I think it would depend on the nature of the procedure. If it were highly invasive or caused a severe physical injury you could certainly sue for punitive damages. If these factors were not present, I think punitive damages would be less likely.
the doctor INTENDED to cause the harmful contact-- he purposely took a knife and amputated the leg. the harmful/offensive contact is a battery b/c there is no consent. if you look at the actions of the dr. in this case vs. a dr. who amputates the correct leg, the only difference is the lack of consent in the operation that amputated the wrong leg. everything else is the same. there is an intentional act causing harmful contact to another---a volitional mvmt with knife causing another to lose his leg--but in your case, there is no consent, therefore its a battery.
In Tennessee at least it would be medical battery. Patient consents to a procedure, but practitioner performs a different procedure. Medical battery has been defined to us by prof. as negligence.Performance of an unauthorized procedure constitutes a medical battery. A simple inquiry can be used to determine whether a case constitutes a medical battery: (1) was the patient aware that the doctor was going to perform the procedure (i.e., did the patient know that the dentist was going to perform a root canal on a specified tooth or that the doctor was going to perform surgery on the specified knee?); and, if so (2) did the patient authorize performance of the procedure? A plaintiff's cause of action may be classified as a medical battery only when answers to either of the above questions are in the negative. Blanchard v. Kellum, 975 S.W.2d 522, (Tenn. 1998)Based on that I would say a doctor who works on the wrong limb, ear, etc., is negligent.
I think medical battery is a hybrid tort, since battery is usually an intentional tort.
Quote from: jeffjoe on November 27, 2004, 10:26:39 PMI think medical battery is a hybrid tort, since battery is usually an intentional tort.Yeah, it seems to be a little misleading. Battery should solely refer to an intentional act. It's sorta like saying "Negligent battery" *laughs*Law543
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....