Negligence Versus Assault and Battery

A patient is injured by a physician's conduct. In making a claim for recovery of damages against the physician, is the proper action based in negligence or in the intentional tort of assault and battery?

The basis of the difference in these causes of action is grounded on the doctrine of consent. The doctrine of informed consent imposes a duty on the physician to advise the patient about the nature and risks of the treatment about to be undertaken. Most courts today reserve a medical malpractice claim for assault and battery for those situations in which the patient did not consent to the procedure actually performed by the doctor. In those cases where the patient gave consent to the procedure but was not given the proper disclosure about its nature and risks, negligence is most often seen as the proper cause of action. In fact, several states have enacted laws clarifying this distinction.

In general, a negligence action is a much better "fit" in a medical malpractice claim because it more accurately reflects the physician/patient relationship and avoids the harshness of liability for assault and battery. Many courts view the failure to procure adequate informed consent to a procedure or treatment as just one factor in the entire issue of communications between the physician and the patient.

A negligence claim must prove that the physician owned a duty to the patient based on a standard of care, that he or she breached that duty, and that the patient was injured as the result of the breach. On the other hand, the evidence required to prove a case based on a theory of assault and battery is factually more straightforward. It does not usually depend on expert testimony concerning the issues of breach of an established standard of care or whether that breach was the cause of the patient's injury. Therefore, in cases where the facts warrant a claim of assault based on a total lack of consent and the evidence of negligence is shaky, it may be reasonable to include a claim for assault and battery. However, in most jurisdictions, the period in which that type of action must be filed (the statute of limitations) is shorter than the time within which a negligence action must be brought.

Copyright 2008 LexisNexis, a division of Reed Elsevier Inc.