An example of medical battery is

When patients allege that they were treated without informed consent, their legal claims can take the form of either battery or negligence. Battery is an intentional and offensive touching that violates the patient's bodily integrity. Negligence is the unintentional failure to exercise the appropriate standard of care in obtaining informed consent, which breaches the patient's autonomy in medical decision making.1 A recent Supreme Court case sheds light on this distinction and serves as a useful vehicle for military clinicians to enhance their understanding of informed consent and associated liability considerations.

EVOLUTION OF INFORMED CONSENT

Battery was the prevalent legal standard during the first half of the twentieth century. In the formative case, a patient at New York Hospital claimed that she had consented only to an examination, but undergone an operation while under anesthesia. Justice Benjamin Cardozo famously wrote, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages.”2

As medical science progressed, so too did a more nuanced understanding of the relationship between doctor and patient. The first judicial use of the term “informed consent” appeared in 1957, when a patient underwent an aortography and awoke with permanent paralysis, despite not having been apprised of any risks.3 The court ruled, “A physician violates his duty to his patient and subjects himself to liability if he withholds any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment.” Physicians may exercise professional discretion in discharging this obligation, “consistent with the full disclosure of facts necessary to an informed consent.”4

The shift from battery to a negligence framework underscored the true nature of most claims for lack of informed consent, which allege not that the physician touched the patient without permission but instead failed to provide sufficient information to legitimize the patient's treatment authorization. In defining the standard of disclosure, jurisdictions approach modern informed consent law in two different ways, with roughly half using each method. The physician-based (professional) approach evaluates what a reasonably prudent doctor would disclose, whereas the patient-based (materiality) approach looks to the informational needs of patients.1

Regardless of methodology, the doctrine of informed consent generally requires discussion of the nature of the proposed treatment, together with relevant risks, benefits, probabilities, and alternatives, to include no treatment at all.5 Neglecting to adequately impart these facts breaches the physician's fiduciary duty to the patient and may constitute grounds for a malpractice action.

While a lack of “informed” consent sounds in negligence, the absence of consent altogether can still give rise to a claim of medical battery. The essence of this allegation is that the procedure performed was completely unauthorized or in derogation of the patient's express wishes. Unlike the typical claim of faulty disclosure, courts may find that such cases are “more akin to an intentional unwanted touching” than to a failure to meet standard of care.6

U.S. LIABILITY FOR MEDICAL BATTERY

In its most recently concluded term, the Supreme Court squarely addressed the issue of U.S. liability for medical battery in the Military Health System. The plaintiff, a veteran named Steven Levin, underwent a cataract operation at the Naval Hospital in Guam and developed corneal edema because of surgical complications. He sued both the government and the ophthalmologist, alleging negligence in the performance of the operation and battery based on rescission of consent. Levin asserted that he had orally withdrawn his consent on two occasions immediately before surgery, but was ignored. He claimed to have voiced second thoughts because the operating room equipment “did not inspire confidence.” The obvious question of why Levin nonetheless submitted to the procedure was never addressed, because the ensuing litigation focused on whether he could even bring such a claim.7

The government moved to substitute itself as the sole defendant because the ophthalmologist was acting within the scope of his military duties and then successfully won summary judgment on the malpractice claim because Levin had failed to produce expert testimony in support of his position. Next, the government sought dismissal of the battery claim for lack of subject-matter jurisdiction. Levin accepted his loss on the malpractice issue, but appealed the termination of his battery action.7

The Federal Tort Claims Act (FTCA) authorizes civil suits against the government for most torts of federal employees acting within the scope of their employment. This waiver of sovereign immunity is subject to specified exemptions, among them the so-called “intentional tort exception” that precludes claims arising out of battery.8 Based on this exception, the government argued that the district court lacked jurisdiction to hear the case.

Levin countered that the Gonzalez Act, a separate statute that immunizes armed forces medical personnel from individual liability in the performance of their work, specifically states that the FTCA's intentional tort exception “shall not apply” to cases arising from the military health care context.9 Thus, the crux of the issue was what the Gonzalez Act does: Levin said it waives the government's immunity from battery claims, which is otherwise preserved by the FTCA. In the government's reading, it merely reinforces military physicians' personal immunity, rather than carving out new grounds for lawsuits against the United States.

In a unanimous decision, the Supreme Court gave effect to the plain meaning of the Gonzalez Act's words and determined that it negates the intentional tort exception in FTCA cases originating from military health care functions. Levin can proceed with his medical battery claim against the government.7

IMPLICATIONS OF THE DECISION

Although a matter of narrowly focused statutory interpretation, the Levin ruling underscores several key issues for military health care practitioners. First, it is important to note for providers' peace of mind that the Gonzalez Act remains a strong source of protection from individual tort liability; the disagreement centered on whether there was an avenue for relief against the government for medical battery. Supreme Court precedent has previously established that tort immunity for federal workers does not hinge on the plaintiff's ability to recover against the United States. The remedy under the FTCA is exclusive, regardless of whether it is actionable.10

Relatedly, the case sheds light on the nature of medical battery as a tort uniquely rooted in clinical practice. Both immunity under the Gonzalez Act and coverage under the FTCA are predicated on the federal employee acting within the scope of such employment.8,9 Although medical battery is a separate cause of action from malpractice, it is very closely related to the more routine negligence claims that arise in the practice of medicine. As an example of this confluence, Levin's dual allegations of malpractice and battery stemmed from the same surgery, in which the ophthalmologist was undoubtedly present in his official capacity. Conversely, the Supreme Court made clear at oral argument that a nonmedical battery that happens to be committed in a medical setting, such as sexual assault on a patient, would fall outside the scope of employment and eviscerate any personal immunity of the assailant.

Lastly, Levin's allegations provide a useful reminder that is too often overlooked in the harried schedule of clinicians: the informed consent form documents informed consent but does not constitute it. Physicians should adhere to local policy on which procedures require written consent while keeping in mind that the resulting paperwork merely memorializes a substantive discussion. Although Levin had signed a consent form, consent remains a voluntary choice that may also be voluntarily withdrawn on further reflection. Informed consent is a dynamic process of communication between doctor and patient that is encapsulated, but not displaced, by a signature. When patients make statements that appear to undermine their previous decisions, it is vital both to document such incidents thoroughly in the medical record and, wherever possible, to reengage in the informed consent process regarding the agreed-upon treatment strategy.5

Although Levin's signed consent form provides evidence of his choice to proceed with surgery at that time, whether or not he later orally withdrew that consent is a question of fact for the court. The Supreme Court's decision to allow Levin's medical battery case against the government to proceed means that this question is now ripe for litigation.

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Sanborn v Zollman, 40 F App'x 916 (6th Cir 2002)

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Available at

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accessed August 27, 2013

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Author notes

1

The views expressed are those of the author and do not necessarily reflect those of the Department of Homeland Security, Air Force, or Defense Department.

Reprint & Copyright © Association of Military Surgeons of the U.S.

Reprint & Copyright © Association of Military Surgeons of the U.S.

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