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Understanding The Difference Between Medical Malpractice & Medical Battery

Medical malpractice, or medical negligence, is a civil claim brought against a healthcare provider. The necessary elements for a claim include that a patient/physician relationship existed, the physician owed a duty of care which was breached, and the breach caused the patient’s injuries. The duty is violated when care does not meet accepted standards or levels care. 

When you visit a medical provider, there is a necessary element of consent. Patients have a right to be made aware of what will be conducted, the associated risks, and other available alternatives. The principle of informed consent requires that a physician formally discuss the procedure and the related benefits and risks involved. Three claims that can be brought against medical providers include professional negligence, informed consent, and a lesser known claim of medical battery.

Understanding Medical Battery

Medical malpractice is generally done unintentionally, while medical battery is intentional. The plaintiff is not required to prove the harm was done intentionally. Medical battery is generally when a physician does not afford you the opportunity to decide on undergoing a medical treatment. The act is done with intent and could include touching or other offensive action that is the cause for the tort. 

A commonly cited case is Schloendorff v. Society of New York Hospital where the court explained that adults of sound mind have a right to decide what treatment is done to their body. Essentially, a medical procedure conducted without consent is a form of assault that has legal consequences. An example would be if a patient gave permission to operate on their leg left and the surgeon then decided instead to operate on the right leg. The law does not apply in cases of emergency care situations. In an emergency, providers are to proceed in a manner that is likely to have the best outcome and chance for survival.

Related Case Law: Levin v. United States

Steven Levin, a military veteran, underwent cataract surgery at a U.S. Naval Hospital. According to his claim, moments prior to the operation he became concerned with the condition of the operating area and expressed a desire to withdraw consent for the surgery. He stated the surgeon did not acknowledge his request and he brought a claim in accordance with the Federal Tort Claims Act (FTCA). 

Governmental entities are ordinarily protected from suits by sovereign immunity. He cited the Gonzalez Act, which contained an intentional tort exception. Levin asserted his right to sue for medical battery according to the FTCA bypassing intentional tort exceptions. He believed the Gonzalez Act rendered the intentional tort exception inapplicable in medical battery claims against a military doctor. Levin felt a battery claim stemming from his “withdrawal of consent” was viable. The court felt future “clever” plaintiffs would bring actions arguing the FTCA does not allow battery claims against the federal government, but these claims could be brought against a military physician. The court found that the Gonzalez Act did not waive sovereign immunity in battery claims.

About the Author

Briggs Bedigian
Briggs Bedigian

H. Briggs Bedigian (“Briggs”) is a founding partner of Gilman & Bedigian, LLC.  Prior to forming Gilman & Bedigian, LLC, Briggs was a partner at Wais, Vogelstein and Bedigian, LLC, where he was the head of the firm’s litigation practice.  Briggs’ legal practice is focused on representing clients involved in medical malpractice and catastrophic personal injury cases. 


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