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Mayr v. Osborne

Supreme Court of Virginia

February 2, 2017


         FROM THE CIRCUIT COURT OF HENRICO COUNTY Richard S. Wallerstein, Jr., Judge



         The 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.[1] We conclude that the surgeon's actions did not constitute a battery. Accordingly, we reverse the judgment of the trial court.


         In an 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 level.

         X-rays 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 level.

         Catherine Osborne, the wife of Michael Osborne and the administrator of his estate, [2]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.

         At 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 surgery.

         Dr. 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.


         Dr. 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.[3] 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.

         I. Our precedent has not answered the question at issue in this case.

         The 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.

         In 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.

         In 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).

         Finally, 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 ...

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