A case discussing the elements of medical battery.

The plaintiff went to a doctor for a spinal injection to be given under sedation. He gave her the shot but didn’t sedate her. The shot must have worked since she sued for battery rather than malpractice. The trial court gave the RAJI battery instruction requiring harmful or offensive contact. From a defense verdict the plaintiff appeals.

Her argument is that in a medical-battery case the question is not whether the intentional touching was harmful or offensive but whether it was consented to. The Court of Appeals agrees. “A patient need only prove she was damaged when the physician wilfully [sic] performed a procedure to which she did not consent.” (Apparently the author or the author’s spell-checker is British; in America “willful” has been standard for a few generations now.) (LATER EDIT: The court has today — May 10, 2016 — issued a “corrected” opinion; as far as we can tell the only change is to correct that spelling error. That explains why our date for this case may differ from the one on the opinion you read.)

The defendant tried to argue in various ways that the error wasn’t important but wasn’t helped by his closing argument, which had been that the RAJI instruction requires “intent to harm.”

(link to opinion)