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Torts—Medical Malpractice—Battery

Posted by Ted A. Schmidt | Feb 12, 2016 | 0 Comments

Carter v. The Pain Center of Arizona, PC, 731 Ariz. Adv. Rep. 34 (App. Div. I, February 2, 2016) (J. Johnsen)

TORT OF BATTERY IN MEDICAL NEGLIGENCE CASE DOES NOT REQUIRE  INTENTIONAL HARM OR INTENTIONAL OFFENSIVE TOUCHING WHERE THEORY IS WILFUL DISREGARD OF PLAINTIFF'S LIMITED CONSENT

After a fall plaintiff was treated at the defendant pain center. A sacrococcygeal ligament injection was recommended. Plaintiff was squeamish. The doctor said he would put her under anesthetically for the procedure. She signed a consent form that said nothing about sedation and the procedure was in fact  performed without sedation. Plaintiff sued for battery.  Defense verdict.  Plaintiff's motion for new  trial based upon the trial court's giving of defendant's jury instruction on battery and refusal to give plaintiff's instruction was denied. The Arizona Court of Appeals vacated and remanded.

The trial court gave the Recommended Arizona Jury Instruction on battery in a medical malpractice action which required the jury find the defendant “intended to cause harm” or intended an “offensive touching.” Plaintiff argued that under the facts of this case  the jury instruction should not have required an “offensive touching” but rather that “defendant willfully performed an unconsented-to procedure.”

The court of appeals found that a battery exists under Arizona law when a physician performs a procedure without the patient's consent or in willful disregard of a  patient's limited or conditional consent. Thus, where the plaintiffs' case is based upon the claim the physician willfully disregarded the scope of the patient's consent, it is not required that the jury find the defendant intended to harm the plaintiff or intended an offensive touching.  Where a party offers a proper jury instruction and objects to the opposing party's instruction the party has adequately preserved the right to seek redress on appeal  and is not required to take the additional  step of proposing special interrogatories to the jury.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".

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