A battery claim in medical malpractice is recognized under a variety of circumstances. Defined loosely as “any non-consensual touching,” medical battery usually occurs in instances where a physician either exceeds the scope of treatment or does not obtain proper consent for a procedure. Similarly, a battery claim also arises when a patient gives limited or conditional consent that is disregarded. In Murphy v. Implicito, 392 N.J. Super. 245 (2007), the Appellate Division established new precedent on calculating damages when a patient consents to a medical procedure, but not to a component part of that procedure.

David Murphy alleged that defendant orthopedists implanted a cadaver bone without his consent during back surgery. During the procedure, bone fragments were removed and plaintiff’s own bone was grafted to his spine. The cadaver bone was then used to create dowels for the bone graft. The grafted bone did not fuse and the plaintiff was left with residual pain and was disabled. A second surgery was performed and the cadaver bone removed. Post-operatively, plaintiff continued to experience pain and disability. He was subsequently diagnosed with depressive and pain disorder.

The plaintiff filed suit and alleged that he had consented to back surgery only on the condition that a cadaver bone not be used. He claimed to have instructed the physicians that any additional bone use should be taken from his hip. The defendants did not recall this conversation, and it is unclear which physician involved in the procedure signed the consent form. During trial, the plaintiff’s expert, an orthopedic surgeon, testified that some patients find cadaver bone objectionable due to concern with disease or reactions to foreign proteins. He concluded that if the plaintiff “specifically advised” the defendants not to use a cadaver bone, then a deviation of care transpired.

However, plaintiff’s expert also acknowledged that nonfusion is always a potential surgery risk. All experts agreed that there was no increased risk of fusion failure due to the allograft bone. There was no contention that the procedure was performed negligently. Most important, no expert opinion was offered that the cadaver bone caused the first surgery to fail. Instead, plaintiff claimed he was entitled to battery damages arising not only from the cadaver bone, but from the entire surgery.

The trial court granted involuntary dismissal of the complaint after trial was concluded. On appeal, it was noted that battery can occur when a “substantially different” procedure is performed. The trial judge had concluded that no battery occurred since use of the cadaver bone was not substantially different from the authorized procedure. The Appellate Division disagreed and found support from case law in Arizona and California.

The Arizona case concerns a patient who instructed a nurse “on three separate occasions she would accept only morphine or dermerol” for an MRI. Nonetheless, fentanyl was administered. It was held that the patient had a cause for battery. Duncan v. Scottsdale Med. Imaging Ltd., 70 P.3d 435, 441, 443 (Ariz. 2003). Likewise, in the California case, a patient consented to surgery only on the condition that family-donated blood be used. Instead, HIV-contaminated blood from the general hospital supply was used. Again, it was held that the patient had a valid battery claim. Ashcraft v. King, 278 Cal. Rptr. 900 (Ct. App. 1991).

Accordingly, in an unpublished opinion, the Appellate Division affirmed the dismissal of an informed consent claim, but reinstated claims for battery and breach of contract. In addition, the court restored the plaintiff’s spouse’s per quod claim, which was premised on the breach of contract theory. Prior to retrial, a motion was filed to clarify the scope of damages.

As to potential damages, the trial judge distinguished the current case from the Supreme Court’s holding in Perna v. Pirozzi, 92 N.J. 446 (1983). The Perna court found that a valid battery claim exists when a patient consents to surgery by one surgeon, but is operated on by another. Significantly, with any battery claim, Perna affirmed “proof of an unauthorized invasion of the patient’s person, even if harmless, entitles him to nominal damages . . . . The plaintiff may further recover from all injuries proximately caused by the mere performance of the operation, whether the result of negligence or not.”

In other words, an award beyond nominal damages may be considered for all injuries resulting from a surgery performed without a patient’s consent � even in the absence of negligence. However, in Murphy, since the plaintiff did consent to surgery, the trial judge held that damages were limited to use of the cadaver bone, not the entire procedure. Further, the spouse’s per quod damage claim was dismissed. The court determined that no such claim exists under a breach of contract theory. Once again, plaintiff appealed the trial court’s ruling.

Summarizing the applicable principles of battery, the Appellate Division explained: ” . . . if the condition that a patient places on his consent to a surgical procedure is material, and that condition is not fulfilled, the surgery is rendered a battery, just as if the doctors had not obtained the patient’s consent in the first instance.” Accordingly, the court only partially agreed with the trial judge’s ruling that damages are limited to use of the cadaver bone and not the entire operation.

The Appellate Court observed that in a breach of conditional consent, damages normally consist of the “excess harm” borne by the specific breach. In the instant case, such damages can only be calculated if a jury is able to distinguish harm caused by the cadaver bone apart from that of the entire operation. However, there was no clear standard for damages in the event that a jury is unable to “distinguish between the harm he suffered from the use of cadaver bone and the harm he sustained from the operation itself.”

Innovatively, it was held that the plaintiff may, in fact, recover damages for the entire procedure if a jury is unable to segregate harm caused only from the cadaver bone as opposed to the entire surgery. The court’s measured ruling is buttressed by the Restatement signifying that where “the harm caused by the excess is severable from that resulting from the privileged act, the actor is . . . liable only for the excess,” but where “it is impossible as a practical matter to sever the harm resulting from the excess from that caused by the permitted act, the actor is subject to liability for the entire harm.” Restatement (2nd) of Torts � 892A, (1979).

Moreover, the defendant is assigned the burden of proof in distinguishing damages caused by an excessive act from injuries related to the surgery in general. The court analogizes this requirement to medical malpractice cases where pre-existing injuries are aggravated by alleged negligence. In such circumstances, the defendants also bear the burden to differentiate the plaintiff’s alleged damages.

The Murphy decision is also noteworthy as the first time a New Jersey court addressed whether a spouse can recover per quod damages for personal injury under a breach of contract claim. The holding clarifies that as long as breach of a contractual duty is a proximate cause of a personal injury, “the nature of the wrongdoer’s conduct is not particularly relevant.”

The precedent articulated in Murphy carries important implications when calculating damages for medical battery. In similar situations, it is probable that juries will find it difficult to isolate damages caused from an excessive act from that of the entire medical operation. Under such conditions, a jury now has the option of awarding damages from the entire procedure, even when consent is obtained. This likelihood is further compounded by the burden of proof being placed on defendants.

Keating is a partner and Singleterry an associate in the Cranford office of Dughi & Hewit. Keating is vice-chair of the New Jersey State Bar Association’s Medical Malpractice Special Committee.