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Black v. Comer7/15/2005
led as battery claims, and lack of informed consent cases, which should be pled as negligence claims); Cobbs v. Grant, 8 Cal. 3d 229, 104 Cal. Rptr. 505, 502 P.2d 1, 8 (1972) (same). Many courts refer to claims for lack of consent as 'medical battery' claims. See, e.g., Haile v. Sutherland, 598 N.W.2d 424, 428 (Minn. App. 1999)(noting that 'medical battery cases' are limited to substantial and obvious deviations from the anticipated procedure or treatment); Lounsbury v. Capel, 836 P.2d 188, 195 (Utah App. 1992) ('A typical medical battery case is that of a patient who consents to a particular procedure, but who receives treatment different from that which was authorized')."
(Dr. Black's brief, p. 21 n. 3.)
Responding, likewise by way of a footnote in his appellate brief, Comer advises that he will use the term "battery" to encompass both his lack-of-consent and battery claims; he acknowledges that he originally treated them as separate claims, but he now agrees with Dr. Black, referencing the above-quoted footnote from Dr. Black's brief, that a claim that a physician treated a patient without consent is a claim alleging battery.
Because of our determination and disposition of the "consent" issue, we adopt the parties' approach; we do not attempt to distinguish between a claim of lack of consent and a claim of battery, "medical" or otherwise. In so collapsing the lack-of-consent claim and the battery claim for purposes of our analysis of the pivotal feature of consent, we are mindful that the further presentation of the claim or claims will be "governed by the Alabama Medical Act of Alabama 1987 [§ 6-5-540 et seq., Ala. Code 1975]." Cain v. Howorth, 877 So. 2d 566, 581 (Ala. 2003). The definition of "standard of care" set forth by § 6-5-542(2), Ala. Code 1975, "governs all actions against the health-care providers specified in the [Alabama Medical Liability Act of 1987]." Collins v. Ashurst, 821 So. 2d 173, 176 (Ala. 2001).
We reverse the summary judgment and the judgment entered following the trial on the damages and remand the case for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
Nabers, C.J., and See, Stuart, and Bolin, JJ., concur.
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