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In the published portion of its opinion in Dennis v. Southard (May
29, 2009) 09 C.D.O.S. 6625, the Third Appellate District of the
Court of Appeal held that the CACI form instructions on medical
battery—CACI Nos. 530A and 530B—“correctly state the intent
requirement for medical battery.”
In Dennis, the plaintiff consented to knee replacement surgery on
her left knee in June 2004, as long as the orthopedic surgeon, Dr.
Southard, did not use Johnson & Johnson prosthesis. He used a Biomed
prosthetic device and the surgery was a success.
In October 2004, the hospital where Dr. Southard performed surgeries
switched from using Biomed devices to Johnson & Johnson devices.
When Ms. Dennis had right knee replacement surgery by Dr. Southard
that month, a Johnson & Johnson device was used. During the surgery,
the patient’s medial collateral ligament was transected. She sued
for medical negligence and medical battery.
Dr. Southard made and won a motion for summary judgment on the
medical negligence claim. The medical battery claim went to the
jury, who also found for Dr. Southard. Dennis appealed. In the
published portion of the opinion the court addressed Dennis’ appeal
on the ground that the jury was incorrectly instructed on medical
battery. The Dennis trial court used instruction No. 530B rather
than No. 530A over plaintiff’s objection. On appeal, Dennis
contended this was error because the “intent element ‘add[ed]’ in
CACI No. 530B is ‘misleading at best and incorrect at worst.’” The
appellate court pointedly said she was “mistaken” and affirmed.
In so doing, the Court distinguished the two CACI instructions on
medical battery. CACI No. 530A “is to be used when it is alleged the
defendant performed a medical procedure without the plaintiff’s
consent.” By contrast, No. 530B “is to be used when a plaintiff gave
a conditional consent to a medical procedure and when it is alleged
that the defendant proceeded without the condition having been
satisfied.”
The court explained why the intent element in each instruction is
different:
The intent requirement in CACI No. 530B is correct. It requires
“inten[t] to perform the procedure with knowledge that the condition
has not occurred.” (CACI No. 530B.) Inclusion of intent and
knowledge as elements of medical battery is consistent with
well-established principles of civil battery. (See, e.g. Piedra v.
Dugan (2004) 123 Cal.App.4th 1483, 1496 [nonsuit for medical battery
cause of action proper where the defendant ‘could not have
intentionally deviated form the scope of the consent because he was
unaware of any condition on the consent.”].) Thus, while Dennis is
correct that the intent does not need to be malicious, or need to be
an intent to inflict actual damage, she is wrong in arguing that the
only intent required is intent to perform the procedure.
Moreover, the reason why CACI No. 530B has an explicit intent and
knowledge requirement and CACI No. 530A does not is clear. The law
presumes that “[w]hen the patient gives permission to perform one
type of treatment and the doctor performs another, the requisite
element of deliberate intent to deviate from the consent given is
present.” (Piedra v. Dugan, supra, 123 Cal.App.4th at p. 1496.) That
situation is covered by CACI No. 530A. On the other hand, in a case
involving conditional consent, the requisite element of deliberate
intent to deviate from the consent given cannot be presumed simply
from the act itself. This is because if the intent element is not
explicitly stated in the instruction, it would be possible for a
jury (incorrectly) to find a doctor liable for medical battery even
if it believed the doctor negligently forgot about the condition
precedent.
This is a favorable case for medical negligence defendants in
situations where the consent to treatment was conditional and it is
contended the defendant went forward with the treatment without
satisfying the condition.
However, the court’s observations about CACI No. 530A, and that
intent is “presumed” when a patient gives permission for the doctor
to perform one type of treatment but another is actually performed,
is still problematic in those cases where a physician negligently
performs a procedure different from the one to which the patient
consented. For example, in Kaplan v. Mamelak (2008) 162 Cal.App.4th
637 (which I summarized on June 11, 2008) the surgeon twice
performed surgery on the wrong thoracic disk. The appellate court
held that the question of whether the wrong surgery was negligent or
was a substantially different procedure that could constitute
battery is a question of fact for the trier of fact and “not capable
of being decided on demurrer.”
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