Rice v. Brakel - 233 Ariz. 140, 310 P.3d 16 (Ct. App. 2013)

Rule:

The elements of common law battery consist of an intentional act by one person that results in harmful or offensive contact with the person of another. A health care provider commits a common law battery on a patient if a medical procedure is performed without the patient's consent. The battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented. When the 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. 

Facts:

On July 30, 2007, Jay Rice underwent spinal surgery on his S1 and L5 nerve roots in an attempt to relieve pain in his right leg. Rice also was experiencing pain in his left leg before the surgery. Arlo Brakel, a neurosurgeon, performed the surgery. The procedure successfully relieved pain in his right leg, but Rice experienced increasing pain in his left leg after the surgery. Other doctors in Brakel's practice group, the Center for Neurosciences ("Center"), provided follow-up care. Initially the follow-up exams indicated Rice probably was experiencing some nerve irritation as a result of the surgery. However, an MRI from 2010 indicated that Rice had scar tissue surrounding one nerve root, and an exam in March of that year showed fibrillation and insertion potentials consistent with L5 or S1 radiculopathy on the left side. After an exam in October 2011, one of Rice's doctors concluded there was "[p]robable operative injury to S1 nerve root and postoperative scar affecting L5 nerve root." Eventually, Rice discovered that Brakel had a dependency on unprescribed prescription drugs including morphine, Dilaudid, and Percocet around the time of his July 2007 surgery, and that sometime after the surgery Brakel had been reprimanded by the board and placed on probation for five years. Brakel obtained some of these drugs by stealing them from his patients. Rice sued Brakel and the Center for battery, negligence, and breach of contract in September 2010. Rice moved for partial summary judgment on the issues of battery and negligent supervision. Claiming Rice had failed to adduce evidence to establish a prima facie case for any of the claims against him, Brakel moved for summary judgment, and the Center moved for partial summary judgment on the issue of negligent supervision. The trial court denied Rice's motion, granted Brakel and the Center's motions, and awarded the successful parties their costs. Rice moved for a new trial, which the court denied. Rice appealed. 

Issue:

Did Rice establish a prima facie claim of medical battery?

Answer:

No.

Conclusion:

The court held that Rice did not establish a prima facie claim of medical battery because he signed a consent for the operation he received to be performed by Brakel. Because Rice did not adduce evidence that the practice group had actual or constructive knowledge of Brakel’s drug dependency problems before his surgery, or that the surgery itself proximately caused him injury, he failed to establish the elements of negligent supervision. The court also found that Rice failed to establish the elements of his claim of lack of informed consent because he failed to adduce evidence that he would have declined the treatment had the surgeon's status been disclosed. Finally, because Rice’s own expert conceded that Brake performed the surgery within the relevant standard of care, Rice failed to establish the elements of his claim for negligent performance of the procedure.