Informed Consent: A Medical Board Analysis
Occasionally, boards must investigate a complaint of a physician's failure to obtain informed consent. This article examines the development of informed consent, and the manner in which the courts currently handle informed consent cases. Suggestions are offered here to help boards handle informed consent investigations.
Informed consent, in the practice of medicine, has a long history that stems from the right to bodily integrity. Understanding informed consent begins with an analysis of consent in general and what it means for consent to be informed.
General Consent
In general, consent is the permission to be touched by another.1 Before a physician may touch a patient in any manner, the physician must have the patient's general consent. Consent can be either explicit or implicit. If a physician asks, “May I touch you?” and the patient replies, “Yes,” then the physician has obtained explicit general consent for the touching. Much consent, however, is implied. If a physician asks a patient to raise his or her shirt to listen to the heart and the patient complies, then the physician has obtained implied general consent for the touching that follows. In the medical setting, most minor touchings are general and implied.2
Why is general consent important? Any non-consensual touching that results in compensable damages to the patient can form the foundation for the intentional tort of battery. A battery is any intentional, unlawful and harmful contact by one person with another person. The elements of a civil battery include:
Defendant intentionally committed on act that resulted in a harmful or offensive contact with the plaintiff's person.
Plaintiff did not consent to the contact.
The harmful or offensive contact caused injury, damage, loss or harm to the plaintiff.3
Even without harm, a patient may be entitled to nominal damages,4 which opens up the possibility of punitive damages.5
General consent also includes limited or conditional consent. Patients can limit or condition their consent to a particular treatment or medication.6 Besides setting conditions on treatments, patients can set conditions who will perform the procedures.7 Ashcraft v. King established that “[t]he rule of conditional consent has been applied in battery actions against physicians and surgeons.”8 Thus, “if the physician exceeds the patient's limitations or conditions, the general consent does not protect the physician from liability for the excessive act.”9
General consent differs from informed consent. General consent is the patient's basic permission for the physician to touch him or her in a specific manner. Obtaining general consent alone is not sufficient to avoid a battery claim. The physician must obtain informed consent to secure the validity of the consent. Perna v. Pirozzi concluded that “[i]f the patient succeeds in proving that the surgeon did not comply with the applicable standard for disclosure, the consent is vitiated.”10 If the consent is vitiated, then the physician may be liable for a battery.11 The battery theory of liability is not confined to cases of a deviated operation but extends to cover the simple failure to advise adequately a patient of the potential ramifications of a certain course of treatment.
General Consent Forms as Adequate Disclosure
Courts have found that general consent forms do not adequately inform patients about the risks and benefits of the anticipated procedures.12 Conditions-of-admission forms, however, are not merely informational, but rather provide general consent to treatment, and therefore encompass administration of drugs and treatments as necessary for proper care.13 In general, as established in Siegel v. Mt. Sinai Hospital, “a written consent form will be considered as evidence that the patient's informed consent was obtained, but generally it is not conclusive.”14
Informed Consent
Some courts limit the battery theory to those circumstances when a doctor performs a procedure to which the patient has not consented. Instead, when the patient consents to certain treatment and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears; rather, in obtaining consent the doctor may have failed to meet his due care duty to disclose pertinent information.15
To understand informed consent and the way it differs from general consent, it is important to remember that informed consent is a legal and ethical concept, not a medical concept. As noted in Keogan v. Holy Family Hospital:
The phrase “informed consent” refers generally to legal theories of recovery in medical tort cases that depend, not on the appropriateness or inappropriateness of the doctor's diagnosis and treatment of the patient's condition, but on the patient's right to know the condition of his body and to make a decision regarding his medical care. In his fiduciary relationship with the patient, the physician has a duty to disclose relevant facts about the patient's condition and care. If the physician has not given the patient all the information necessary for the patient to make a knowledgeable decision regarding his medical care, the patient's “consent” to the course of action taken by the physician is not “informed.” The doctor's breach of his fiduciary duty to the patient may make him liable if damages result because the patient, if apprised of all of the material facts, would not have agreed to the physician's course of action.16
The AMA Code of Medical Ethics provides that “the patient has the right to receive information from physicians and to discuss the benefits, risks and costs of appropriate treatment options.”17 Alswanger v. Mego noted that informed consent involves four specific factors:
The nature of the procedure.
