Mayr v. Osborne

Supreme Court of Virginia
293 Va. 74, 2017 WL 445915, 795 S.E.2d 731 (2017)

ELI5:

Sections

Rule of Law:

A physician is not liable for the intentional tort of battery when they perform the agreed-upon procedure but mistakenly operate on the wrong location, provided there was no intent to disregard the patient's consent; such errors must be pursued under a theory of negligence.

Facts:

Mr. Osborne sought medical treatment from Dr. Mayr to relieve back pain.
Osborne consented to a specific surgery known as a posterior cervical foraminotomy and fusion at spinal level C5-C6.
Dr. Mayr intended to operate on the agreed-upon C5-C6 level.
During the procedure, Dr. Mayr mistakenly fused level C6-C7 instead of C5-C6.
Post-operative X-rays revealed that the surgery had been performed at the wrong level.
Dr. Mayr informed Osborne of the error.
Dr. Mayr subsequently performed a corrective surgery to remove the hardware from C6-C7 and operate on the correct level.

Procedural Posture:

Catherine Osborne (Estate) filed a complaint against Dr. Mayr in the Circuit Court of Henrico County alleging negligence and battery.
The plaintiff nonsuited the negligence claim and proceeded to trial exclusively on the battery claim.
At the bench trial, Dr. Mayr moved to strike the evidence, arguing the facts did not establish battery and the plaintiff failed to provide necessary expert testimony.
The Circuit Court denied the motions to strike and entered final judgment in favor of the plaintiff.
Dr. Mayr appealed the judgment to the Supreme Court of Virginia.

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Issue:

Does a surgeon commit the intentional tort of battery when he mistakenly performs a consented-to spinal fusion on the wrong level of the spine, or must such an error be pursued under a theory of negligence?

Opinions:

Majority - Justice Stephen R. McCullough

No, a surgeon's mistaken performance of a procedure on the wrong body part does not constitute battery when there was no intent to deviate from the patient's consent. The Court reasoned that battery and negligence protect different interests: battery protects against intentional, unconsented touching, while negligence protects against the failure to exercise ordinary care. Precedent establishing 'technical battery' involved physicians who intentionally ignored conditions or performed completely different procedures than authorized. Here, the surgeon intended to perform the authorized procedure but failed to exercise due care regarding the location. Allowing this claim to proceed as battery would improperly bypass the expert testimony requirements mandated by the Medical Malpractice Act and effectively turn every medical error into an intentional tort.

Analysis:

This decision solidifies the boundary between medical malpractice (negligence) and medical battery (intentional tort) in Virginia. By ruling that a 'wrong-site' surgery is negligence rather than battery, the Court ensures that plaintiffs cannot circumvent statutory requirements for expert testimony by pleading intentional torts for accidental errors. The ruling emphasizes that the distinguishing factor is the physician's intent to disregard the patient's consent, not merely the lack of consent for the specific erroneous result. This protects the medical profession from the stigma of intentional tort liability for honest mistakes while maintaining the negligence framework for compensation.

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