Washburn v. Klara

Supreme Court of Virginia · Torts

TortsBatteryMedical batteryConsentbatterymedical batteryscope of consentunauthorized operation

Facts

Washburn consented in writing to a C6-7 anterior cervical diskectomy described as removal of bone and fibrous tissue and replacement of a graft. Dr. Borden testified that he operated only at the C6-7 level and denied operating at the C7-T1 level, intentionally or unintentionally. But post-operative radiology reports showed evidence of fusion at both C6-7 and C7-T1, including a reading that a screw projected over the inferior aspect of the T1 vertebral body. Dr. Borden also admitted there was no medical reason to operate at C7-T1, even though the consent form authorized additional procedures deemed necessary or advisable.

Issue

Was Washburn's evidence sufficient to create a jury question on whether Dr. Borden intentionally exceeded the scope of her consent by performing a cervical diskectomy at C7-T1 in addition to the authorized C6-7 procedure? Put differently, did the circuit court err in striking the evidence on the battery claim?

Rule

On a motion to strike at the close of the plaintiff's case, the court must give the plaintiff the benefit of all substantial conflicts in the evidence and all fair inferences. In the medical context, absent an emergency or a necessity arising during the authorized procedure, an operation without consent or an intentional extension of the operation beyond the scope of the patient's consent constitutes a technical battery. A written consent to one operation does not authorize a different operation when no necessity arose during the authorized procedure.

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

In Richmond, Nina Patel signed a consent form authorizing Dr. Owen Mercer to repair a torn meniscus in her left knee. After surgery, imaging showed repair anchors in both the meniscus and the ACL, and Mercer admitted there had been no medical reason during the operation to address the ACL. At the close of Nina’s case on a battery claim, the trial judge considered Mercer’s motion to strike.

How should the court rule on the motion to strike?

Explanation. A physician commits a technical battery by performing an operation without consent or by intentionally extending the operation beyond the scope of the patient’s consent, absent an emergency or necessity arising during the authorized procedure. On a motion to strike at the close of the plaintiff’s case, the court must give the plaintiff all substantial conflicts in the evidence and all fair inferences. Here, post-operative imaging plus the surgeon’s admission that there was no medical reason to perform the additional repair is sufficient to create a jury issue on whether he intentionally exceeded consent. (Derived from Washburn v. Klara (n.d.).)