2.7 Assault and Battery

• Library: Medical Malpractice Law in Virginia (Virginia CLE) (2017 Ed.)

2.7 ASSAULT AND BATTERY

2.701 Introduction. Under the proper circumstances, assault and battery may be the basis for an action against a health care provider. "The law is so jealous of the sanctity of the person that the slightest touching of another . . . if done in a rude, insolent or angry manner, constitutes a battery for which the law affords redress." ¹²⁴

In the context of medical malpractice, a patient may maintain an action based on assault and battery for acts arising out of the physician's professional conduct. The basis for the action lies in the touching of the patient, because "[a] surgical operation on the body of a person is a technical battery or trespass unless he or some authorized person consented to it." ¹²⁵ Therefore, a patient may maintain an action for battery against a physician who performs surgery or any other procedure without the patient's consent. Consent may be expressed, implied, or presumed. Consent may also be withdrawn.

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If consent is timely and unequivocally withdrawn, a physician will be liable for proceeding with the surgery or procedure. ¹²⁶

In addition, if a physician exceeds the scope of the permission granted by a patient, the physician has committed a battery. ¹²⁷ Where a factual issue exists about the scope of the permission given by a patient, the jury should be allowed to determine the extent of permission granted. ¹²⁸

A physician may be liable for a battery even when operating with consummate skill and without producing any injury. The patient must decide whether to consent to a procedure, and "[i]t is immaterial to the issue of battery that the jury found that the operation was not negligently per-formed." ¹²⁹

2.702 Medical Malpractice Act Applies. Battery actions are subject to the requirements and protections of the Virginia Medical Malpractice Act. In Glisson v. Loxley, ¹³⁰ the plaintiff alleged that she and the defendant surgeon had entered into a "special" oral contract under which the defendant was to perform a particular procedure based on the diagnostic findings, but the defendant had instead performed a different procedure. The plaintiff sued, claiming breach of oral contract and battery, on the grounds that the procedure was performed without her consent. The court stated that "the term 'malpractice' means 'any tort based on health care or professional services rendered, or which should have been rendered, by a health care provider to a patient.'" ¹³¹ Because a battery is a tort and...