A battery claim against a Pennsylvania hospital may proceed, a Lawrence County judge has decided, ruling that the hospital lacked consent to continue administering a test after the patient asked doctors to stop because she was in excruciating pain.

The crux of the matter before Court of Common Pleas President Judge Dominick Motto is whether the estate of Edith Eisenhuth had sufficiently pled a cause of action for the tort of battery. The defendant, Jameson Hospital, argued the case was one of professional negligence and, because the plaintiff estate administrator did not submit a medical expert report in the matter, the case should be dismissed on preliminary objections.

Under state law, when a battery case is grounded on the lack of consent to a certain procedure, expert medical testimony is not necessary.

Motto, not without a primer on the state Supreme Court’s leading opinion on battery in a medical setting, found in favor of the estate.

In Cwynar v. Jameson Hospital, according to the opinion, Eisenhuth underwent a Venous Doppler ultrasound test on her left leg after doctors found a lump on her left calf. During the test, a hospital employee applied pressure to Eisenhuth’s leg, causing her excruciating pain, Motto said. At that point, she told the hospital employee to stop the test but, according to Motto, the employee did not stop.

Motto said Pennsylvania law spells out that the doctrine of informed consent — whether it involves a nonconsensual surgery or pure lack of informed consent — sounds solely in battery, meaning negligence principles do not apply.

The case fit the bill, as Eisenhuth revoked her consent after telling the hospital’s employee to stop the test.

“At that point, any consent that decedent had given to the medical procedure was withdrawn,” Motto said in a 16-page opinion late last month.

“Once decedent’s consent was withdrawn, further treatment was objected to by the decedent and rendered without her permission. Thus, the continued grasping of decedent’s leg constituted an unpermitted and intentional contact,” he added. “This unpermitted touching in and of itself gives rise to a civil battery action.”

The defense made several arguments as to why the lawsuit did not constitute a prima facie case of medical battery and, accordingly, why it should be dismissed on preliminary objections. But they were dismissed in turn.

First, the hospital argued that plaintiff Karen Cwynar, the administrator to the estate, did not allege the Venous Doppler was performed without Eisenhuth’s consent or that a study substantially different from the one to which the patient consented was performed.

But Motto stressed the fact that the plaintiff simply had pled consent was withdrawn upon Eisenhuth telling doctors to stop.

The court, in response to defense arguments, also elaborated on the question of whether a hospital could be held liable in a battery action.

The defense argued that because informed consent is based upon a theory of battery, and not one of negligence, a hospital cannot be held liable in such an action because a hospital cannot commit battery.

But Motto said the hospital had missed the reasoning set forth in the seminal case on the issue, Montgomery v. Bazaz-Sehgal. Where the battery is based upon a total lack of consent (as opposed to the lack of informed consent because of lacking an explanation of a procedure’s risks), a hospital is not insulated from liability.

In cases based upon lack of informed consent, Motto went on, the hospital cannot be held liable because the duty to explain the risks of a procedure lies exclusively with a physician.

“However, a case dealing with a total lack of consent does not involve a duty of a physician to provide the patient with the ‘material information necessary to determine whether to proceed with the surgical or operative procedure or to remain in the present condition,’” Motto said, citing Sinclair by Sinclair v. Block.

The hospital also made a push to get the lawsuit thrown out on the basis of medical testimony, arguing that expert testimony was required because details about the Venous Doppler test, specifically the patient’s need to have one done, were beyond the understanding of a layperson.

At the pleading stage, however, the defendant’s argument did not succeed.

“Simply put, the issue of necessity of the procedure has no bearing on the sufficiency of the allegations of a complaint in an action for battery,” Motto said.

Additionally, some damages are apparent and do not require expert testimony, Motto added, citing Montgomery.

Other defense arguments to get the case thrown out failed as well.

The case dates back to July 2009, when Eisenhuth went to the hospital with abdominal pain, distention and nausea. While at Jameson, doctors found a lump on her left leg and ordered the test.

Experiencing excruciating pain, Eisenhuth twice asked the hospital’s radiology employee, who was not named in the opinion, to stop. The employee did not.

After the test was completed, Eisenhuth’s left leg swelled and blisters formed. Upon being discharged, hospital staffers told her to come back if the blisters should break.

The next day, the blisters broke and Eisenhuth went back to the hospital.

Lawyers in the case did not return calls requesting comment, but the opinion appeared to indicate the Venous Doppler made the condition on Eisenhuth’s leg worsen — she had edema over her calf region and hematoma of that leg.

She was found to be anemic and required blood transfusions. She spent five weeks in the hospital and then spent several months visiting the Jameson South Wound Care Center on a weekly basis until March 1, 2010.

On March 5, 2010, Eisenhuth was readmitted to the hospital for sepsis and pneumonia. She died March 17, 2010.

The estate’s attorney, Frank A. Natale II of New Castle, Pa., could not be reached for comment.

Defense attorneys James W. Kraus and Janet K. Meub of Pietragallo Gordon Alfano Bosick & Raspanti in Pittsburgh were unavailable.

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI.

(Copies of the 16-page opinion in Cwynar v. Jameson Hospital, PICS No. 12-2097, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •