pathology from the surgery revealed T3a, N0 and Gleason 4+3 prostate cancer with perineural invasion and lymphovascular invasion, extraprostatic capsule extension and positive margins of less than 1 mm.
The patient underwent a second opinion regarding further treatment and eventually received adjuvant radiotherapy.
The plaintiff continued to treat with his urologist for a few months after the surgery. He complained of mild abdominal pain around the incision site, but his incontinence had improved. An ultrasound was ordered and read as normal. A CT scan was ordered and showed a small fat-containing umbilical hernia. He also had a seroma. This was the last time the defendant-urologist saw the plaintiff.
The plaintiff began treatment with a surgeon who initially recommended physical therapy to address his abdominal pain. Eventually, the plaintiff underwent a repeat hernia repair this time using mesh. He made a full recovery.
The allegations, in this case, were negligent umbilical hernia surgery during prostatectomy resulting in pain, post-operative seroma, need for a repeat umbilical hernia surgery and scarring. Central issues in the case were the allegations of battery and lack of informed consent. These allegations were rooted in the defendant doctor’s alleged failure to obtain informed consent for the second surgery for the umbilical hernia.
The Motion to Dismiss
The defense position in the case was that since there was no consent for separate umbilical hernia surgery, those allegations constituted the intentional tort of battery and were not commenced within one year of the surgery. This being so, the defense argued that the allegations relative to umbilical surgery should be dismissed as untimely. The Plaintiff opposed the motion arguing that the allegations relative to the umbilical surgery were for informed consent, not battery and as such were commenced within two and a half years thus making them timely. The lower court denied the defense motion and an appeal was taken.
The Appellate Decision
On appeal, the Appellate Division Fourth Department upheld the lower court’s denial of the motion. The Appellate Division seemingly carved out an exception that while failing to obtain informed consent is battery, “forgetting” whether consent was obtained constituted a negligence claim subject to the longer time to sue. This decision illustrates the fact-sensitive nature of the battery versus lack of informed analysis as well as underscores the necessity of obtaining informed consent for each procedure performed on a patient.
MLMIC retained a urology expert to review this matter. The expert opined that the standard of care was met. He was concerned about the lack of informed consent for the umbilical hernia repair but felt the case was defensible. The expert felt it was a reasonable decision to address the umbilical hernia during surgery. Additionally, the hernia was very small and was repaired with two stitches. Mesh was not indicated. This expert opined that in some circumstances a surgeon would request consent from family members during a procedure. Because there was no major variance from the planned procedure, speaking with the patient’s wife was not required in this case.
Lastly, the expert opined those small hernias, such as the plaintiff’s in this case, can and do recur. That does not mean the surgery was negligent. Furthermore, seromas are a common post-operative complication and in no way are indicative of a negligent hernia repair.
Because our expert felt this case was defensible, the MLMIC-appointed defense attorney served a motion for summary judgment. The judge denied our motion and the case was scheduled for trial. The MLMIC-insured urologist and the group were the only named defendants.
The plaintiff’s expert witness was a general surgeon who did not have any experience in performing prostatectomies. Additionally, he testified he was a defendant in over ten medical malpractice cases and at the time of his testimony was working under a practice order issued by the Office of Professional Misconduct.
The MLMIC-insured defendant/urologist made an excellent and empathetic witness. He testified that he did not discuss a possible umbilical hernia repair with the patient pre-operatively because he was asymptomatic. During the prostatectomy, he felt the umbilical hernia needed repair because it could compromise the surgical incision closure. He was also concerned about incarceration or strangulation.
The jury deliberated on this case for 45 minutes and returned with a defense verdict.
When obtaining informed consent from a patient, a physician should understand:
- Informed consent must be obtained for each and every surgery or procedure performed on a patient. This is especially true when there are multiple distinct procedures performed during the same surgery. The failure to do so can result in a claim for the intentional tort of battery and/or a claim for lack of informed consent.
- Obtaining informed consent from a patient is a non-delegable duty. This means that the treating physician should have the informed consent discussion with the patient and give the patient the opportunity to ask questions.
- Although a signed consent form is helpful in defending a case, a patient’s signature is not conclusive evidence of an informed consent discussion. The signed consent document merely confirms that such a discussion took place. A witness to the consent document merely confirms that the patient read and understood the document, appeared to have capacity for the purpose of giving consent and signed the form.
- Obtaining an informed consent in New York State is only statutorily necessary for a non-emergency treatment, procedure, or surgery, or if the diagnostic procedure involves an invasion or disruption of the integrity of the body. A physician is not required to obtain informed consent if the procedure is an emergency and necessary treatment would be delayed by trying to obtain consent. If a physician is in doubt as to whether a diagnostic procedure falls into the second category, it is a good idea to err on the side of obtaining informed consent.
- The age of consent in New York is 18 years old. There are exceptions, which can be found here.
- The informed consent discussion should be documented separately in the record.
It is vitally important that a physician obtain informed consent from a patient as outlined above. The failure to do so could result in a claim for the intentional tort of battery.
 Schloendorff v. Society of New York Hosp., 211 N.Y. 125
 Spinosa v. Weinstein, 168 A.D.2d 32, 41, citing, e.g., Rigie v. Goldman, supra, 148 A.D.2d at 28-29; Oates v. New York Hosp., 131 A.D.2d 368.
Al Anthony Mercado, Esq. is a Managing Attorney of the downstate region of the law firm Mercado May-Skinner (MMS) and an employee of MLMIC Insurance Company.
Tammie Smeltz is the Content Marketing Manager at MLMIC Insurance Company.