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Vermont Supreme Court Finds No Battery When Less Invasive Procedure Is Performed


HLD, v. 33, n. 12 (December 2005)

Vermont Supreme Court Finds No Battery When Less Invasive Procedure Is Performed 
Vermont's highest court held October 21 that a patient could not prove medical battery against a surgeon who performed a less invasive procedure than that which had been consented to by the patient. 
Plaintiff Paul Christman went to defendant Gordon Davis, a periodontist, to treat his gum recession and root exposure. Plaintiff consented to have Davis perform a tissue graft. During surgery, Davis opted not to perform a tissue graft, and instead performed a flap procedure. After later learning that the procedure had not achieved the desired result and that he would have to undergo a tissue graft, plaintiff sued Davis, claiming dental malpractice, lack of informed consent, and battery. Plaintiff eventually dismissed the malpractice and lack of informed consent claims, and proceeded solely on the battery claim.
Davis moved for summary judgment, arguing that common law medical battery was pre-empted by Vermont's informed consent statute, 12 V.S.A. � 1909, and plaintiff was not battered because the flap procedure was within the bounds of his consent. The trial court found the battery claim was not pre-empted, but that performing a less invasive procedure on a part of the body to which plaintiff consented was not battery. Plaintiff appealed. 
The Vermont Supreme Court affirmed. The high court first noted the difference between cases involving no consent and those involving a lack of informed consent. "Generally, battery occurs only when a physician performs an operation for which there was no consent. If the patient does provide consent for the procedure employed, but receives inadequate disclosures of the alternatives and foreseeable risks and benefits of the alternatives, liability must be based on lack of informed consent, and a claim of medical malpractice in failing to provide the necessary disclosures," the court said.
The high court agreed with the trial court that plaintiff's claim was not pre-empted by Vermont's informed consent statute. That statute regulated medical malpractice actions, defined as actions involving negligence, the court said. Here, plaintiff claimed an intentional tort, not negligence. In addition, plaintiff's claim is based on lack of consent, not lack of informed consent, the high court found. The high court found the plain language of the statute "states the Legislature had no intent to change the availability or elements of a claim for common-law battery."
The high court next turned to whether the grant of summary judgment for defendant was proper. The high court first found that, "[b]ased on the undisputed facts in the record, plaintiff's claim is that defendant did less than he promised--that is, defendant did not go further and do the tissue graft--and that was why the procedure was unsuccessful."
The high court noted that other courts have generally refused to find battery where a physician chooses to perform a less invasive procedure than that discussed with the patient. The high court agreed with that reasoning and thus found plaintiff had no valid claim for battery against Davis because the flap procedure was within the bounds of the consent given by plaintiff. 
The court noted, however, that plaintiff may indeed have a valid claim against Davis for medical malpractice or lack of informed consent. But because those claims were dropped, the court did not reach those issues. 


Christman v. Davis, No. 2004-388 (Vt. Oct. 21, 2005). To read the case, go to


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