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As the law in California is presently constituted, recovery of damages for medical negligence is limited to general (non-economic damages) in the amount of $250,000.00, plus, any additional economic or special damages. Economic damages would include, but are not limited to future medical expenses and/or loss of earnings/loss of earning capacity. But what happens when a physician or health care provider performs some type of treatment that was not consented to? Does this now constitute negligence, battery, or some other form of an intentional tort?

A recent decision (2020) in the case of Burchell v. Faculty Physicians & Surgeons of the Loma Linda University School of Medicine (54 Cal.App. 5th, 515), states that when a physician obtains a patient’s consent to perform one type of treatment, but performs a substantially different treatment for which consent was not given, this act falls within the category of an intentional tort. As an intentional act (battery), the medical claim is not now subject to the MICRA (Medical Injury Compensation Reform Act of 1975) limitations on non-economic damages of $250,000.00. The MICRA limitations would apply generally in any action for injury against a health care provider based on professional negligence. However, if the medical neglect now falls within the category of a battery, the “cap” on non-economic damages is lifted, allowing potential recovery in excess of the $250,000.00 general damage limit.

The Court of Appeal determined that medical battery is an intentional tort outside the scope of MICRA; and although battery in a medical setting smacks of negligence, the performance of a procedure that the physician failed to disclose and failed to obtain consent for, constituted medical battery and not medical negligence.

Distinguishing battery from medical neglect requires a comprehensive review of medical records, consents, operative reports and the history provided by the patient. Determining the appropriate cause(s) of action may also require discovery and depositions beyond the scope of the history provided by the patient/client, in order to find the best and most recovery for our client.

The attorneys at Heiting & Irwin have over 50 years experience in handling medical negligence claims, both on behalf of the plaintiff/patient, as well as defending hospitals and physicians. We have this unique experience to handle your medical claims.

If you have a potential claim for medical negligence and/or medical battery, contact us at the Law Offices of Heiting & Irwin for a free, initial consultation.

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