Present: All the Justices
JANICE WASHBURN
v. Record No. 011034 OPINION BY JUSTICE CYNTHIA D. KINSER
APRIL 19, 2002
PETER KLARA, M.D., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Joseph A. Leafe, Judge
In this claim of battery, the issue is whether the
evidence raises a reasonable inference that the defendant
surgeon intentionally performed a surgical procedure
exceeding the scope of the plaintiff’s consent. Because we
conclude that the plaintiff presented sufficient evidence
to create a factual dispute on this issue, which a jury
must resolve, we will reverse the circuit court’s judgment
striking the plaintiff’s evidence and remand the case for a
new trial.
FACTS AND MATERIAL PROCEEDINGS
In September 1997, Britt M. Borden, M.D., performed a
surgical procedure known as an anterior cervical diskectomy
on Janice L. Washburn. At the time of the operation, Dr.
Borden was training in a fellowship program at Eastern
Virginia Medical School, with Peter Klara, M.D., acting as
Dr. Borden’s supervising faculty member. The surgery took
place at the Virginia Beach General Hospital (the
Hospital).
Dr. Borden had diagnosed Washburn with C6-7
pseudoarthrosis 1 after a bone scan revealed dense scar
tissue at the C6-7 level of her spine. That scar tissue
resulted from a previous surgical fusion that Washburn had
undergone in 1994. To relieve pain in Washburn’s neck and
left arm, Dr. Borden recommended the anterior cervical
diskectomy procedure. He described the procedure as
“removing the bone and fibrous tissue that are in the area
of the old fusion that didn’t take and replacing it with
another graft, and then placing a plate on the spine to
hold it together while it heals.” Dr. Klara agreed that
Washburn was likely to benefit from the surgery.
Prior to surgery, Washburn executed a written consent
form. The form specified authorization for a “C67 Anterior
Cervical Diskectomy” and described the operation in
layman’s terms as “remove bone & fibrous tissue and replace
graft[.]” The consent form also authorized “the
performance of such operation(s) and procedure(s) in
addition to or different from those now contemplated . . .
which the . . . physician . . . consider[s] necessary or
1
Pseudoarthrosis is the “failure of spinal fusion to
occur following surgery.” Taber’s Cyclopedic Medical
Dictionary 1583 (18th ed. 1997).
2
advisable in the exercise of his[] professional [judgment]
in accordance with reasonable medical standards.”
Because the surgery allegedly caused Washburn to
suffer “permanent laryngeal and/or recurrent nerve damage,”
Washburn filed the present action against Drs. Borden and
Klara, Peter Klara, M.D., P.C., and the Hospital. 2 Washburn
asserted theories of recovery based upon medical
malpractice, emotional distress, battery, lack of informed
consent, fraud, and receiving money under false pretenses.
Prior to trial, the circuit court sustained demurrers to
Washburn’s claims of emotional distress and receiving money
under false pretenses. 3 During the trial, Washburn
2
This is the second action filed by Washburn against
these defendants. In the first case, the trial court
sustained Dr. Borden’s plea of sovereign immunity with
regard to all claims based on negligence. The court also
granted the Hospital’s motion for summary judgment.
Washburn then nonsuited her remaining claims and appealed
from the trial court’s judgment on the issue of sovereign
immunity. While that appeal was pending, Washburn filed
the present action. In an order dated November 3, 2000, we
affirmed the trial court’s judgment that Dr. Borden was
entitled to sovereign immunity on the negligence claims.
3
The circuit court also sustained the Hospital’s
demurrer to Washburn’s claim of vicarious liability and its
special plea of res judicata with regard to the other
claims asserted against it. Although Washburn assigned
error to the circuit court’s ruling with regard to the
Hospital, we granted the Hospital’s motion to dismiss
Washburn’s petition for appeal in an order dated November
8, 2001. Thus, the Hospital is not a party to this appeal.
Hereinafter, references to “the defendants” do not include
the Hospital.
3
voluntarily dismissed her claim of medical malpractice and
presented evidence to the jury only with regard to the
remaining counts.
As pertinent to the issue in this appeal, Dr. Borden
testified at trial that he performed the surgery at the C6-
7 level, as specified in Washburn’s written consent. He
denied that he operated, either intentionally or
unintentionally, at the C7-T1 level of Washburn’s spine.
