When we are dealing with a medical malpractice cases, we are typically dealing with action founded under a theory of negligence. In a standard negligence case, the elements of the tort are duty, breach, causation, and damages. The duty is a duty of due care to act as a reasonable and prudent person so as to prevent a foreseeable injury to foreseeable persons and property.
In the case of medical malpractice, we use the same standard, but instead of the reasonable and prudent person, we use a reasonable and prudent medical professional performing that same procedure. For example, in the case of heart surgeon preforming an operation, a surgeon is supposed to act as reasonable and prudent heart surgeon would act in performing the same procedure.As our Boston medical malpractice lawyers can explain, there was originally much disagreement over whether we used a local or national standard for that duty of due care for medical professionals. Let’s say we have a case where person in a small town in South Dakota needed a medical procedure 50 years ago, and the town doctor was the only medical professional available. While he is very competent as a physician, he may not have the same equipment and experience as someone who worked in a major city like Boston or New York would have. There was a time not too long ago when pregnant women who need to schedule a cesarean section (C Section) would need to go to a larger hospital in the city because their local hospital was not equipped to do the procedure unless it was an emergency and they had no choice.
There were some cases that argued that it should be local standard of care in medical malpractice cases, meaning that the small town doctor would not have to be held to the same standard of care as the doctor in a major city hospital. There were others who argued that the doctors should all be trained up to a national standard and should not be given a lower standard of care simply because they were practicing in a small town.
However, in a large city such as Boston, this is not generally the case. We have some of the finest hospitals in the world that are affiliated with some of the finest medical schools in the world, so whether their doctors are held to a national or local standard of care, there will not be any breaks for the doctor merely because they work in Boston. In fact, the exact opposite might be the result and a jury would hold them to a relatively higher standard of care.
In addition to negligence as a cause of action in medical malpractice cases, there is also the concept of medical battery. The crux of this cause of action deals with the issue of informed consent. When you have a medical procedure such as surgery, you are required to give your informed consent. This means you are told about all the benefits and risks and still decide to have the medical procedure. Before you have surgery, you must give your informed consent. Informed consent is a defense to the tort of battery, and battery is an intentional tort.
First let’s define the tort of battery. Battery is defined as the harmful or offensive non-permissive touching of another. If you are walking down the street and someone punches you in the face, that is not only a crime of assault and battery, but it is also the tort of battery, or assault and battery, depending on the circumstances. That was a harmful or offensive touching for which you did not give your consent. If you were in a boxing match for example, you would have implicitly or explicitly given your consent to enter into the fight and be punched in the fact. You could not file a lawsuit for battery for being punched in a sanctioned boxing match. However, if the defendant exceeds the scope of the consent, you could have a tort case.
For example, if the boxer put a weight in his or her glove and hit you with that, you would not have consent to the illegal move and consent would not be a defense. At the same time, when you go to the doctor to have knee surgery on your left knee, you are giving consent to have the doctor take a knife (scalpel) and cut into our knee. If someone on the street cut you in the knee this would be assault, but not for a doctor with an informed consent signed. However, if the doctor accidentally performed the operation on your right knee, that could be medical malpractice and a medical battery, because you never gave consent to have the surgery performed on that leg. You may recall the series of cases that made big news in the 1990s when doctors allegedly amputated the wrong leg of several patients leaving them with no legs instead of the one good leg they were supposed to have. These cases were filed under a theory of negligence and medical battery.
In Allison v. Brown, a case from the Supreme Court of Virginia, plaintiff filed medical malpractice case and argued that there was medical malpractice and medical battery. The trial court granted the defendant’s motion to set aside the verdict in favor of the plaintiff. While there is typically a desire to honor the jury’s verdict, but there can be a motion filed that essentially says that a reasonable jury should not have been able to make such a decision based upon the evidence that was submitted in the case. This does not happen all that often but it was what happened here.
The reason for this motion being granted was the jury apparently relied upon a theory of medical battery, but that medical battery claim was not argued during trial. On appeal, the court of appeals agreed with this determination but also found that to set aside the entire verdict was not proper. For this reason, the case was remanded for a new trial. In many cases such as this, the defendant will be more likely to settle, since they know how a jury will find and the plaintiff might be able to introduce evidence of medical battery at the second trial.
If you have suffered personal injury in Massachusetts, call Jeffrey Glassman Injury Lawyers for a free and confidential appointment — (617) 777-7777.
Allison v. Brown, July 27, 2017, Supreme Court of Virginia
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