MATTHEW T. MAYR, ET AL.
CATHERINE OSBORNE, ADMINISTRATOR OF THE ESTATE OF MICHAEL J. OSBORNE
THE CIRCUIT COURT OF HENRICO COUNTY Richard S. Wallerstein,
STEPHEN R. McCULLOUGH JUSTICE
surgeon in this case mistakenly fused the wrong level on Mr.
Osborne's spine. Instead of operating on level C5-C6, the
surgeon operated on level C6-C7. The issue we must resolve is
whether a plaintiff in such a situation can proceed on a
theory of battery or whether the law confines a plaintiff to
recovery under a negligence theory. We conclude that the surgeon's actions
did not constitute a battery. Accordingly, we reverse the
judgment of the trial court.
effort to relieve back pain, Dr. Matthew T. Mayr performed a
posterior cervical foraminotomy and fusion on Michael J.
Osborne. The surgery targeted the C5-C6 level of Mr.
Osborne's spine. The procedure called for the
stabilization of level C5-6 by using bars connected to the
spine with screws, as well as the insertion of a bone graft.
Dr. Mayr performed the operation, and his operative report
shows that he believed that he had operated on the C5-C6
taken after the surgery revealed that Dr. Mayr had fused the
wrong level. He had fused level C6-C7 instead of C5-C6. Dr.
Mayr informed his patient of that fact. Dr. Mayr later
performed a corrective surgery, removing the screws and bars
at level C6-C7 and performing the surgery at the correct
Osborne, the wife of Michael Osborne and the administrator of
his estate, filed a complaint alleging
Dr. Mayr was negligent and that he committed a battery. She
later nonsuited her claim for negligence and proceeded to
trial exclusively on her battery claim. Her theory at trial
was that the surgery on the wrong level "went beyond the
scope of the consent that he was given" and, therefore,
constituted a battery.
trial, Dr. Mayr testified that when he spoke with Mr.
Osborne, he informed him that, among other risks of this
surgery, there is a risk that the "hardware can be
misplaced and that that may have to be revised down the
road." Mrs. Osborne denied that she or her husband had
received such information from Dr. Mayr. Dr. Mayr also
presented expert testimony that operating at the wrong level
is "a recognized complication" of this type of
Mayr twice moved to strike, first at the close of the
plaintiff's case, and then again at the close of all the
evidence, arguing both times that while the facts revealed
possible negligence, they did not establish a battery. He
also argued that the plaintiff had failed, as required, to
produce an expert to testify concerning the standard of care.
At the conclusion of the bench trial, the court indicated it
would take the motion to strike under advisement. The court
received a memorandum in support of the motion to strike and
made it part of the record. After a short recess, the court
stated from the bench that it was entering judgment for the
plaintiff and later entered a final order to that effect.
Mayr argues that to permit a claim for battery in
circumstances like this one would impermissibly extend the
scope of what constitutes a battery. He notes that he did not
intentionally operate on the wrong level of his patient's
spine, and contends that our cases recognizing a tort of
battery in the medical setting are
distinguishable. For her part, the
plaintiff argues that consent was given for surgery at the
C5-C6 level, there was no consent for a surgery on the C6-C7
level, and, because the surgery exceeded the scope of
consent, it constituted a battery.
precedent has not answered the question at issue in this
plaintiff argues that this case is controlled by our prior
decisions. We disagree. Although we have recognized that, in
some circumstances, a physician can be liable for a battery,
which we have also called a "technical" battery,
Pugsley v. Privette, 220 Va. 892, 899, 263 S.E.2d
69, 74 (1980), our prior cases did not call upon this Court
to draw the boundary that separates a technical battery from
an action for negligence.
Pugsley, the dispositive issue was whether the
plaintiff had revoked the consent she initially gave, by
demanding on the morning of the surgery that the operation
proceed only in the presence of a particular physician. 220
Va. at 900, 263 S.E.2d at 75. That particular physician was
not present during the surgery. Id. at 900, 263
S.E.2d at 76. We explained that "[a]n unauthorized
operation is a wrongful and unlawful act for which the
surgeon will be liable in damages." Id. at 899,
263 S.E.2d 74. Furthermore, "consent to an operation may
. . . be withdrawn, if timely and unequivocally done, thereby
subjecting the surgeon to liability for battery if the
operation is continued." Id. at 899-900, 263
S.E.2d at 74.
Washburn v. Klara, 263 Va. 586, 592, 561 S.E.2d 682,
686 (2002), although the plaintiff consented to a diskectomy
at the C6-C7 level, the evidence indicated that the physician
additionally operated at the C7-T1 level. We
concluded that the case presented a factual issue for the
jury about whether the surgeon "intentionally
performed a cervical diskectomy at two levels of [the
patient's] spine, thus exceeding the scope of her
consent." Id. (emphasis added).
in Woodbury v. Courtney, 239 Va. 651, 652-653, 391
S.E.2d 293, 294 (1990), the patient consented to an
exploratory biopsy of her breast to determine whether a
suspicious mass detected in her left breast was malignant.
The physician instead performed a partial mastectomy,
removing a quarter of her left breast. Id. at 653,
391 S.E.2d at 294. The patient sued, arguing that her consent
was limited to the removal of one centimeter of tissue and
that she had not consented to the procedure actually
performed. Id. We held that the plaintiff's
allegations created a factual issue for the jury ...