Elizabeth M. BORUFF, William E. Boruff, Appellants-Plaintiffs, v. Jerry JESSEPH, M.D. and Joseph Milan, M.D., Appellees-Defendants.
No. 32A01-9102-CV-28
Court of Appeals of Indiana, First District
Aug. 20, 1991
576 N.E.2d 1297
For the reasons statеd above, the trial court‘s summary judgment on all three issues is affirmed.
AFFIRMED.
MILLER and HOFFMAN, JJ., concur.
Barteau, J., concurred in part, dissented in part, and filed opinion.
Robert A. Smith, Michael P. Bishop, Bishop, Smith & Bishop, Indianapolis, for appellants-plaintiffs.
Len E. Bunger, William K. Steger, Bunger, Robertson, Kelley & Steger, Bloomington, for appellees-defendants.
BAKER, Judge.
This appeal asks us to determine whether the word “battery” is a magic talismаn which automatically removes a patient‘s complaint against a health care provider from the purview of the Medical Malpractice Act (the Act).1 We hold that it is not, and thereforе affirm the trial court‘s dismissal of this action.
Plaintiff-appellant Elizabeth Boruff consulted defendant-appellee Jerry Jesseph, M.D. for treatment of a rectal fistula. Dr. Jesseph recommended surgery. Aсcording to the complaint, Boruff and her husband, plaintiff-appellant William Boruff, told Dr. Jesseph that he alone was to perform the operation because the Boruffs did not want Dr. Jesseph‘s partnеr, defendant-appellee Joseph Milan, M.D., to take part in the operation.
On the day of the scheduled surgery, Dr. Jesseph was delayed, and Dr. Milan per
The Boruffs timely filed their two count complaint against Drs. Jesseph and Milan simultaneously in Marion Superior Court and with the Commissioner of Insurance for review by a medical review panel. In Count I, the Boruffs alleged that the doctors maintained negligent office procedures which led Dr. Milan to perform the surgery without learning from Dr. Jesseрh that the Boruffs did not want Dr. Milan to perform the surgery. As a result of these alleged negligent office procedures, the Boruffs assert the surgery by Dr. Milan was a negligent and careless battery against Mrs. Boruff because Mrs. Boruff did not consent to the change of surgeons. Record at 3.
In Count II, which repeated the allegations of Count I, the Boruffs additionally alleged the doctors were negligent in failing to inform Mrs. Boruff of the risks of, аnd alternatives to, the surgery.
The doctors filed a motion to dismiss under Ind. Trial Rule 12(B)(2), arguing the trial court had no jurisdiction over the case until the prerequisites of the Act had been met. At the hearing on the motion, the dоctors argued and the trial court found, that the Boruffs’ action could not go forward until a medical review panel had issued an opinion on the Boruffs’ complaint as required by
DISCUSSION AND DECISION
The essence of the Boruffs’ argument is that the allegation of battery removes their complaint from the purview of the Act, thereby obviating the medical review panel requirements. While the Boruffs are correct that not all acts performed by a physician constitute the rendition of professional services subject to the requirements of the Act, Collins v. Thakkar (1990), Ind.App., 552 N.E.2d 507, 511, trans. denied, it doеs not follow that the mere use of the word battery is sufficient to escape the requirements of the Act.
In Collins, the plaintiff alleged the defendant physician was her lover, and that he had committed a battеry against her by deliberately, wrongfully, and painfully aborting their fetus immediately after performing a pelvic exam on the plaintiff and lying to her that she was not pregnant. As happened here, the trial court dismissеd the complaint for failure to comply with the requirements of the Act. We found “the General Assembly intended to exclude from the [Act]‘s purview conduct of a provider unrelated to the promotion оf a patient‘s health or the provider‘s exercise of professional expertise, skill or judgment.” Id. at 510. Accordingly, we reversed the trial court‘s decision because the doctor‘s “behavior [could not] constitute the rendition of health care or professional services.” Id. at 511 (footnote omitted).
Conversely, the instant case presents none of the wanton and gratuitous conduct present in Collins. The Boruffs’ complaint charged that, as a result of the doctors’ negligent office procedures, Dr. Milan performed the operation without Mrs. Boruff‘s informed consent, thus inflicting a negligent battery upon Mrs. Boruff.3 This allegation concеrns precisely that type of conduct specifically included within the purview of the Act: both surgical assignments and the actual conduct of a given operation are related to the promotion of a patient‘s health and require physicians to exercise
The real question the Boruffs raise is one of informed consent, and informed consent actions are based upon a breach of the physician‘s duty to “make reasonable disclosure of material facts relevant to the patient‘s decisions about treatment.... i.e., negligence, not battery.” Collins, supra, 552 N.E.2d at 511, n. 6. In the course of rendering professional services to a patient, a physician‘s acts of negligence, including acts which constitute a breach of the duties to disclose information and obtain informed consent, are malpractice. See
We arе not unsympathetic to Mrs. Boruff‘s plight, but this opinion should not be regarded as a comment on the merits of the case. We merely hold that the Boruffs’ complaint is a malpractice complaint, which requirеs them to pursue their remedy according to the requirements of the Act.
Judgment affirmed.
ROBERTSON, J., concurs.
BARTEAU, J., concurs in part and dissents in part with opinion.
BARTEAU, Judge, concurring in part and dissenting in part.
I concur that Count II of the Boruffs’ complaint alleging that defendants were negligent for fаiling 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 thе 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 оf 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 liable 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 еd. 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 operatiоn on a patient who has refused permission for the operation to be performed by that particular surgeon. Boruff consented to have Jesseph perform the operation. She did not сonsent 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.
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, Boruff would still be entitled to dаmages if she proved the elements of her claim.
BARTEAU, JUDGE
Roger MCCONNELL and Susan McConnell, Appellants-Counterclaimants, v. Margaret SATTERFIELD, Appellee-Counterdefendant.
No. 11A01-9011-CV-456
Court of Appeals of Indiana, First District
Aug. 22, 1991