what-to-consider-before-filing-a-medical-malpractice-lawsuitMedical malpractice is medical negligence. There are some general assumptions that are often made by the public that whenever a physician makes a mistake, or if the outcome of a treatment or procedure is not acceptable to the patient, they can file a lawsuit against their doctor. This is not true. To prove that medical malpractice occurred, the plaintiff would have to prove:

  • A doctor-patient relationship existed
  • The doctor owed a duty of care to the patient
  • The doctor breached the duty of care and acted or failed to act according to the accepted standard of care for their specialty and in the geographical area
  • The medical professional’s breach of the standard of care caused the patient’s injury
  • The patient suffered damages because of the injury

When you visit a doctor and they prescribe a treatment or procedure, an essential element is your consent. You have the right to know what will be done to you, to learn the risk or potential side effects of a procedure, and to be informed of any alternative treatment options available to you. Under the principle of informed consent, where the doctor describes the procedure how it will be done and the benefits and risks of undergoing the procedure. Medical battery occurs when the doctor or other medical professional violates your right to decide what kinds of medical treatments you will receive and which you do not wish to receive.

Proving medical battery

While medical malpractice is usually unintentional and occurs out of some form of negligence, medical battery is intentional. The elements of medical battery include:

  • The act
  • Intent
  • Causation (actual and proximate)
  • Touching
  • Harmful or offensive

(UND School of Law)

Medical battery is intentional touching without permission. The plaintiff does not have to prove that the perpetrator intended any harm. Former U.S. Supreme Court Justice Cardozo, in his opinion in Schloendorff v. Society of New York Hospital said, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages. This is true except in cases of emergency, where the patient is unconscious and where it is necessary to operate before consent can be obtained.” (Schloendorff v. Society of New York Hosp., 105 N.E. 92, 93 (N.Y. 1914))

So, in cases of emergency, when a patient is unconscious and unable to give consent, a doctor may operate to save the person’s life. If a patient has refused care, yet the care was forced on them, they may have a case for medical battery and they may be entitled to compensation or any resulting injuries or losses.

If you believe you have been a victim of medical battery, seek counsel with a Washington, DC medical malpractice attorney to learn more.

Related Articles