Sometimes Medical Battery Claims Require a Professional Report, Too
The Illinois statute requiring a healthcare professional’s report as a pleading requirement applies to all cases involving medical or healing art malpractice. The courts have not, however, consistently applied the requirement to claims of medical battery. The recent appellate case of Holzrichter v. Yorath clarified the inconsistency, at least with regard to certain types of medical battery cases. In the case, the court affirmed a grant of summary judgment on a medical battery claim submitted without a healthcare professional’s report.
The plaintiff in the case sought surgical treatment of his toe from the defendant providers. Apparently, the plaintiff suffered a rather severe toe stub which ultimately required the bone to be severed and screwed back together. The surgeon explained that, in addition to cutting the bone, the procedure would entail severing the tendon. The plaintiff initially told the surgeon that that he did not want his tendon cut. Prior to the surgery, he signed a consent form for the procedure which stated that he had all his questions addressed. The tendon was cut as a necessary part of the surgical procedure. The plaintiff sued for medical battery, along with a host of other allegations.
The defense moved for summary judgment for failure to submit a healthcare professional’s report in accordance with Illinois statute. The trial and appellate courts agreed, finding that medical battery cases require a report under certain circumstances.
A medical battery plaintiff must prove: (1) no consent to the medical procedure performed; (2) the procedure was contrary to the injured party’s will; or (3) substantial variance of the procedure from the consent granted. As the essence of medical battery is a lack of consent, some courts have held that a report is not required for such claims because, unlike in medical negligence cases, laymen are qualified to assess whether a battery has taken place.
In this case, however, the critical question was whether consent to the procedure necessarily indicated consent to cut the tendon. This determination requires an understanding of the medical procedure and applicable standards. The plaintiff claimed that cutting the tendon was not necessary, but rather a “whimsical” experiment. The appellate court determined that a layman would not be able to assess the requirements of the procedure, and thus a healthcare professional’s report was required.
Holzrichter clarifies that whether a medical battery case requires expert support revolves around the medical basis for the claim. This is to be assessed on a case-by-case basis. If assessment of the claim requires specialized knowledge, then a report and subsequent expert testimony are required. Where the case is a plain lack of consent, the plaintiff may proceed without such evidence.
Originally published in the Spring 2013 edition of Quinn Quarterly.