What is Medical Battery?

Medical battery is intertwined with the legal theories of assault and battery. Assault occurs when one party tries to inflict physical harm onto another. Battery occurs when one actually inflicts physical harm on a person. Assault is a type of attempted battery.

Medical Battery Definition

Medical battery occurs when a medical professional performs a procedure without the patient’s informed consent or against their explicit refusal. Unlike medical malpractice, which is based on negligence, medical battery is an intentional act. The harm does not need to result in physical injury; even offensive or unwanted touching is sufficient for a claim. The legal basis for medical battery is rooted in California Civil Code § 3294, which allows for punitive damages in cases involving intentional harm. Additionally, the precedent set in Cobbs v. Grant (1972) clarifies that informed consent is a key factor in distinguishing medical malpractice from medical battery. Courts have consistently ruled that performing a medical procedure without a patient’s consent unless in an emergency constitutes battery.

Medical battery involves intent. The plaintiff is not required to prove that the medical provider committed the act intentionally to bring about that harm,  but the plaintiff must prove that the medical provider meant to physically do the act. One of the most common cases of a medical battery is when a medical procedure is conducted without the consent of the patient.

Examples of Medical Battery

Medical battery could take place in many different ways. Some of the most common examples of medical battery include:

• When the medical provider performs a procedure without the patient’s consent
• When the medical provider performs a different procedure than what the patient consented to
• When the medical provider performs a procedure that the patient had expressed conditional consent to
• When the medical provider performs a substantially different procedure than what the patient accepted

For example, if you had consented to the doctor to have your right kidney removed, but the doctor removed your left kidney, you may have a claim for medical battery against the doctor for having your left kidney removed.

What is Informed Consent?

Informed consent means that a patient must be fully aware of the risks, benefits, and alternatives of a medical procedure before agreeing to it. Consent must be:

• Voluntary: The patient must not be coerced.
• Informed: The patient must understand the procedure and potential risks.
• Specific: The consent applies only to the procedure agreed upon.

Informed Consent with Medical EmergencieS

In certain situations, a medical provider may act without consent, but only if:

• The patient is unconscious and the procedure is immediately necessary to save their life.
• The patient is mentally incapacitated, and a legally authorized guardian or healthcare proxy has consented.
• No legal representative is available, but delaying treatment would result in significant harm.

However, if no emergency exception applies, performing a procedure without explicit consent may be grounds for a medical battery claim.

Can you give informed consent?

Informed consent can be given orally or in writing. Informed consent is most likely given in writing in medical cases through a waiver signed by the patient while in the hospital prior to the surgery.

What is the difference between medical malpractice and medical battery?

Medical malpractice and medical battery are oftentimes confused as one. Although both take place in a medical environment, medical malpractice is a broader term used to describe cases where healthcare providers have been negligent. Examples of medical malpractice include:

• Surgical mistakes
• Birth injuries
• Failure to treat an injury
• Misdiagnosis

Medical battery involves touching the patient, whereas medical malpractice involves negligence on behalf of the healthcare provider.

How do you prove medical battery?

There are different elements that an attorney must meet in order to have a successful medical battery claim against a defendant. Medical malpractice involves negligence elements, whereas a medical battery case involves proving elements that are more in line with the legal term of battery. The different elements that an attorney has to prove include:

• Intent: The medical provider must have intentionally performed the physical act (e.g., conducting surgery without consent). Even if they did not intend to cause harm, the act of touching itself must be intentional.
• Causation: This is demonstrated through medical records, witness testimony, and expert reports. Courts assess both actual cause (“but for the provider’s actions, the harm would not have occurred”) and proximate cause (whether the harm was foreseeable).
• Harmful or Offensive Contact:A patient does not need to suffer an injury for medical battery to be proven. Courts consider whether the contact was offensive, non-consensual, or violated the patient’s dignity.

What are the damages for a medical battery case?

Damage does not necessarily need to be severe in order for you to have a claim against the defendant. For example, a patient who is not injured may still have a claim against the medical provider for medical battery. Harmful touching does not necessarily need to cause any type of injury under medical battery.

The different damages you could receive in the medical battery include:

• Economic damages: this includes damages that could be easily calculated such as medical bills, lost wages, lost future wages.
• Non-economic damages: this type of damage is most common when the plaintiff has not endured many injuries from a medical battery. This includes emotional distress, depression, PTSD, etc.