However, post-operative radiology reports indicated
evidence of a fusion at the C7-T1 level, in addition to a
fusion at the C6-7 level. One of the radiology readings
admitted into evidence by Washburn stated that a “screw is
projecting over the inferior aspect of the T1 vertebral
body.” Although Dr. Borden acknowledged that Washburn’s
cervical fusion in 1994 did not involve the use of any
hardware and that he was the first person to place any
screws and plates in Washburn’s spine, he maintained that
he did not operate at the C7-T1 level. Dr. Borden also
stated that there was no medical reason to operate at the
C7-T1 level.
At the close of Washburn’s case-in-chief, the circuit
court granted the defendants’ motion to strike the
evidence, specifically finding, as pertinent to the claim
of battery, that there was no evidence that the surgery
4
exceeded the scope of Washburn’s consent. The court
subsequently entered a final order granting judgment for
the defendants. We awarded Washburn this appeal, limited
solely to the issue whether the circuit court erred in
striking the evidence with regard to the count alleging
battery. 4
ANALYSIS
We have stated that
[w]hen the sufficiency of a plaintiff’s evidence
is challenged upon a motion to strike the
evidence at the conclusion of the plaintiff’s
case-in-chief, the trial court should in every
case overrule the motion where there is any doubt
on the question.
Rizzo v. Schiller, 248 Va. 155, 159-60, 445 S.E.2d 153, 156
(1994) (quoting Brown v. Koulizakis, 229 Va. 524, 531, 331
S.E.2d 440, 445 (1985) (citation omitted)). The trial
court must also “give the plaintiff ‘the benefit of all
substantial conflict in the evidence, and all fair
inferences that may be drawn therefrom.’ ” Hadeed v.
Medic-24, Ltd., 237 Va. 277, 285-86, 377 S.E.2d 589, 593
(1989) (quoting Walton v. Walton, 168 Va. 418, 423, 191
S.E. 768, 770 (1937)); see also Powell v. Margileth, 259
4
The defendants filed separate motions to dismiss
Washburn’s petition for appeal, asserting that Washburn had
failed to file transcripts material to the consideration of
her assignments of error. Those motions were denied by an
order of this Court dated November 8, 2001.
5
Va. 244, 246, 524 S.E.2d 434, 435 (2000). Applying these
principles, we conclude that the evidence in this case,
when viewed in the light most favorable to Washburn, is
open to the reasonable inference that Dr. Borden performed
a cervical diskectomy at two levels of Washburn’s spine,
thereby exceeding the scope of her consent. Thus, we find
that the circuit court erred by striking Washburn’s
evidence with regard to the claim of battery.
This Court has recognized that the physician-patient
relationship is a consensual one. See, e.g., Pugsley v.
Privette, 220 Va. 892, 899, 263 S.E.2d 69, 74 (1980); Lyons
v. Grether, 218 Va. 630, 633, 239 S.E.2d 103, 105 (1977).
Thus, unless an emergency or unanticipated problem arises,
a physician or surgeon must first obtain the consent of a
patient before treating or operating on that patient. See
61 Am. Jur. 2d Physicians, Surgeons, and Other Healers
§ 175 (1981). “An unauthorized operation is a wrongful and
unlawful act for which the surgeon will be liable in
damages.” Pugsley, 220 Va. at 899, 263 S.E.2d at 74.
A written consent, such as the one executed by
Washburn, “does not constitute consent to an operation
other than the one to be performed when there is no
evidence that a necessity arose during the authorized
operation.” Lloyd v. Kull, 329 F.2d 168, 170 (7th Cir.
6
1964). Consequently, in the absence of such necessity, an
operation without consent or the extension of an operation
beyond the scope of the patient’s consent constitutes what
is sometimes referred to as a “‘technical’ assault and
battery.” See Lane v. United States, 225 F. Supp. 850, 852
(E.D. Va. 1964); Hively v. Higgs, 253 P. 363, 365 (Ore.
1927); Nolan v. Kechijian, 64 A.2d 866, 868 (R.I. 1949).
