concurring in part and dissenting in part.
I concur that Count II of the Boruffs' complaint alleging that defendants were negligent for failing to adequately disclose the risks or alternatives to surgery is an action for medical negligence falling under the Medical Malpractice Act and must therefore be dismissed. I respectfully dissent from the conclusion of the majority that Count I alleging battery is a matter of medical negligence.
It is hornbook law that a surgeon who exceeds the scope of a patient's consent commits battery:
The defendant's privilege is limited to the conduct to which the plaintiff consents, or at least to acts of a substantially similar nature. * * * * Consent to operate on the right ear is not necessarily consent to operate on the left, and a patient who agrees to a blood test or a minor operation on his nose does not thereby consent to a spinal puncture, or the removal of his tonsils. With the patient unconscious under an anaesthetic, and unable to be consulted, the mere desirability of the operation does not protect the surgeon, who becomes Hable for battery-which, in addition to making him liable for at least nominal and perhaps punitive damages, renders quite immaterial any question of whether he has complied with good professional practice.
w. PAGE KEETON, PROSSER AND KEETON ON TORTS 118-19 (5th ed. 1984).
The majority confuses the issue of informed consent, i.e. was Boruff adequately advised of the risks of the operation, with the issue of consent to Milan's performance of the surgery. Just as a surgeon commits battery by operating on the left ear of a patient who has consented to an operation on the right ear, so a surgeon commits battery by performing a consented-to operation on a patient who has refused permission for the operation to be performed by that particular surgeon. Boruff consented to bave Jesseph perform the operation. She did not consent to have Milan perform the operation. In fact, she specifically withheld that consent. I see no difference between the facts before us and a case where a patient consents to hand surgery and receives foot surgery instead. In both situations, the consent is limited and if that limit is crossed, a battery occurs.
*1300The pleading filed by Boruff, while erroneously referring to battery as a negligent rather than intentional tort, sufficiently identifies a cause of action outside the Medical Malpractice Act. Boruff alleges that Milan committed a battery when he performed an operation on her without her consent. In order to prove her battery allegation, she needs to show a non-consensual harmful or offensive contact (operation) resulting from an act intended to cause her to suffer the contact (use of hand or surgical instrument to invade her body). Milan's ignorance that Boruff not only did not consent to his performance of the operation, but specifically withheld consent, is not a defense. A mistaken belief that consent has been granted will not excuse or justify the conduct.
The question is not whether Milan's surgical technique was compatible with the standard of care for doctors in that area. The success or failure of the operation is immaterial to the battery claim. Had the operation been completely successful, Bo-ruff would still be entitled to damages if she proved the elements of her claim.