How much does a medical battery attorney cost?

Several attorneys work at an hourly rate, meaning that an attorney will bill you every single hour or they have worked and you have to pay for them upfront. Our personal injury attorneys work on a contingency fee basis, which means that you will only have to pay us when and if we receive compensation for you through a judgment or a settlement. We understand that many may not have funding to obtain an attorney and pay for them upfront. For more information regarding our contingency-fee attorneys, contact us today.

Frequently Asked Questions

Can I sue for medical battery if I gave consent but the doctor performed a different procedure?

Yes, you may have a valid claim for medical battery if the doctor performed a procedure that substantially differed from what you originally consented to. For example, if you agreed to have a tumor removed from your right arm but the doctor operated on your left arm instead, this could constitute medical battery. Even if the procedure was medically necessary, performing it without your explicit consent violates your rights.

What is the difference between implied consent and informed consent in medical treatment?

Implied consent occurs when a patient’s actions suggest they are willing to receive treatment, such as rolling up their sleeve for a vaccine. Informed consent, on the other hand, requires a medical provider to explain the procedure, its risks, benefits, and alternatives before obtaining the patient’s explicit approval—usually in writing. In emergency situations where a patient is unconscious and unable to provide consent, doctors may rely on implied consent if the treatment is necessary to save the patient’s life.

Does medical battery only happen in hospitals, or can it happen in other medical settings?

Medical battery can occur in any healthcare setting, including hospitals, doctor’s offices, urgent care centers, nursing homes, and even during home healthcare visits. Any unauthorized medical procedure, physical treatment, or intervention performed without proper consent can be considered medical battery. This includes situations where a dentist extracts the wrong tooth, a nurse administers medication against a patient’s wishes, or a physical therapist applies force without consent.

Can I file a medical battery lawsuit if I wasn’t physically harmed?

Yes, you can still file a medical battery lawsuit even if you did not suffer a physical injury. In medical battery cases, the harm does not have to be physical—the key element is that the touching or procedure was performed without your consent. Emotional distress, anxiety, and violation of personal dignity are valid grounds for seeking damages, even if no physical injury occurred.

What types of damages can I recover in a medical battery lawsuit?

Victims of medical battery may be entitled to economic and non-economic damages depending on the circumstances of their case. Economic damages include compensation for medical bills, lost wages, and future healthcare costs related to the incident. Non-economic damages cover emotional distress, pain and suffering, and loss of dignity. In some cases, punitive damages may also be awarded if the medical provider’s actions were particularly egregious or intentional.

What to Do If You Believe You Were a Victim of Medical Battery

If you suspect that a medical provider performed a procedure without your consent, consider taking the following steps:

1. Document the Incident: Write down details such as the date, location, medical staff involved, and any witnesses.
2. Request Your Medical Records: These can provide proof of procedures performed and any signed consent forms.
3. Consult a Legal Professional: A medical battery attorney can assess whether you have a valid claim.
4. Report the Incident (If Applicable): You may file a complaint with the state medical board if you believe the provider violated ethical standards.
5. Take Legal Action: If your case qualifies, an attorney can help you seek damages, which may include medical costs, emotional distress, and punitive damages.

If you are unsure whether your experience qualifies as medical battery, a free consultation with a legal expert can help clarify your options.

Contact Our California and Nevada Medical Battery Lawyers Today

Medical battery involves several different types of elements that need to be proven in order to have a strong case. That is why it is very important to hire an experienced medical battery attorney to pursue your claims for you to make sure you received the maximum compensation for your injuries. We understand that a medical battery can leave you with severe physical injuries, along with the emotional distress you may feel after enduring such trauma.

We want you to know that you are not alone. You do not have to pursue these claims on your own. Our attorneys are here and on standby via phone, email, or in-person for you. During our free no-risk consultation, we will discuss whether you have a valid medical battery claim against a medical professional. Contact our California medical battery lawyers today to schedule your free initial consultation.

***Disclaimer: This page is created by Heidari Law Group for educational purposes. This article provides a general understanding of the law. It does not provide specific advice. By using this site and reading through this page, there is no attorney-client relationship created between you and any member of Heidari Law. Further, due to the constant change of the law, some parts of the information above may no longer be good law.