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Even Helpful Treatment May Constitute Medical Battery

By Michael J. Mersot

In two recent cases, Sekerez v. Rush University Medical Center and Bakes v. St. Alexius Medical Center, the Illinois Appellate Court reiterated that defendants may be liable for battery, particularly in a medical context, even without any intent to cause harm. As patients have an absolute right to refuse treatment, the critical issue in medical battery cases is often consent, or lack thereof, to treatment. Consequently, care should be taken to obtain expressed consent for treatment in strict accordance with hospital policies and the wishes of the patient.

The case of Sekerez v. Rush University Medical Center concerned emergency room treatment of a terminally ill cancer patient. Upon entering the hospital, the treating physician recognized that the patient was at high risk for deep vein thrombosis and pulmonary embolism. Accordingly, the physician ordered administration of a blood thinner. After receiving the first dose of the treatment, the patient stated, “I don’t need blood thinners.” Thereafter, the medication was temporarily discontinued, but later resumed at a higher dose despite multiple refusals by the patient. The patient died of a cerebral hemorrhage related to his underlying cancer.

Although the hospital policy required patient consent for any treatment or procedure posing a risk to the patient, the physician claimed that such administration of medication was not “treatment,” but merely routine. The trial court granted a directed verdict for the defendants based on lack of an affirmative act with the intent to harm. The Appellate Court disagreed, finding that consultation among treating physicians at the hospital about the appropriate dose of the medication indicated that there was some known risk to the administration of the blood thinner. That the medication was ordered out of appropriate concern for the patient’s risk of potentially fatal blood clots could not overcome the absolute right to refuse treatment, even if such refusal could prove fatal.

The Illinois Appellate Court reiterated this principle in the case of Bakes v. St. Alexius Medical Center. In that case, hospital security allegedly battered a heavily medicated and combative patient by shutting his injured foot in a door. Faced with lack of a pattern jury instruction on battery, the trial court allowed an instruction which required the plaintiff to prove that the defendant had the intent to cause an offensive contact, rather than merely the intent to contact or merely an intent to touch, the Appellate Court recognized that generally, Illinois law is inconsistent on the issue. Nevertheless, the court discussed one area of the law in which “helpful intent” can support an intentional tort – medical battery. As in Sekerez, the Appellate Court stressed that medical battery cases rest not on whether the treatment or procedure was helpful, harmful or well-intentioned. Rather, the principle issue is whether the treatment or procedure was authorized by the patient.

These recent cases illustrate the paramount importance of consent in medical treatment scenarios. Care should be taken to ensure strict adherence to hospital policies on consent. Ordering treatment, even when done with well-founded concern for the patient, may subject the medical professional to claims of battery where the patient fails or refuses to consent.

Originally published in the Fall 2011 edition of Quinn Quarterly.