Mayr v. Osborne, 293 Va. 74

Dr. Matthew Mayr performed posterior cervical foraminotomy and fusion intended for C5–C6 on Michael Osborne but inadvertently fused C6–C7; post-op x-rays revealed the wrong level.
Dr. Mayr informed Osborne and later performed corrective surgery to remove hardware at C6–C7 and operate at C5–C6.
Catherine Osborne (administrator of Mr. Osborne’s estate) sued, alleging negligence and battery; she nonsuited negligence and tried battery only.
Plaintiff’s battery theory: the operation on C6–C7 exceeded the scope of consent and thus was a battery.
Defendant’s facts: Dr. Mayr testified he intended the C5–C6 operation, warned of risk that hardware can be misplaced, and that wrong‑level surgery can be a recognized complication.
Trial court entered judgment for plaintiff after motions to strike by defendant were taken under advisement; appeal followed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether wrong‑level surgery can constitute battery	Osborne: surgery on C6–C7 exceeded consent for C5–C6 and thus was battery	Mayr: the act was unintentional/complication and thus negligence, not battery	Battery requires intentional, substantially unauthorized contact; wrong‑level due to mistake/complication is negligence, not battery
Whether failure to disclose risk converts consent into battery	Osborne: lack of warning about misplacement meant consent was uninformed and battery	Mayr: nondisclosure (if any) sounds in negligence — breach of disclosure standard	Failure to disclose is generally negligence; undisclosed risks rarely convert consented procedure into battery
Whether expert testimony was required	Osborne proceeded without expert on negligence after nonsuiting that claim	Mayr: malpractice claims ordinarily require expert proof of standard of care and causation	Court: negligence claim (including disclosure breaches) ordinarily requires expert testimony; battery claims generally do not, but battery not established here
Adequacy of consent when procedure performed on adjacent anatomy	Osborne: consent to procedure on one level did not cover operation on adjacent level	Mayr: he performed the consented procedure albeit at an adjacent level by mistake	Court: consent to the procedure was to that kind of operation; performing at adjacent level unintentionally does not amount to intentional deviation required for battery

Pugsley v. Privette, 220 Va. 892 (recognizing "technical" medical battery where consent revoked or terms ignored)
Washburn v. Klara, 263 Va. 586 (battery where surgeon intentionally operated beyond consented level)
Woodbury v. Courtney, 239 Va. 651 (battery when physician intentionally performed a significantly different procedure than consented)
Woolley v. Henderson, 418 A.2d 1123 (distinguishing negligent wrong‑level operations from intentional battery)
Gerety v. Demers, 589 P.2d 180 (expert testimony ordinarily not required to prove battery; issue is consent)
Cobbs v. Grant, 502 P.2d 1 (undisclosed inherent complications usually sound in negligence, not battery)