Battery By Surgery?

               Before undertaking surgery, hospitals and surgeons routinely  first obtain the patient’s consent to perform the proposed procedure.  Occasionally, however, a doctor will obtain the consent of a patient to perform one type of surgery, but perform another procedure instead.  In such a situation, battery occurs and the patient is entitled to recover damages for the unauthorized surgery.

               In a recent case arising in the County of Los Angeles, Sandra, after a substantial loss of weight, asked her doctor “to surgically remove excess skin from her arms, back, thighs and stomach.”  The surgeon agreed to do the requested surgery, but further proposed a breast enlargement procedure in which muscle would be moved from the back to the breast.  Sandra responded that she did not want the suggested breast enlargement surgery.

               During a subsequent visit, the surgeon and Sandra talked about another procedure “designed to lift but not enlarge the breast . . . .”  Sandra advised the surgeon that she “had definitely decided not to have any breast surgery at that time.”

               Finally, at the hospital, Sandra was again asked to sign a form that included a consent to the breast-lifting procedure.  She twice refused to sign the form but finally did so after she was medicated, taken to the operating room, and reassured by the surgeon that he would not perform any breast surgery.

               After Sandra awoke, she discovered that in addition to the skin removal procedure, the surgeon had substantially augmented her breasts by moving tissue flaps from the sides of her chest into her breasts, increasing the size of her breasts from a 34B to a 40DD, “making them ‘many, many times bigger’ than they had been.”  When questioned, the surgeon simply told her that “although she might then be upset, she would be happy within a year – after one or two additional surgeries for minor revisions.”

               After a trial by jury, a verdict was returned awarding Sandra $59,000 in medical expenses, and $1,030,000 as damages for emotional distress.

               On appeal, the Court of Appeal affirmed the jury verdict and noted that the surgeon “performed the breast enlargement without Sandra’s consent and contrary to her express wishes or, in legal terms, that [the surgeon] is liable for the intentional tort of battery.”

               In an earlier case, vintage 1946, a patient sued his dentist.  The patient apparently visited the dentist’s office for the purpose of having “one designated tooth extracted” but after being “placed in a dental operating chair and an anesthetic administered,” the dentist removed five teeth in addition to the one the patient wanted extracted.  A 1946 judgment for $4,000 was upheld on appeal.

               The moral of the story?  Be sure that the surprise you bestow is one that is truly desired!  And remember, jury verdicts today are substantially higher than they were in 1946!

[This column is intended to provide general information only  and
is  not intended to provide specific legal advice; if you have  a
specific  question  regarding the  law,  you  should  contact  an
attorney  of your choice.  Suggestions for topics to be discussed
in this column are welcome.]


Reprinted from New Era Magazine
Myles M. Mattenson © 2002