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Christman v. Davis - 2005 VT 119, 179 Vt. 99, 889 A.2d 746

Rule:

Battery is an intentional act that results in harmful contact with another. In a medical context, a health care provider commits battery if the provider performs a procedure for which the patient has not given consent. Generally, consent to particular conduct, or "substantially the same conduct," bars recovery for a harmful invasion. 

Facts:

The patient consented to have the dentist perform a tissue graft to obtain root coverage. After beginning the procedure, the dentist determined that he would perform a flap procedure instead. The patient was surprised that he did not receive a full graft and later learned that he would need to undergo a tissue graft because the flap procedure did not achieve full satisfactory results. On appeal, the patient argued that he did not give consent to perform the flap procedure, and therefore, the dentist committed a battery. The dentist indicated that the flap procedure was a less invasive procedure done to determine whether there was sufficient tissue of adequate quality to perform the graft. 

Issue:

Was there battery when a doctor performed a less-invasive procedure that was not  specifically consented to by the patient?

Answer:

No

Conclusion:

The procedure done was consented to and thus, did not support the battery claim. To the extent that the patient had an actionable claim, it fell within the lack-of-informed-consent line of cases. Because the patient conceded that the flap procedure was necessary to the tissue graft, there was no material issue of fact as to whether the consent covered the flap procedure. The battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented. When a patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present. However, when the patient consents to certain treatment and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears; rather, the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information. In that situation the action should be pleaded in negligence. 

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