RICHMOND, Va. (Legal Newsline) – The Virginia Supreme Court has reversed the decision of a trial court while making a distinction between tort of battery and tort of negligence in medical cases.

In Feb. 2's opinion, authored by Justice Stephen R. McCullough, the court found that the wife of a patient was not able to charge the doctor of her late husband with battery after surgery on his spine went wrong.

The case was initially filed by Catherine Osborne after her late husband Michael Osborne had a surgery during which the physician fused the wrong level on Michael’s back. Michael’s death was not related to the surgery.

According to court documents, Michael Osborne consented to the surgery to relieve back pain. However, during the surgery, Dr. Matthew T. Mayr allegedly fused the wrong level on the patient’s spine. The surgery had called for the stabilization of level C5-6. The physician was using bars connected to the spine with screws. However, Mayr fused level C6-C7, although the operative report indicated he believed he had fused C5-6. 

Mayr discovered the error in x-rays that were taken following the surgery. Upon his realization, Mayr informed Michael Osborne, then performed a corrective surgery by removing the bars and screws from level C6-C7 and putting them at the correct level, according to court documents.

However, Catherine Osborne, who has been named the administrator of Michael’s estate, sued Mayr claiming battery and negligence. She later dropped the negligence claim.

In her lawsuit, Catherine Osborne said the initial surgery went beyond the scope of the consent that was given. She argued that Michael Osborne never gave consent to have level C6-C7 fused and therefore Mayr was guilty of battery. Mayr defended his actions saying he had informed his patient that operating at the wrong level was one of the complications of this type of surgery.

The court drew a distinction between tort of battery and the tort of negligence. In the case of battery, there has been precedent that defines it as any unwanted bodily contact or the consent of the patient. Whereas the tort of negligence has been set up to ensure individuals act with reasonable care. As well, in battery there is the question of intent whereas intent is not a consideration in negligence.

“These considerations lead us to conclude that a physician is not liable for battery unless the plaintiff establishes a prima facie case that the physician performed an operation ‘against the patient’s will or substantially at variance with the consent given,’” according to the court's opinion.

The court also concluded that whether or not Mayr disclosed the risks involved with the surgery will also fall under the tort of negligence.

“When a patient has consented to surgery but complains that the physician has not disclosed certain risks, the dispositive question is whether the physician breached the standard of care by failing to disclose those risks. Breach of the standard of care falls within the realm of negligence and does not constitute an intentional tort,” the opinion states.

The case was originally heard by Judge Richard Wallerstein in the Henrico County Circuit Court.

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