530. Medical Battery

[Name of plaintiff] claims that [name of defendant] committed a battery. To establish this claim, [name of plaintiff] must prove all of the following:

1. [That [name of defendant] performed a medical procedure without [name of plaintiff]'s consent; [or]]

[That [name of plaintiff] consented to one medical procedure, but [name of defendant] performed a substantially different medical procedure; [or]]

[That [name of plaintiff] consented to a medical procedure, but only on the condition that [describe what had to occur before consent would be given], and [name of defendant] proceeded without such occurring;]

2. That [name of plaintiff] was harmed; and

3. That [name of defendant]'s conduct was a substantial factor in causing [name of plaintiff]'s harm.

A patient can consent to a medical procedure by words or conduct.

Directions for Use

One or more of the three bracketed options in the first element should be selected, depending on the nature of the case.

Sources and Authority

Battery may also be found if a substantially different procedure is performed: "Where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery." (Cobbs v. Grant (1972) 8 Cal.3d 229, 239 [104 Cal.Rptr. 505, 502 P.2d 1].)

Battery may also be found if a conditional consent is violated: "[I]t is well recognized a person may place conditions on [his or her] consent. If the actor exceeds the terms or conditions of the consent, the consent oes not protect the actor from liability for the excessive act." (Ashcraft v. King (1991) 228 Cal.App.3d 604, 610 [278 Cal.Rptr. 900].)

"Confusion may arise in the area of 'exceeding a patient's consent.' In cases where a doctor exceeds the consent and such excess surgery is found necessary due to conditions arising during an operation which endanger the patient's health or life, the consent is presumed. The surgery necessitated is proper (though exceeding specific consent) on the theory of assumed consent, were the patient made aware of the additional need." (Pedesky v. Bleiberg (1967) 251 Cal.App.2d 119, 123 [59 Cal.Rptr. 294].)

"Consent to medical care, including surgery, may be express or may be implied from the circumstances." (Bradford v. Winter (1963) 215 Cal.App.2d 448, 454 [30 Cal.Rptr. 243].)

"It is elemental that consent may be manifested by acts or conduct and need not necessarily be shown by a writing or by express words. [Citations.]" (Kritzer v. Citron (1950) 101 Cal.App.2d 33, 38-39 [224 P.2d 808].)

Secondary Sources

5 Witkin, Summary of California Law (9th ed. 1988) Torts, §§ 352-562, pp. 439-658

3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical Practitioners, § 31.41, Ch. 41, Assault and Battery (Matthew Bender)

California Tort Guide (Cont.Ed.Bar 1996) §§ 9.11-9.16

6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.14, Ch. 414, Physicians and Other Medical Personnel (Matthew Bender)

2 California Points and Authorities, Ch. 21, Assault and Battery (Matthew Bender)

17 California Points and Authorities, Ch. 175, Physicians and Surgeons (Matthew Bender)

33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and Directives, § 104.11 (Matthew Bender)

(Revised October 2004)