We discussed this form of “technical” battery in Pugsley,
where we stated that “[i]t is well established that, given
the proper factual conditions and circumstances, a patient
can maintain against a physician an action based on assault
and battery for acts arising out of the physician’s
professional conduct” and that “ ‘[a] surgical operation on
the body of a person is a technical battery or trespass
unless he or some authorized person consented to it.’ ”
Pugsley, 220 Va. at 899, 263 S.E.2d at 74 (quoting what is
now 61 Am. Jur. 2d Physicians, Surgeons, and Other Healers
§ 197 (1981)).
Later, in Woodbury v. Courtney, 239 Va. 651, 391
S.E.2d 293 (1990), we again addressed the tort of battery
in the context of medical malpractice. In Woodbury, a
patient gave her consent for a breast biopsy. When the
surgeon performed a partial mastectomy, the patient brought
an action against the surgeon, alleging, among other
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things, battery. In defense, the surgeon asserted that the
terms “biopsy” and “partial mastectomy” are synonymous and
that, therefore, the patient consented to the partial
mastectomy. With respect to the claim of battery, we held
that the trial court erred in granting summary judgment in
favor of the defendant surgeon, because the plaintiff was
not required to present expert medical testimony in order
to prove her allegations of battery. We concluded that
“[a] factual issue was created and the jury should have
been allowed to determine the extent of the permission [the
patient] granted to [the surgeon] and whether he exceeded
the scope of that permission. If [the surgeon] exceeded
the scope of that permission, then he committed a battery.”
Id. at 654, 391 S.E.2d at 295 (citing Pugsley, 220 Va. at
899, 263 S.E.2d at 74).
In the instant case, Washburn’s claim of battery is
predicated on her allegations that Dr. Borden exceeded the
scope of her consent by performing a cervical diskectomy at
the C7-T1 level of her spine, in addition to the diskectomy
at the C6-7 level to which Washburn had consented.
According to Washburn, the evidence, primarily the post-
operative radiology reports, established a prima facie case
of battery and, in light of Dr. Borden’s insistence that he
did not, either intentionally or unintentionally, fuse the
8
vertebrae at the C7-T1 level, created a factual question
for the jury to decide.
Dr. Borden, however, contends that Washburn failed to
establish a prima facie case of battery because there was
no evidence that he intentionally exceeded the scope of
Washburn’s consent. On brief, Dr. Borden acknowledged that
Washburn presented some evidence that he operated beyond
the C6-7 level and that her consent was limited to surgery
at that level. While Dr. Borden maintains that he operated
only at the C6-7 level, he nevertheless argues that, if a
fusion of Washburn’s vertebrae at the C7-T1 level occurred
during the surgery, it resulted from his negligence or lack
of skill and not because he intentionally operated at that
level. Thus, he contends that he did not commit a battery
on Washburn.
In granting the defendants’ motion to strike
Washburn’s evidence, the circuit court concluded that there
was no evidence that the surgery exceeded the scope of
Washburn’s consent. However, the radiology reports
indicating fusion at the C7-T1 level are at least some
evidence that Dr. Borden may have operated at a level other
than that specified in Washburn’s written consent.
Although the consent authorized additional operations or
procedures deemed necessary or advisable, Dr. Borden
9
admitted that there was no medical reason to operate at the
C7-T1 level.
Thus, we conclude that evidence presented by Washburn
was sufficient to present a factual issue, for the jury’s
determination, whether Dr. Borden intentionally performed a
cervical diskectomy at two levels of Washburn’s spine, thus
exceeding the scope of her consent. As we stated in
Woodbury, if a surgeon exceeds the scope of a patient’s
consent, then the doctor has committed a battery. 239 Va.
at 654, 391 S.E.2d at 295. Accordingly, we will reverse
the judgment of the circuit court and remand for a new
trial on Washburn’s claim of battery. 5
Reversed and remanded.
5
We remand the case as to all the defendants. When
the circuit court granted the motion to strike Washburn’s
evidence, the court stated from the bench that the
vicarious liability question necessarily followed the
battery claim and that, since there was no issue to go to
the jury on the battery claim, the motion to strike with
regard to Dr. Klara’s vicarious liability was also granted.
Thus, the court never addressed the merits of the question
whether Dr. Klara and his professional corporation can be
held vicariously liable for Dr. Borden’s actions. Hence,
we will not address the arguments presented on appeal
regarding that question.
10