Do You Need To Be Injured To File A Medical Malpractice Lawsuit?
Let’s take a hypothetical situation. I’m a patient who has been told that he will undergo a procedure performed by a world-renowned specialist. However, when he gets there, the procedure is performed by someone else. When I signed the consent form, I only consented to allowing the world-renowned doctor to perform the procedure. The procedure went as planned but there was some mild swelling afterward and I am worried that I may have an infection. I file a medical battery (not malpractice) lawsuit against the doctor who performed the procedure on the basis that I did not consent to that doctor performing the procedure.
This happened. A lawsuit was filed against a doctor on a theory of medical battery even though there were no actual complications from the procedure. In a medical malpractice lawsuit, you must establish injury. In a medical battery lawsuit, however, you don’t. The fact that your consent was violated is an injury in and of itself. However, the standard for medical battery is a little bit higher than the allegations we see above.
Medical malpractice, medical battery, and informed consent violations
In this case, the court made a distinction between three types of lawsuits. Medical malpractice is the one we’re most familiar with. Informed consent violations and medical battery are similar but different. Medical battery is based on a lack of informed consent, but it’s reserved for situations in which a doctor performs the wrong procedure, substitutes a procedure, or engages in some other form of harmful or offensive touching.
The question put to the court was: Is this medical battery or an informed consent violation? If it was medical battery, then the doctor ran the risk of having his license revoked. It also meant the plaintiff did not have to prove damages to collect an award. The doctor’s medical malpractice insurance would not cover a medical battery lawsuit. So, in this case, he stood to lose a lot just based on the court’s interpretation of what happened.
In this case, the court sided with the doctor. They issued a ruling stating that no medical battery occurred and that the matter was an informed consent violation. An informed consent violation would require injury. So, the plaintiff was out of luck.
Injury is an element of a negligence in personal injury lawsuits
In all but the rarest of situations, a plaintiff would need to establish an injury. The injury does not need to be permanent, but in medical malpractice lawsuits, it usually is. In this case, there was some swelling and redness around an incision point and the plaintiff made a full recovery. However, the hospital did violate the patient’s consent when the procedure was performed by a different doctor. Had that doctor caused a serious injury, the hospital would have been liable.
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