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Bundrick v. Stewart5/2/2005
ut her care, whereas the cause of action for common law battery protects an individual's right to privacy and bodily integrity. Keogan v. Holy Family Hosp., 95 Wn.2d 306, 313-14, 622 P.2d 1246 (1980); Dan B. Dobbs, The Law of Torts sec. 29, at 54 (2000). '{A} surgical operation is a technical battery, regardless of its results, and is excusable only when there is express or implied consent.' Bonner v. Moran, 126 F.2d 121, 122 (D.C. Cir. 1941). Chapter 7.70 RCW preserves actions for failure to obtain consent (common law medical battery) where a health care provider fails to obtain any consent, or where the patient refuses care by a particular provider. Battery is an intentional tort; the tortfeasor must intend an offensive touching, and the plaintiff must show there was no consent to the touching. Garratt v. Dailey, 46 Wn.2d 197, 200-01, 279 P.2d 1091 (1955); Restatement (Second) of Torts sec.13, cmt. d (1965); see also Dobbs, supra, at 57 ('in the case of battery, the plaintiff's burden is to show that the defendant intended to and did cause either harm or 'offense,' a burden that ordinarily requires the plaintiff to show that the defendant's touching was not apparently consented to.'). But where consent is given, limitations upon it will be effective if communicated. See Dobbs, supra, sec. 104, at 244. Thus, where a patient has consented to a surgical procedure, but contends she limited her consent to certain participants, she must demonstrate she communicated that limitation.
The parties chiefly debate whose burden it was to obtain Bundrick's consent to be treated by Dr. Jain. Bundrick contends the trial court erred in relying on custom and practice to conclude that neither the University nor Jain had a duty to obtain Bundrick's consent to Jain's participation. She characterizes the issue as the right of a patient not to have her body used for medical education without her consent. For its part, the University contends the responsibility for obtaining consent lay solely with Stewart. Jain never met Bundrick before the operation, acted only at Stewart's direction or request, and testified that as a resident, he was not allowed to operate independently and that it was not within his discretion to refuse to participate or reject Stewart's direction. He assumed that Bundrick had consented to his assistance at surgery. But Bundrick testified at her deposition she obtained Stewart's assurance that the resident would observe but not participate. Jain had no right to participate without Bundrick's consent. As to this issue, therefore, the summary judgment record reflects a question of fact as to whether Bundrick communicated the limitation of her consent. Summary judgment was improper. We do not reverse, however, because the issue of informed consent to Jain's participation was tried to the jury, and its special verdict on that question is dispositive on the common law claim under the circumstances here. The jury had the evidence of Bundrick's broad consent to 'all medical treatment or . . . services performed or prescribed by/or at the direction of the attending physician.' Clerk's Papers at 91 (emphasis added). The jury was instructed that '{a} patient may refuse to consent to a particular doctor . . . {and a} health care provider has a duty to honor such a refusal of consent if the patient has informed the health care provider of the refusal.' Clerk's Papers at 778. The jury found that Bundrick did not refuse consent to the participation of Jain.
The University argues the battery issue is thus foreclosed by the doctrine of collateral estoppel. Bundrick objects that the instruction improperly shifted the burden of communicating a lack of consent to her, whereas it is the physician's burden to obtain conse
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