The risks and hazards of the procedure.
The alternatives to the procedure [including no treatment].
The anticipated benefits of the procedure.18
In general, a physician must obtain a patient's informed consent prior to performing a medical procedure upon the patient. As noted above, a physician's performance of a medical procedure without the patient's informed consent may constitute a battery. Failure to obtain informed consent may trigger a negligence claim when the treatment or procedure was authorized but the consent was uninformed. For a negligent failure of informed consent claim, the patient must prove the same elements as a malpractice case, as noted in Willis v. Bender:
The physician owed a duty to the plaintiff.
The physician breached that duty.
The breach proximately caused injury to the plaintiff.19
The physician has a duty to disclose all known risks and benefits of the recommended treatment, alternative treatments and no treatment.20 Additionally, according to Keogan, “[b]ecause the doctrine of informed consent is based on the patient's right to self-determination, particularly with regard to the treatment of medical abnormalities of his condition, ‘(t)he physician's duty of disclosure arises ... whenever the doctor becomes aware of an abnormality which may indicate risk or danger.’”21 As noted in Duffy v. Flag, a physician must disclose who will perform the procedure and “details of his or her professional experience even if this experience [does] not increase the risk to the patient.”22 Physicians, however, need not discuss the risks inherent in common procedures that very rarely result in serious ill effects.23 Thus, not only must the physician disclose the general information, the physician also must disclose sufficient information to obtain informed consent.24
Disclosure and Informed Consent
There are two embedded concepts in informed consent. The first relates to the word “disclosure.” The physician must disclose relevant facts regarding treatment. The second relates to the word “informed.” The patient must adequately understand the disclosed facts to make an informed decision. It is possible, and is not unusual, for a physician to disclose facts to a patient regarding a procedure but fail to inform the patient fully. This disconnect can happen for several reasons. The patient might be medically illiterate and may not fully comprehend what the physician is explaining. The physician may disclose only those facts that the physician believes are relevant to the patient. The physician and patient may misunderstand each other.
Standards to Determine Sufficiency of Disclosed Information
Jurisdictions differ as to the standard the court applies when judging the adequacy of disclosures for informed consent purposes. A majority of courts have ruled that the appropriate standard is that of the “reasonably prudent medical practitioner acting under the same or similar circumstances.”25 Others use the more recently developed standard of the reasonably prudent patient faced with making the decision to consent to or forego treatment.26 Also used is the less well-defined standard of the subjective patient need.
Reasonably Prudent Physician Standard
A majority of the courts have adopted the reasonably prudent physician standard.27 Prior to 1972, most jurisdictions recognizing the informed consent doctrine used the reasonably prudent physician standard.28 The prudent physician standard holds that “[a] physician is required to disclose only such risks that a reasonable practitioner of like training would have disclosed in the same or similar circumstances.”29 This standard looks to the community of similar physicians to determine what information the physicians disclose to patients regarding a particular procedure.
Reasonably Prudent Patient Standard
In 1972, two cases adopted the reasonably prudent patient standard in measuring the physician's duty to disclose.30 This is because, as established in Keogan, “the patient's rights to self-determination cannot be solely dependent on expert medical testimony.”31 Under this standard, “a physician must disclose all information which a reasonable person in the patient's position would consider material to her decision as to whether to allow the physician to perform the contemplated treatment or procedure upon her.”32 Sard v. Hardy established that “[u]nlike the subjective test, which ‘considers what the plaintiff would have done if the risks had been properly disclosed,’ the objective test ‘focuses on what a reasonable person in the plaintiff's position would have done if the risks had been adequately disclosed.’”33 Causation must also be shown: i.e., that the reasonably prudent person in the patient's position would have decided differently if adequately informed.
