When Ms. G was notified of the suit, she was shocked. She immediately placed a call to Dr. K.

“I can’t believe it,” said the physician. “The BP cuff was above the elbow, and the alleged damage was below. How could she prove that the cuff was responsible?”

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Both clinicians consulted defense attorneys and both were given the same advice — the plaintiff’s case was weak, and they should go to trial if necessary.

The case progressed through depositions and discovery. At trial, Mrs. M testified that when the automatic BP cuff inflated, she suffered terrible pain and began sweating and trembling. She testified that she told the clinicians in no uncertain terms to “take it off,” yet they allowed the cuff to inflate two more times before removing it.

A physician brought in by the plaintiff’s attorney testified as to the severity of Mrs. M’s arm injury but stopped short of saying that the BP cuff had caused it.

The defense introduced its own physician, who testified that a BP cuff could not possibly be the source of the patient’s injury.

Before the jurors began deliberating, the plaintiff’s attorney asked the judge to provide instructions as to what would be necessary to find the defendants liable for the tort of battery. The judge refused, and the jurors deliberated as to whether the clinicians had been negligent in their treatment of Mrs. M. Ms. G and Dr. K were found not liable.

The clinicians’ relief was short-lived. Mrs. M appealed the decision to the state court. Her attorney claimed that the trial court had erred in not giving the jurors the opportunity to decide whether the clinicians had committed battery by not removing the BP cuff when Mrs. M complained. The judges on the appeals court agreed with the trial court and dismissed the case. Mrs. M was still not deterred and appealed the case to the State Supreme Court.

The State Supreme Court came up with a two-pronged test to determine whether practitioners can be found liable for battery. First, the patient must use language or act in a way that makes it clear that consent for the procedure, treatment or examination has been revoked.

Second, it must be medically feasible for the practitioner to stop the treatment or examination without it being detrimental or dangerous to the patient. Using these criteria, the court determined that Mrs. M had clearly revoked her consent to part of the procedure and that the clinicians were feasibly able to stop. The court ruled that Ms. G and Dr. K could be sued for battery, and the case was sent back for a new trial.

Legal background

With regard to charges of battery — defined as unlawful touching or touching once consent has been withdrawn — it does not matter whether Mrs. M suffered injuries. Injuries are not relevant, as they are in negligence.

While this case has yet to be retried, the clinicians may be found liable under this scenario. The case will probably hinge on how swiftly Ms. G and Dr. K responded to Mrs. M’s complaints about the BP cuff and whether they removed it as soon as it became clear than Mrs. M was no longer consenting to its use.

Protecting yourself

There may have been nothing that the clinicians could have done to prevent this lawsuit, but acting faster might have helped. Ms. G could have removed the BP cuff after the first or second inflation once Mrs. M complained. Waiting until after the third inflation provided more ammunition for the claim that the patient’s revocation of consent had been ignored.

Battery can apply to examinations as well as surgery. It is essential to keep an open dialogue with the patient about what is being done. Ask the patient frequently if he or she is comfortable with what is going on.

Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.