Consent is a very specific thing. Consent to one leg does not imply consent to the other. The thing to focus on is whether the doctor knew or should have know that his operating on the wrong leg was harmful or offensive contact. Now, granted, he did not know he was operating on the wrong leg. This is why it may be better to try this case in negligence. Intent is all about the actors state of mind. There are two elements to a battery:
1. Intent (purpose to, or knowledge that actions would) cause:
a. harmful or
b. offensive contact
2. Harmful or offensive contact
Battery is an intent tort. It revolves around the doctor's subjective intent.
We know that offensive and harmful contact resulted. The guy lost his good leg.
We may have some trouble determining whether the doctor had the requisite intent to have committed a battery.
We must analyze what he knew, (not: should have known, thats negligence), and what he had the purpose to do.
If he was negligent, and he was aware of his negligence at the time he amputated the leg. Say, for instance, that he had not looked at the patient's file, and he knew
that this lack of knowledge could result in amputating the wrong leg, then he probably committed a battery, because he had knowledge
that he could be causing harmful and offensive contact. The fact the he may have had doubts whether his negligence was resulting in harmful and offensive contact, is the weakness in the battery argument. It is important to note that the battery claim revolves around what he actually knew in his mind. Did the thought enter his mind that he was amputating the wrong leg, or was he thinking he might be amputating the wrong leg. The latter may still be battery, but it will be more tenuous.
So, really, in court, you could pursue a negligence claim and a battery claim resulting from the negligence claim. The important thing is to concentrate on what the doctor knew or meant to do.
Hi! You give a very good explanation of these things. The only question I have...or the only thing I question rather, is...since the only context I could think of where a doctor would have opportunity to amputate a "wrong" leg would be where he had permission to ampute at least "one" leg...thus, in the hypo where Dr. amputates wrong leg, it could only be construed as professional or medical malpractice....