Subjective Patient Need Standard
Cross ruled that “[w]hether a particular medical risk should be disclosed by the physician to the patient under the patient need standard ordinarily depends upon the existence and materiality of that risk with respect to the patient's decision relating to medical treatment.”34 Under this analysis, the court determines whether the patient, if the physician provided the specific disclosure of information, would have chosen to go forward with a medical procedure. This arises in two circumstances. First, the court finds that the patient requested certain information, but the physician denied the information or misinformed the patient.35 As noted in Moore v. Regents of the University of California, “[p]hysician-specific information such as experience is relevant to the informed consent issue and physicians have a duty to voluntarily disclose such information prior to obtaining a patient's consent.”36 Likewise, the subjective duty arises when the physician becomes aware of a specific abnormality that may indicate risks not present in the average patient.37
The second instance is when a patient specifically limits or conditions the treatment to a specific medication or provider.38 Patients may limit their consent to certain conditions that, if not adhered to, may lead to liability for a battery. In such a case, general consent does not necessarily defeat a battery claim.39 As noted in Duncan v. Scottsdale Medical Imaging, “[w]hen a patient gives limited or conditional consent, a health care provider has committed a battery if the evidence shows the provider acted with willful disregard of the consent given.”40
Experts or No Experts
Just as there is a split in the courts as to which standard to apply, there is also a split in the courts as to whether expert testimony is needed. Smith v. Weaver concluded that “expert testimony is required to establish what a reasonable practitioner would disclose in the same or similar circumstances.”41 In Willis, “[t]he expert is required to state the standard of care with specificity sufficient to enable the court to determine if [the doctor] properly disclosed the risks and alternatives in conformance with the standard.”42 Canterbury v. Spence held that “[a] causal connection exists when, but only when, disclosure of significant risks incidental to treatment would have resulted in a decision against it.”43
Authors David Louisell and Harold Williams have written that “[u]nlike the [reasonably prudent physician standard], expert testimony is not required under the prudent patient standard.”44 Thus, those following the reasonably prudent physician standard rule require an expert to establish causation, while those using the reasonably prudent patient standard or subjective standard do not necessarily require an expert.
Misrepresentation
Besides battery and negligence, a third theory of liability is based upon the contract concept of misrepresentation. In this manner, the court looks to determine if the physician breached his or her fiduciary duty to disclose completely and accurately all relevant information. Some courts recognize that the relationship between a patient and a physician is contractual in nature and that the physician owes a duty of full disclosure to the patient. Even when a battery claim and a malpractice claim fails, the patient can recover under the theory of misrepresentation.45 The elements of a negligent misrepresentation claim are:
False information supplied in the course of one's business for the guidance of others in their business.
Failure to exercise reasonable care in obtaining or relating the information.
Pecuniary loss resulting from justifiable reliance thereon.46
The Restatement (Second) of Torts recognizes a claim for negligent misrepresentation resulting in physical harm. Section 311 provides “[o]ne who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results to the other [person]....”47 Comment (b) states:
The rule stated in this Section finds particular application where it is a part of the actor's business or profession to give information upon which the safety of the recipient or a third person depends. Thus, it is as much a part of the professional duty of a physician to give correct information as to the character of the disease from which his patient is suffering, where such knowledge is necessary to the safety of the patient or others, as it is to make a correct diagnosis or to prescribe the appropriate medicine...
Even here, if the physician obtains the patient's consent through misrepresentation, the patient may have a claim for battery.48
Conclusion
As shown, the courts are divided on how to proceed with informed consent cases. The courts have identified three theories of liability — battery, negligence and misrepresentation. The courts have equivocated on whether information must be specific or general, and are at odds on whether a patient needs expert testimony to establish a deviation from the standard. Finally, the courts have used three different standards — prudent physician, prudent patient and subjective patient — to determine if the physician adequately informed the patient.
How can medical boards proceed on informal consent cases in the face of this environment? As the courts are divided upon the correct standard, a reasonable approach may be to use all three standards rather than just one. The board can first ask, “What would a reasonably prudent patient want to know?” This question can be followed with, “What is the community standard for disclosing sufficient information to meet the disclosure requirements for the reasonably prudent patient?” Finally, the board can ask, “Did the disclosed information take into account the specific subjective needs and concerns of the patient and did the patient place any restriction or conditions on the care provided by the physician?” In this way, the medical board can ensure that it has gathered all relevant information in determining whether a physician provided adequate information in obtaining the patient's consent.
When investigating a lack-of-informed-consent case, a medical board can first look to see if the state has adopted statutory provisions; then it should look at the essential components, including the who, what, where, when, why and how of the case.
