This month’s case examines whether a patient can sue a health care provider for battery if she objects to all or part of a medical treatment, even after the patient previously had given consent. “Battery” in tort law is defined as any physical contact with another person to which that person has not consented.

Dr. K, 45, was an ophthalmologist with a private practice. One of Dr. K’s patients, Mrs. M, 72, was having a small mass on her eyelid removed and Dr. K was using an outpatient surgical facility and one of its nurses. Prior to the procedure, Dr. K took the nurse aside.

“It’s a routine procedure,” Dr. K said, “but I wanted to warn you that the patient can be a bit prickly. She is very fearful and nervous, but also seems to be very suspicious and a complainer.  I’ve been treating her for years, but she sought five second opinions before agreeing to this. And questions? I never had a patient who asked as many questions. I’ve spent hours on the phone with her over the past month. I just wanted you to be aware.”


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A demanding patient

The clinicians went into the patient’s room and began preparing for the procedure. Mrs. M signed all the requisite consent forms. The procedure went well, and the mass was successfully removed; however, the patient began a litany of complaints almost as soon as the procedure began.

She complained about the temperature of the room (too cold), the anesthetic injection (too painful), and the temperature of the EKG pads (also too cold). And when the automatic blood pressure cuff started to inflate, she began shrieking.

“Ouch!” the patient yelled. “That hurts! Make it stop!! Take it off!”

The cuff deflated, but began inflating again moments later. Again, the patient complained, demanding it be removed immediately. The nurse looked at the physician, who shrugged. The cuff remained in place, but after the third inflation, and the third outburst from Mrs. M, the physician nodded and the cuff was removed. The rest of the procedure took place without blood pressure monitoring.

After the patient went home, the two clinicians shook their heads, but both thought they’d seen the last of the patient. They were wrong. Mrs. M retained a plaintiff’s attorney and filed a lawsuit against Dr. K, the nurse and the surgical facility for not removing the BP cuff.

Dr. K met with the defense attorney provided by his insurance company. The attorney’s advice was simple… the plaintiff’s case was weak, and the physician should go to trial if necessary.

The case progressed through depositions and discovery. Mrs. M was dogged in her determination to have her day in court. Finally that day came.

At trial, Mrs. M testified that when the automatic blood pressure cuff inflated, she suffered terrible pain and began sweating and trembling. She testified that she told the clinicians in no uncertain terms to “take it off,” yet despite that, it inflated two more times before they removed it.

Before the jury went into deliberations, the plaintiff’s attorney asked the judge to give the jury instructions on what would be necessary for the jury to find the defendants liable for the tort of battery. The judge refused. The jury deliberated as to whether the clinicians had been negligent in their treatment of Mrs. M, and found them not liable.

Case appealed

Dr. K breathed a sigh of relief, which turned out to be short lived. Mrs. M was not giving up, and had appealed to the state court of appeals. Her attorney claimed that the trial court erred in not giving the jury the opportunity to decide if the clinicians had committed battery by not removing the blood pressure cuff when Mrs. M complained. The judges on the appeals court agreed with the trial court, and dismissed the case. But Mrs. M was still not deterred, and appealed the case to the highest court in the state – the Supreme Court.

The court settled on a two-pronged test to determine whether health care practitioners can be liable for battery. First, the patient must use language or act in a way that makes it clear that the patient has revoked consent for the procedure, treatment, or examination.

Second, it must be medically feasible for the health care practitioner to stop the treatment or examination without it being detrimental or dangerous to the patient’s life or health. Applying this two-pronged test to the facts of Mrs. M’s case, the court held that Mrs. M had clearly revoked her consent to part of the procedure (use of the blood pressure monitor) by stating that she wanted it removed, and that the clinicians were feasibly able to stop. The court declared that the doctor and nurse could be sued for battery, and the case was sent back to trial court for a new trial, which has not yet taken place.

Legal issue

In the case of battery, it does not matter whether or not the patient suffered injuries.  Unlike negligence, injuries are not relevant. What is relevant is whether the patient clearly expressed the revocation of consent, and whether the clinicians could have stopped, but did not. While this case has yet to be retried, the clinicians may be found liable under this scenario. The case will probably hinge on how swiftly they responded to Mrs. M’s complaints, and whether they removed the blood pressure cuff as soon as it became clear that Mrs. M had withdrawn consent.

Protecting yourself

There are always going to be difficult patients. In this case, there may have been nothing that the clinicians could have done to prevent this lawsuit, but acting faster might have helped. The blood pressure cuff could have been removed after the first, or at worst, the second inflation once Mrs. M made the request. Waiting until after the third inflation just gave Mrs. M more ammunition for her claim that her revocation of consent had been ignored.

It’s important to note that battery applies not just to procedures or surgery, but can apply to examinations as well. That’s why it is essential to keep an open dialogue with your patients about what you are and will be doing, and frequently patients if they are comfortable with what is going on.

Ms. Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.