Vitale v. Henchey

Supreme Court of Kentucky · 2000 · Torts

TortsBatteryMedical consentDamagesbatterymedical batterylack of consentinformed consent

Facts

Maurice Henchey, acting under his mother Helen Hite Sallee's medical power of attorney while she was confused and unable to communicate, consented to surgeries to be performed by Drs. Sparrow and Wieman. According to Henchey, he did not consent to Dr. Gary Vitale performing either of the November surgeries and would not have consented to him. Vitale nonetheless performed the surgeries, and Henchey learned of Vitale's involvement only afterward. After the surgeries and before her death, Sallee showed possible signs of consciousness, including movement of her extremities, eye flinching in response to her name, and treatment for pain.

Issue

When a physician performs surgery without the patient's consent, must the plaintiff prove a breach of the accepted standard of medical care, or is the claim one for battery? Also, was the evidence of Sallee's post-surgical condition sufficient to create a jury question on conscious pain and suffering damages?

Rule

A physician who operates without the patient's consent commits battery, except in an emergency, and the plaintiff need not prove a violation of the accepted standard of medical care because the claim is not one for negligence. Informed-consent doctrine and the Kentucky informed-consent statute apply to failure to disclose risks and hazards of a proposed treatment, not to complete lack of valid consent. For battery, intent means intent to make the bodily contact, not intent to cause harm; actual damages are not an element, though pain-and-suffering damages require evidence of at least partial or intermittent consciousness.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Columbus, Ohio, Naomi Reed signed a consent form authorizing spinal surgery by Dr. Elias North. On the day of surgery, Dr. North left for a family emergency, and his partner, Dr. Priya Malhotra, performed the operation without telling Naomi or her daughter, who held Naomi's medical power of attorney. The surgery was skillfully performed and improved Naomi's condition.

If Naomi's estate sues solely on the theory that Dr. Malhotra operated without authorization, which additional showing is required to reach the jury on liability?

Explanation. When the allegation is complete lack of consent to the physician who made the bodily contact, the claim sounds in battery, not negligence. Under the majority rule, the plaintiff need not prove a violation of the accepted medical standard of care, because the wrong is the unauthorized touching itself. The physician's skill, good motive, or successful result does not convert the claim into negligence. (Derived from Vitale v. Henchey (n.d.).)