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Court rules misplaced surgery is not battery

surgery_mainThe Supreme Court of Virginia has rerouted a short cut to recovery for some surgery patients.

The court ruled this month that a surgeon who mistakenly operated on the wrong level of a patient’s spine cannot be sued for battery. The ruling allows only a negligence claim for such circumstances, requiring expert testimony to prove a breach of the standard of care and causation of damages.

The surgeon’s lawyer said the ruling eliminates the “outdated” concept of a “technical battery” that dispensed with the ordinary requirement of intent.

The patient’s lawyer said the decision may have knocked the legs from under some pending surgery claims.

“For all practical purposes, the decision gets rid of battery in Virginia medical malpractice cases,” said Gary B. Mims of Fairfax.

Back pain case

The patient, Michael Osborne, had been a victim of an auto accident, the lawyers said. He settled with the defendant driver and then addressed his claim against his surgeon.

The doctor – Richmond neurological surgeon Matthew Mayr – performed a posterior cervical foraminotomy and fusion to try to relieve Osborne’s back pain.

X-rays after the surgery showed the doctor had fused the wrong level. He had operated on the C6-C7 level instead of C5-C6.

Mayr informed Osborne of the error and then performed a corrective surgery.

Osborne later died of unrelated causes.

His widow sued Mayr for negligence and battery. She dropped the negligence claim and went forward on just the battery claim.

The widow’s trial arguments focused on the scope of consent, but Mayr argued the facts failed to establish a battery. Hearing the case without a jury, Henrico County Circuit Judge Richard S. Wallerstein Jr. found in favor of the widow.

The judge’s award was $150,000. The judgment, after a set-off for recovery from the auto liability claim, was $50,000, according to Mayr’s lawyer, J. Jonathan Schraub of McLean.

Intentional tort

The Supreme Court reversed the battery judgment Feb. 2 in Mayr v. Osborne, Adm’r (VLW 017-6-004).

“Such an expansive conception of a technical battery would effectively jettison the required showing of intent,” wrote Justice Stephen R. McCullough for the unanimous court.

Mayr said the trial court’s ruling would impermissibly extend the scope of a “battery.”  He said he did not intentionally operate on the wrong level of the patient’s spine.

Osborne’s widow contended it was a case of battery because the surgery exceeded the scope of consent.

McCullough said prior Virginia Supreme Court cases failed to directly address a situation such as Osborne’s claim.

“Battery is different,” wrote McCullough, concluding that battery and negligence are distinct theories of recovery with distinct elements of proof.

Expert testimony is ordinarily required to establish the standard of care in negligence cases. Not so in battery claims, the justice said.

“Surgeries and other procedures commonly involve the disturbance of, or even damage to, neighboring tissues. A surgery can yield tragic results or complications with even the utmost care by the surgeon,” McCullough said.

“The requirement of expert testimony to establish the standard of care ensures that the factfinder makes an informed decision concerning whether the physician’s actions fell within or violated the standard of care,” McCullough wrote.

Those principles “lead us to conclude that a physician is not liable for a battery unless the plaintiff establishes a prima facie case that the physician performed an operation ‘against the patient’s will or substantially at variance with the consent given,’” the justices said.

“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,” McCullough wrote.

As for Osborne’s surgery, the “evidence unequivocally establishes that Dr. Mayr did not intend any unpermitted contact and the plaintiff’s battery claim thus fails as a matter of law,” the court said.

The court also held that a claim of failure to disclose all possible risks of surgery should be measured by a negligence standard, not by the elements of battery.

“Failure to abide by the standard of care regarding disclosures is quintessentially an action for negligence which will ordinarily call for expert testimony,” McCullough wrote.

Game changer

The court’s ruling may undermine some pending medical claims, according to Mims, the lawyer for the patient’s widow.

“I know it’s causing lots of heartache for people,” said Mims.

Mims said Osborne’s widow is “out of luck,” since she narrowed her case to the battery claim. “I can’t go back and plead negligence,” Mims said.

The lawyer said he had heard from others who had jettisoned negligence claims to focus on battery. Intent is an unwieldy standard, he said.

Of doctors sued for malpractice, “maybe 99 percent are good doctors. They were negligent. They did something wrong,” Mims said. “It’s hard for me to imagine them ever intentionally exceeding the scope of consent,” he said.

Some lawyers are celebrating, said Schraub.

“It’s a significant ruling, there’s no question about that,” he said.

Elimination of the “technical battery” cause of action is a welcome development, Schraub said. The old rule allowed plaintiff’s lawyers to “bypass everything” and seek recovery without expert testimony, he said.

“That’s the way it ought to be because the legislature enacted a comprehensive act governing medical malpractice,” Schraub said.

Battery is “just not a feasible theory,” Schraub said. “Virtually every surgery is going to involve touching of different body parts,” he said.

Lawyers for both sides said the medical malpractice cap was not an issue in the case. They agreed the cap applied, regardless of whether a patient’s claim sounded in battery or negligence.

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