Vitale v. Henchey
2000 WL 426365, 2000 Ky. LEXIS 39, 24 S.W.3d 651 (2000)
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Rule of Law:
A physician who performs surgery on a patient without the patient's valid consent as to the identity of the operating surgeon commits the intentional tort of battery, even if the procedure itself was skillfully performed or if the physician did not intend to cause harm. A claim of "no consent" to the specific surgeon is distinct from a claim of "lack of informed consent" (failure to disclose risks), which is a negligence action requiring proof of a breach of the accepted standard of medical care.
Facts:
- On October 13, 1993, Maurice Henchey received a call from Dr. Donald Varga advising him that his 95-year-old mother, Helen Hite Sallee, had been hospitalized for a blood clot in her leg.
- Henchey, acting as Sallee’s medical power of attorney, consented for Dr. Athel Sparrow to operate on Sallee for the blood clot and a subsequent gallbladder problem.
- On November 5, Dr. Sparrow informed Henchey that Sallee needed another surgical procedure, recommending Dr. Thomas Wieman and advising against Dr. Gary Vitale, whom he described as "too aggressive" and "not compassionate."
- Henchey gave his explicit consent for Dr. Thomas Wieman to perform the surgery, but unbeknownst to Henchey, Dr. Gary Vitale, Dr. Wieman's partner, performed this surgery because Dr. Wieman was out-of-town.
- On November 6, Dr. Varga called Henchey, advising that Sallee needed yet another operation urgently, and Henchey consented for Dr. Sparrow to proceed with it.
- Dr. Gary Vitale again performed this second surgery without Henchey's notification or consent.
- On November 7, Dr. Vitale informed Henchey that he had performed the last surgical procedures, prompting Henchey to ask, "who the hell are you and why are you involved?"
- Helen Hite Sallee died on November 8, after having shown signs of consciousness post-surgeries by moving her extremities and flinching her eyes in response to her name.
Procedural Posture:
- Maurice Henchey, as administrator of Helen Hite Sallee's estate, filed an action against Drs. Vitale, Varga, and Sparrow in a trial court (court of first instance), alleging unauthorized surgeries and seeking damages for conscious pain and suffering.
- At the close of Henchey's proof, the trial court directed a verdict dismissing the complaint against the physicians, finding (1) Henchey had not shown Dr. Vitale's performance of surgeries without consent violated accepted standards of medical care, and (2) Henchey had failed to show Sallee endured conscious pain and suffering.
- The Court of Appeals (intermediate appellate court) reversed the trial court's directed verdict and remanded the case for trial on the claim for battery, with the physicians being the appellees and Henchey the appellant at this stage.
- The physicians (appellants) sought review by the Kentucky Supreme Court (highest court), with Henchey as the appellee.
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Issue:
1. Does surgery performed by a physician not consented to by the patient or their medical power of attorney constitute battery, requiring no proof of a violation of the accepted standard of medical care? 2. Was there sufficient evidence to create a jury issue as to whether a patient, who showed signs of consciousness by moving extremities and flinching eyes in response to her name after unauthorized surgeries, endured conscious pain and suffering?
Opinions:
Majority - Keller, Justice
Yes, surgery performed by a physician not consented to by the patient or their medical power of attorney constitutes battery, and proof of a violation of the accepted standard of medical care is not required. Yes, the evidence was sufficient to create a jury issue as to whether Helen Hite Sallee endured conscious pain and suffering after the unauthorized surgeries. The Court held that a claim based on a complete lack of consent for a specific surgeon to operate is an intentional tort of battery, distinct from a negligence claim for lack of informed consent (failure to disclose risks and hazards), as governed by Holton v. Pfingst and the Kentucky Informed Consent Statute. Battery does not require proof of a breach of the accepted standard of medical care. The Court reiterated Justice Cardozo's principle from Schloendorff v. Society of New York Hospital that every adult of sound mind has the right to determine what is done to their body, and surgery without consent is an assault, liable in damages, absent an emergency. The intent required for battery is merely the intent to make contact with the person, not intent to cause harm. The operations, even if beneficial, result in "harmful contact" in the legal sense if performed without consent. The consent given by Henchey was limited to specific surgeons, and Dr. Vitale's performance exceeded that scope, making him liable for battery. Regarding damages, the Court found sufficient evidence of conscious pain and suffering (movement of extremities, flinching eyes, pain treatment/observation) to present a jury question, noting that damages for pain and suffering are permissible even if the patient was only "partly conscious" or had "intervals of consciousness." The physicians' argument that Henchey needed to prove greater suffering than if the authorized surgeons performed the operation was rejected, as an injured party is entitled to recovery for any damages resulting from the battery.
Dissenting - Cooper, Justice
No, the ancient tort of battery should not apply when a patient consents to the type of surgery but not the specific surgeon, and the patient does not object to the specific surgeon. Claims of tortious conduct in medical practice should be addressed by negligence principles relative to malpractice and informed consent. Justice Cooper characterized the lawsuit as a "money hunt" because Henchey consented to the procedure and did not allege negligent performance, but only objected to the surgeon's identity. He noted that Henchey did not know either Dr. Vitale or Dr. Wieman, and only accepted Wieman based on Dr. Sparrow's referral and negative comments about Vitale. Crucially, Henchey never specifically objected to Dr. Vitale performing the surgery. Justice Cooper distinguished the present case from precedents like Tabor v. Scobee and Schloendorff, arguing those cases involved lack of consent to the type of surgery, not merely a change in the operating physician. He contended that battery should be reserved for nonconsensual physical contact that is "offensive or harmful," and that issues concerning a change of surgeon should fall under negligence or informed consent principles. Justice Johnstone joined this dissenting opinion.
Analysis:
This case significantly clarifies the distinction between medical battery and medical negligence, emphasizing patient autonomy over their bodies. It establishes that operating with no consent as to the specific surgeon, even if the procedure is authorized and competently performed, constitutes battery and does not require proof of medical malpractice. This ruling strengthens patients' rights to choose their medical providers and provides a clear cause of action outside the complex standards of medical negligence, potentially lowering the bar for plaintiffs in such specific scenarios. Future cases will likely rely on this distinction to determine the appropriate legal framework for claims involving unauthorized medical personnel.
