Legal background


One of the essential components of a medical malpractice case is an injury, caused by a medical professional who owed a duty of care to the patient. However, battery does not have the same requirement. 


Battery is defined as the unlawful touching of another person—in other words, touching or doing something to someone without their consent. The issue in this case was whether Mr. B was capable of giving his consent at that time. In general, a patient must be informed about a procedure and then must consent to it. However, exceptions exist in the case of an emergency or when someone is unable to consent. 



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In this case, the defense argued that Mr. B had a head injury, was distressed, and had no family with him to help explain the situation. They argued successfully that a rectal exam was necessary and urgent and that the clinicians believed that the patient was not mentally able to consent. 


Protecting yourself


Informed consent is extremely important, but in order for it to be “informed,” the patient must be able to understand the issues and potential consequences. However, in emergencies or in cases in which a patient is unable to consent for other reasons (e.g., head injuries, mental issues), a decision must be made on a case-by-case basis. 


A patient always has the right to refuse, but sometimes, refusal is based more on fear or embarrassment than on understanding medical necessity. Make sure to adequately explain to patients the necessity of a procedure, test, or treatment and the potential consequences of not going through with it.

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