In medical malpractice cases, the plaintiff must prove the healthcare professional acted negligently, which lead to the person sustaining injuries. Sometimes, though, the evidence isn't strong enough to support that claim. However, you may still be able to win some compensation for your damages and losses if you can prove the healthcare professional engaged in medical battery. Here's more information about this tort.
What is Medical Battery?
Medical battery is the unwanted touching or treatment by a healthcare professional. It's similar to the informed consent tort in that the medical person fails to obtain a patient's consent to a procedure. For instance, a pregnant woman refuses to have a c-section, but the delivery doctor performs one anyway. That would be considered medical battery if there was no urgent reason why the doctor should have gone against her wishes.
Unlike with medical malpractice, the plaintiff doesn't have to show that he or she sustained any damages; only that the medical professional performed the procedure without the plaintiff's approval. However, the plaintiff must also show there was no consent to treatment at all.
This can be challenging because there are situations where a medical professional doesn't need the patient's explicit consent. Generally, this occurs when permission is implied by the situation. For instance, making an appointment to see the doctor implies you consent to be examined by that doctor to diagnose your health problem. Another area where implied consent may apply is when a person seeks care for a health emergency (e.g. heart attack).
Overcoming Litigation Challenges
The biggest challenges you'll likely face with this type of case is overcoming the issue of consent, particularly if you agreed to be treated. However, simply agreeing to a treatment doesn't necessarily mean you give consent to every part of the procedure.
For instance, if you are allergic to a specific type of medicine, you can refuse to be given that medication, and it would be considered medical battery (and possibly malpractice) if the healthcare professional overrode your wishes and injected it into you. Likewise, if the surgeon operated on the wrong body part, you could make a case that you didn't give the doctor permission to treat that part.
It's best to review your case with a personal injury attorney to uncover areas where your ability to consent may have been compromised or was overridden to see if you can develop a viable case for medical battery and get the compensation you deserve. Click here to find out more.