Medical Malpractice as a Battery

Mayr v. Osborne, 795 S.E.2d 731 (Va. 2017) The surgeon in this case mistakenly fused the wrong level on the patient’s spine. Instead of operating on level C5–C6, the surgeon operated on level C6–C7. The procedure involved bars that the surgeon connected to the spine with screws and the insertion of a bone graft. The plaintiff abandoned the negligence claim she originally made (presumably because she could not establish that the surgeon was negligent) and proceeded on the battery theory. This theory failed, too. The Virginia Supreme Court explained that “the tort of battery and the tort of negligence both provide avenues of recovery to compensate persons who have been wronged by the actions of a health care provider. The interests protected by the tort of battery and the tort of negligence, however, are different. Battery protects two personal interests: “first, the interest in the physical integrity of the body, that it be free from harmful…

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