Section 2.8 Physician—Lack of Consent

• Library: Tort Law 2016

1. (§2.8) Physician—Lack of Consent

Many cases of battery occur in the context of medical treatment. See, e.g.:

· Devitre v. Orthopedic Ctr. of Saint Louis, LLC, 349 S.W.3d 327 (Mo. banc 2011)

· Cruzan by Cruzan v. Harmon, 760 S.W.2d 408 (Mo. banc 1988)

· Wuerz v. Huffaker, 42 S.W.3d 652 (Mo. App. E.D. 2001)

· Wilkerson v. Mid-Am. Cardiology, 908 S.W.2d 691 (Mo. App. W.D. 1995)

"[I]n the absence of any consent, a physician is subject to liability for battery." Wuerz, 42 S.W.3d at 656 (citing Baltzell v. Van Buskirk, 752 S.W.2d 902, 906 (Mo. App. W.D. 1988)). "To establish battery based on lack of consent, a plaintiff is only required to prove the occurrence of unconsented touching. The sole question in such a case is whether the patient was...