A mugger sticks a knife in you and kills you or leaves you maimed for life. A surgeon sticks a knife in you, and kills you or leaves you maimed for life. What is the difference between the two? The mugger will go to jail and the surgeon will not.
Why? Because you consented: you signed a consent form and gave the surgeon permission to stick the knife in you.
What if you did not consent? What if you were in an auto accident and unconscious, or the patient was a child who could not understand what was going on, or the doctor did something against your will? Do you have a valid complaint? It all depends on the circumstances.
Under normal circumstances, a doctor who does something to a patient without consent commits what lawyers call a Battery, which is when someone actually touches you without your consent and does you some harm. It is different from an Assault, which means putting you in fear of imminent injury. Angry words do not constitute an assault, unless you have good reason to fear that violence is about to follow. It is important to remember the difference when you are thinking about whether you have a valid complaint for lack of consent.
A Maryland ENT specialist obtained a consent form to operate on a patient’s right ear. By mistake, he operated on the left ear. He claimed there was no harm, since he had done a good operation on the left ear, which was also diseased and would eventually have required surgery. But, the court held that no matter how skillfully he had operated, he had committed a battery, because he did not have permission to operate on the left ear. He was guilty of medical malpractice, because he negligently failed to check and make sure he was operating on the correct ear.
A Missouri plastic surgeon, who was confronted by an angry and dissatisfied patient, pulled out a can of mace and sprayed the patient in the face. Spraying mace in the patient’s face was a battery. It got into the patient’s eyes, nose, and mouth and did a lot of harm. If the doctor had just threatened him with the can, so he was afraid he would be injured but had not actually sprayed him, that would have been an assault. Actually, it was both assault and battery, because the outraged patient was put in fear as soon as he saw the can of mace coming at him, as well as being injured. The doctor’s action was worse than medical malpractice. It was a crime, and the doctor lost his license to practice medicine.
That case was unusual. Many medical malpractice cases involve battery, but it is what lawyers call Inadvertent Battery; the result of carelessness or an honest mistake. The doctor operates on the wrong eye, or a nurse gives an injection to the wrong patient. They do not mean harm, but it is medical malpractice all the same. The doctor who operated on the wrong ear certainly did not intend to harm his patient. In fact, he did a first-class operation, but he made a careless mistake.
The courts treat inadvertent battery as plain malpractice or even a slip of the wrist accident. They are not willing to penalize a doctor for a mistake that could happen to anyone and may dismiss such a complaint or give a small award. However, if a doctor deliberately does anything to harm his patient’s physical or emotional well-being, without the patient’s consent, that is what is known as a Battery with Malicious Intent.
A Long Island dentist was found guilty of having had sex with his patients while they were asleep under anesthetic. That was battery with malicious intent. A psychiatrist in a VA hospital gave a patient a potent, mind-altering drug used only on animals as an experiment and without his knowledge or consent. The patient went crazy and committed suicide. The jury found the doctor guilty of battery with malicious intent and assessed heavy damages that he had to pay out of his own pocket.
The Rule Is: If you have been the victim of battery with malicious intent, it means the doctor is under tremendous pressure to settle.