Thursday, December 14, 2017

B. Common Law Battery

      The theoretical underpinnings of the informed consent doctrine emerged from the law of battery, which safeguards a patient's physical integrity. The law of battery protects patients from unwanted or harmful physical contacts. The patient has to demonstrate only that she did not consent to the touching that occurred, which includes the provision of medical treatment by an unwanted medical provider. Hence, to bring an action in battery, a patient must simply prove that any of the following occurred: an unconsented-to provider performed the desired procedure, an unconsented-to treatment or touching occurred, the healthcare provider performed a completely different procedure from that for which consent was given, the provider failed to explain the nature or character of a particular procedure that had been performed, or the provider performed a procedure on the wrong area of the body. Proof of physical injury is not necessary under the battery doctrine. Rather, the focus is on the patient's right to be free from unconsented-to touching.

      Because of the very patient-friendly nature of the battery doctrine, courts in some jurisdictions sought to provide more freedom and protection to medical professionals while promoting patient self-determination and autonomy in medical decisionmaking. They did so, beginning in the 1970s, by limiting the scope of the battery doctrine while establishing the modern doctrine of informed consent as a more balanced alternative. Today, disclosure, respect for patients' autonomous decisionmaking, and the norms established by the battery doctrine are understood as fundamental medical ethics requirements. These principles now undergird federal regulations on human experimentation and guide virtually all healthcare interactions, including the right to refuse unwanted medical treatment and the refusal of treatment by an unwanted physician.

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