Most of us are familiar with theories of liability commonly plead in medical negligence cases or nursing home cases. Typically we see allegations of negligence, wrongful death, or in the case of nursing homes, the allegation of a violation of the Illinois Nursing Home Care Act. However, when the fact scenario involves an alleged “unauthorized touching,” often times the complaint will also allege battery as a theory of liability.
In Illinois, a battery has been defined as the unauthorized touching of another.1 The Restatement (Second) of Torts provides that an actor commits a battery if:
(a) he/she acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an
imminent apprehension of such a contact, and
(b) a harmful contact with the person of the other directly or indirectly results.2
Actual physical contact is not required. The contact requirement may be satisfied if the defendant caused a plaintiff to merely come into contact with a substance in a way that may be viewed as offensive.3
Common Fact Scenarios Fact scenarios commonly seen in battery claims include:
Unauthorized treatment of any kind
medical procedure performed without consent
catheterizations without written or verbal consent
emergency surgery without consent
procedure at variance from the one specifically consented to
medication administered that varied from those consented to
medication error or prescription misfill
unauthorized surgeon completes surgery
drug testing performed without consent
sexual assault or rape
patient to patient unwanted physical contact
employee to patient unwanted physical contact
Obviously, there are defenses for many of the scenarios listed above. However, we have seen all of these items plead in support of allegations of battery.
Medical Battery Emergency Exception
In a case of medical battery, the requirement of intent is not present. In a medical battery case, it is unnecessary for a plaintiff to establish hostile intent on the part of the defendant; rather, the issue before the jury will be whether there was an absence of consent by the plaintiff.4 Lack of consent is established when there is (1) a total lack of consent to the procedure performed; (2) the treatment was contrary to the patient’s will; or (3) the treatment was at substantial variance with the consent granted.5
Even if a plaintiff is able to prove the elements of battery, there is an important exception in medical cases – emergency care. There are four essential elements required to establish that the emergency exception applies:
(1) there was a medical emergency;
(2) treatment was required in order to protect the patient’s health;
(3) it was impossible or impractical to obtain consent from either the patient or someone authorized to consent for the patient; and
(4) there was no reason to believe that the patient would decline the treatment, given the opportunity to consent.6
All four of the above listed elements must be proven in order to prevail. The existence of a medical emergency involves the assessment of the patient’s medical condition and, therefore, must be established by expert testimony.
Punitive Damages Allowed
Another important issue to remember about medical battery, is that in certain circumstances, punitive damages may be plead. In medical malpractice cases, punitives are not generally allowed. However, a plaintiff may state a malpractice claim subject to the punitive damages limitation in the Healing Arts Malpractice Act7 as well as an intentional tort claim for which punitive damages may be available.8 Plaintiffs may add the battery count in order to be able to argue punitive damages in a medical case.
In summary, medical battery is often defensible. The primary argument usually relates to fact discovery surrounding the reason that medical staff proceeded with the procedure without obtaining specific consent. Typically, defense experts are utilized to explain the medical necessity of the care rendered without specific consent in order to prove the elements of the medical emergency exception. As with all cases, it is important to discuss any possible alleged battery claim with counsel as early as possible to prepare the best defense possible.
1Curtis v. Jaskey, 326 Ill. App. 3d 90, 759 N.E.2d 962, 2001 Ill. App. LEXIS 870, 259 Ill. Dec. 901 (Ill. App. Ct. 2d Dist. 2001). 2Restatement (Second) of Torts, § 13 (1965). 3Gaskin v. Goldwasser, 166 Ill. App. 3d 996, 520 N.E.2d 1085, 1988 Ill. App. LEXIS 228, 117 Ill. Dec. 734 (Ill. App. Ct. 4th Dist. 1988). 4Curtis, 326 Ill.App.3d at 94. 5Lane v. Anderson, 345 Ill. App. 3d 256, 802 N.E.2d 1278, 2004 Ill. App. LEXIS 3, 280 Ill. Dec. 757 (Ill. App. Ct. 3d Dist. 2004). 6Moriarity v. Rockford Health Sys., 365 Ill. App. 3d 378, 848 N.E.2d 202, 2006 Ill. App. LEXIS 367, 302 Ill. Dec. 202 (Ill. App. Ct. 2d Dist. 2006). 7735 ILCS 5/2-1115. 8Happel v. Wal-Mart Stores, Inc., 2004 U.S. Dist. LEXIS 1463 (N.D. Ill. Feb. 3, 2004).