dissenting.
I respectfully dissent. In a lack of consent medical battery case, I would dispense with the notion, perpetuated by the majority, that consideration of the traditional battery element of “harmful or offensive contact” is meaningful or helpful. Rather, I conclude it is, as a practical matter, pointless and, as illustrated by the instructions in this case, potentially confusing to the point of error to require juries to assess whether contact is “harmful or offensive” in such cases. Further, given the ambiguous instructions in this case, I would grant a new trial.
As the majority cogently explains, a claim of lack of consent, doctrinally, sounds in battery, and a battery requires proof, inter alia, that the actor intended to cause a harmful or offensive touching. Majority Opinion at 190-92; see also Dalrymple v. Brown, 549 Pa. 217, 229, 701 A.2d 164, 170 (1997). As the majority further notes, we conceive of a claim of lack of consent to be a battery because “surgery performed without the patient’s consent constitutes an intentional and offensive touching.” Majority Opinion at 191; see also id. (agreeing that “by proving that the surgery or ‘touching’ was intentional and not consented to, a patient establishes that it was ‘offensive’ ”).
However, beyond enforcing the doctrinal tidiness of battery theory, instructing juries to consider the “harmful or offensive” nature of the contact is not meaningful, and, at the same time, causes mischief and confusion. Outside of an emergency context, unconsented-to surgery is ipso facto a battery. See Montgomery v. Bazaz-Sehgal, 568 Pa. 574, 584-85, 798 A.2d 742, 748 (2002) (“surgical or operative procedures, if not consented to, amount to a battery”); Moure v. Raeuchle, 529 Pa. 394, 404, 604 A.2d 1003, 1008 (1992) (“an operation without the patient’s consent is a technical assault”). Yes, unconsented-to surgery is also a “harmful or offensive” touching, and, yes, a harmful or offensive touching is a battery. But that intermediate logic is superfluous in lack of consent eases: again, outside of an emergency context, all unconsented-to surgeries are batteries, and, as a matter of proof for the parties, and as a matter of fact finding for the judge or jury, a lack of consent case rises and falls solely on consent. See Grabowski v. Quigley, 454 Pa.Super. 27, 684 A.2d 610, 615-16 (1996) (“The dispositive issue in this [lack of consent] claim is the nature and scope of Appellant’s consent.”). For this reason, any consideration of “harmful or offensive” touching falls out of the equation; indeed, in this Court’s decision reaffirming the battery foundation for lack of consent claims, we analyzed the issue without any mention of the harmful or offensive conduct element. See Montgomery, supra; see also Moure, supra.
The jury instructions in this case are a perfect illustration of the confusion that can be engendered by mindlessly adhering to the harmful or offensive touching paradigm in these medical battery cases. Here, the jury was instructed as follows:
A physician must obtain a patient’s consent to perform surgery. Consent may be verbal or written. Consent is not required in an emergency. However, even in an emergency surgery should not be performed if the patient refuses consent.
A physician’s performance of surgery in a nonemergency without consent, or the performance of surgery in an emergency when the patient has refused consent is considered a battery under the law. A battery is an act done with the intent to cause a harmful or offensive contact with the body of another, and directly results in the harmful or offensive contact with the body of another.
*194If you find the defendant Dr. Nem-ser operated on the plaintiff in a non-emergency without consent, or in an emergency where the plaintiff refused consent, then you must find that the defendant Dr. Nemser committed a battery; otherwise no battery occurred.
A physician who commits a battery on a patient is liable for all the injuries caused by that surgery or treatment regardless of whether the surgery is performed or the treatment is administered with proper skill and care. Damages are recoverable for this unauthorized touching regardless of whether actual injury occurs.
N.T., 5/15/09, at 51-52 (R.R. 3S97a-3398a).
The second paragraph above instructed the jury that a battery requires an “intent to cause a harmful or offensive contact.” (Significantly, as I discuss below, harmful or offensive contact was not defined.) The third paragraph instructed that, if surgery is done without consent, it is a battery. However, if the instruction in the third paragraph is correct, and the majority and I agree it is, what was the point of the instruction in the second paragraph? That is, if a jury finds there was no consent, as a matter of law the contact was harmful and offensive. So, why additionally instruct the jury on harm and offense? Is it merely so they understand the legal theory behind our medical battery jurisprudence? Obviously not. An instruction on harmful or offensive contact adds nothing to a jury’s deliberations, is at best redundant, and at worst confusing. I would reinforce the principle that unconsented-to touching is the sine qua non of this type of medical battery and would disallow, in such cases, any instruction regarding harmful and offensive contact.1
Moreover, I find the majority’s conclusion that the jury in this case could not have been confused to be practically and logically erroneous. Again, the jury was instructed that a battery requires an “intent to cause a harmful or offensive contact” and, further, that, if surgery is done without consent, it is a battery. Critically, the jury was given no guidance on what is harmful or offensive contact. Thus, as Appellants contend, the jury in this case quite reasonably could have found both that: (1) the doctor did not intend to cause a harmful or offensive contact (perhaps because, unguided by instructions, they concluded the surgery was beneficial) and (2) the patient refused consent. The instructions do not preclude these dual findings.
Further, based on finding # 1 and the instruction in the second paragraph, the jury would have concluded the doctor’s conduct was not a battery, while, based on finding # 2 and the instruction in the third paragraph, the jury would have concluded the doctor’s conduct was a battery. Absent from the jury instructions was any guidance about how to avoid or resolve such conflicting conclusions. Rather, the majority holds, it seems, that the last— correct — instruction controls, see Majority Opinion at 192 n. 10 (“[T]he trial court unambiguously followed the definition of battery with an express direction that a battery is committed if the patient did not consent”), while ignoring the potential and likely confusion engendered by the prior instruction.
*195The majority understands the instructions to be accurate because we understand, as a matter of legal theory, that “surgery performed without the patient’s consent constitutes an intentional and offensive touching.” Majority Opinion at 191. However, the jury in this case was never provided with that critical logic. Without that essential piece — indeed, without any guidance on what “harmful or offensive contact” is — the jury was permitted to decide for itself whether the contact was harmful or offensive, and to arbitrarily resolve any potentially conflicting conclusions. For this reason, contrary to the majority, I cannot conclude the jury was “clearly, adequately, and accurately” instructed on the law. See Commonwealth v. Washington, 592 Pa. 698, 728, 927 A.2d 586, 608 (2007). Further, as I cannot say the ambiguous instructions could not have contributed to the verdict, I would grant a new trial. See Levine v. Rosen, 532 Pa. 512, 517, 616 A.2d 623, 626 (1992).
. Indeed, I would favor, as the majority notes. Majority Opinion at 188-89 & n. 3, an approach to our jury instructions in lack of consent cases similar to that developed for claims of lack of informed consent, which diminishes the formal battery foundation for such claims and eliminates discussions of harmful or offensive contact. See Pennsylvania Suggested Standard Jury Instruction (Civil) 14.90, "Informed Consent. — Nondisclosure” (formerly 11.08A); id. 14.110, "Damages” (formerly 11.08C).