Use caution when asking for a jury instruction in a medical battery/lack of consent claim.

The Supreme Court affirmed that the jury charge given in a medical battery/lack-of-consent claim, which included "intent to cause harm" language, in its entirety, clearly and accurately set forth in the law. However, the Court suggested that, to avoid confusion in future cases, it may be beneficial to the bench and bar for the Pennsylvania Committee for Proposed Standard Jury Instructions to consider developing a particularized standard jury charge for medical battery/lack-of-consent cases that excludes reference to "intent to cause harm." The Supreme Court held that a plaintiff in a medical battery/lack-of-consent case need not prove that the defendant surgeon performed the unauthorized operation with the intent to harm the patient and that, by proving that the surgery or "touching" was intentional and without consent, a patient establishes that it was offensive, which is sufficient to render the unauthorized surgery a battery. Accordingly, a surgery performed without the patient's consent constitutes an intentional and offensive touching and satisfies the elements of battery and no intent to harm the patient need be established. Justice Todd dissented and found that the inclusion of "intent to cause harm" language in the charge was pointless and potentially confusing and that she would grant a new trial.

Case Law Alert - 4th Qtr 2012