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Minn. Court Holds Medical Battery Does Not Require Expert Affidavit.

By Greg Piche'

Most states have some form of statute or common law obligation that requires a plaintiff in a medical malpractice case to obtain an opinion or affidavit from a qualified physician that the conduct of a defendant physician was outside the standard of care. The reason is ostensibly that issues of medical standards and causation are outside the knowledge base of most jurors and courts and therefore must be supported by expert opinion. On Jane Doe v. Dr. Albert Tsai in the United States Disctrict Court for the District of Minnesota, 2008 WL 4949156 (D.Minn. 2008), the Plaintiffs allege that Jane Doe was a minor who was sedated amd subjected to an involuntary gnyecological and rectal exam, without the consent of her paremt pr guardian. The story behind the story is not related here. Jane Doe's mother was apparently escorted against her will from the Henneprin County Medical Center by law enforcement officials when she objected to the procedure on her daughter. Jane's parents filed an action claiming violation of civil rights under 42 U.S.C.A. Section 1983 while acting under color of state law and for intentional infliction of emotional harm. The defendants filed a motion to dismiss on the basis that the plaintiffs had not obtained an expert affidavit required for medical malpractice cases under state law. The Court held that even if sounding in medical malpractice, the case is one of medical battery, which does not require a medical expert opinion because causation is easily proven in a battery case and does not require knowldege of complex ccientific or technical issues. The court denied the motion writing,

In battery, the focus is on the patient's right to be free from a touching that is of a substantially different nature and character from that wo which he or she has consented. Thus, the physician sued in a battery case has very few defenses. . . .In battery cases, no expert testimony need be adduced, for the question is whether the physician, in fact, told the patient of the nature and character of the procedure and the patient consented to that procedure.

Full post as published by Healthcare Law Blog on December 15, 2008 (boomark / email).