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No matter how a court labels a defendant's alleged fault in a medical malpractice action, whether breach of contract or battery, if plaintiff sustained personal injuries as a result of that fault, the jury may award damages for all of the plaintiff's injuries proximately caused by that conduct. That award may be tempered, depending upon the resolution of the issue of excess damages, as per a court's analysis of the damages recoverable for the plaintiff's battery claim, which is equally applicable to the measure of damages available for the breach of contract claim. In determining whether to award damages for breach of contract, and if so, how much, the jury may consider the same factors we discussed with regard to its consideration of damages for battery. Damages for breach of contract may not duplicate those for the battery cause of action.
Plaintiff David Murphy injured his back at work. He claimed that contrary to his wishes, defendant doctors Dante Implicito, M.D., and George Jacobs, M.D., implanted cadaver (allograft) bone in his spine during back surgery. In his complaint, plaintiff alleged medical negligence based on a lack of informed consent, battery, and breach of contract, and his wife, plaintiff Marilyn Murphy, claimed a loss of consortium. The trial court entered an order limiting plaintiff’s recovery to damages caused directly by the use of cadaver bone material and limited the plaintiff wife's per quod recovery to the battery claim and barred her quod claim for breach of contract. Plaintiffs challenged the order.
Was the trial court correct in limiting plaintiffs’ recovery in various ways?
The court granted the application for leave to appeal filed by plaintiffs challenging the order limiting their recovery in various ways. The court held that if the jury was unable to distinguish between the harm the plaintiff patient suffered from the use of cadaver bone and the harm he sustained from the operation itself, the jury might award him all damages arising out of the surgery as if he had not given his consent to the defendant doctors to perform the operation. That, if the jury was unable to distinguish the harm caused by the use of cadaver bone from that caused by the surgery in general, the jury could award damages for all of the injuries the plaintiff patient suffered. The court further ruled that the plaintiff wife's derivative claims, whether based on the plaintiff patient's breach of contract or battery claims, were permissible. Therefore, the court reversed the order, modified it by setting forth the scope of damages available to plaintiffs, and remanded the case to the trial court for further proceedings.