Battery claim alleging lack of informed consent classified as a “medical malpractice” claim that requires medical expert affidavit

Humboldt Gen. Hosp. v. Sixth Jud. Dist. Ct., 376 P.3d 167 (Nev. 2016)

This case involved a patient who carried an intrauterine device (IUD) surgically implanted at the defendant hospital. One year after the IUD’s installation, the plaintiff received a letter from the hospital stating that the IUD was not approved by the FDA because it was shipped from Finland to a Canadian pharmacy rather than to a location in the United States. This IUD was identical to FDA-approved IUDs manufactured at the same plant in Finland. The patient filed a battery suit against the hospital and the doctor who installed the IUD. In that suit, she alleged that the defendants “knew or reasonably should have known that [she] did not consent to the implantation in [her] body of [an] IUD which lacked FDA approval.”

The Nevada Supreme Court ruled that this suit sounded in medical malpractice and consequently must have been accompanied by an affidavit from a qualified medical expert. The Court explained that “A battery is an intentional and offensive touching of a person who has not consented to the touching, and [it] is well settled that a physician who performs a medical procedure without the patient’s consent commits a battery irrespective of the skill or care used. Courts typically only allow consent issues to proceed as battery claims in those circumstances when a doctor performs an operation to which the patient has not consented” (citations omitted).

The Court then went on to clarify that “The distinction between informed consent and battery claims is based on the concept that a doctor may show, in informed consent cases, that the disclosure he omitted to make was not required within his medical community. However, expert opinion as to [the] standard [of care] is not required in a battery count, in which the patient must merely prove failure to give informed consent and a mere touching absent consent” (citations omitted). Based on these observations and the facts of the case, the Court drew the following conclusion:

“Accordingly, where a plaintiff claims not to have consented at all to the treatment or procedure performed by a physician or hospital, we conclude that such an allegation constitutes a battery claim and thus does not invoke [the] medical expert affidavit requirement. However, … where general consent is provided for a particular treatment or procedure, and a question arises regarding whether the scope of that consent was exceeded, an expert medical affidavit is necessary.”

This decision is absolutely correct, as well as important and useful as a precedent.