What elements should be in place? The physician should:
Disclose all people who will be involved in the procedure including other surgeons, anesthesiologist, residents, etc.
Disclose which procedure he or she will perform and its risks and benefits, alternative procedures and their risks and benefits, and the risks and benefits of no treatment.
Disclose where the procedure will take place (office-based surgery versus hospital, for example) and the risks and benefits of the options.
Disclose when the procedures need to take place (expedited or elective, for example).
Disclose why he or she is recommending one procedure above others.
Disclose how he or she will perform the procedure.
After determining the presence or absence of these elements, the medical board then could determine if the patient gave general consent for the procedure and involved health care providers. After this, the board could determine if the physician disclosed sufficient information to allow the patient to give informed consent. Finally, the board could determine if the patient placed any specific limitations or conditions on the care and whether the physician complied with the patient's limitations and conditions. With all these steps complete, the board can determine if the physician breached a duty, and if so, whether any discipline is necessary.
As informed consent is a nebulous concept, and because the courts have rendered divided approaches to it, medical boards should exercise great care as they undertake their investigations.
Footnotes
↵1. Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129, 105 N.E. 92, 93 (N.Y. 1914), overruled on other grounds (Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages.).
↵2. Bonner v. Moran, 126 F.2d 121, 123, 75 U.S.App.D.C. 156, 158, (App.D.C. 1941) (We think there can be no doubt that a surgical operation is a technical battery, regardless of its results, and is excusable only when there is express or implied consent by the patient; or, stated somewhat differently, the surgeon is liable in damages if the operation is unauthorized.); see also Schloendorff at 129, 93; Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3 (N.Y. 1957); Pratt v. Davis, 224 Ill. 300, 79 N.E. 562 (Ill. 1906).
↵3. Fluharty v. Fluharty, 59 Cal.App.4th 484, 497, 69 Cal. Rptr.2d 244, 251, (Cal.App. 3 Dist. 1997) (citations omitted).
↵4. Perna v. Pirozzi, 92 N.J. 446, 460, 457 A.2d 431, 438, 39 A.L.R.4th 1018, (N.J. 1983).
↵5. Perna at 461, 439.
↵6. Piedra v. Dugan, 123 Cal.App.4th 1483, 1497, 21 Cal. Rptr.3d 36, 49, (Cal.App. 4 Dist. 2004) (Even if a patient consents to treatment, if the patient places conditions on that consent, the physician may be liable for battery if he or she exceeds those conditions.), see also, Ashcraft v. King, 228 Cal.App.3d 604, 610, 278 Cal.Rptr. 900, 902, (Cal. App. 2 Dist., 1991).
↵7. AMA Code of Ethics 8.087 “Patients should be informed of the identity and training status of individuals involved in their care and all health care professionals share the responsibility for properly identifying themselves.” “Patients are free to choose from whom they receive treatment.” AMA Code of Ethics 8.088 “Residents' and fellows' interactions with patients must be based upon honesty.” “If a patient refuses care from a resident or fellow, the attending physician should be notified.”
↵8. Ashcraft v. King, 228 Cal.App.3d 604, 610, 278 Cal.Rptr. 900, 902, (Cal.App. 2 Dist., 1991); see also, Grieves v. Superior Court, 157 Cal.App.3d 159, 165, 203 Cal.Rptr. 556 (Cal.App. 4 Dist. 1984) (consent to tubal ligation only if baby born without deformities), Keister v. O'Neil, 59 Cal. App.2d 434–435, 138 P.2d 723 (Cal.App. 1943) (operation consented to but “absolutely did not want ... a spinal anesthetic”), Chambers v. Nottebaum, 96 So.2d 716, 717–718, (Fla.App.1957) (operation consented to but patient “would not permit a spinal anesthetic”), Moscicki v. Shor, 107 Pa.Super. 192, 163 A. 341, 341–342 (Pa.Super. 1932) (patient consented to extraction of some but not all defective teeth); Rolater v. Strain, 39 Okla. 572, 137 P. 96, 97–98 (Okla. 1913) (patient consented to operation upon “express condition that no bone should be removed from her foot”).
↵9. Ashcraft at 610, 902, citing Rest.2d Torts, § 89A (3), (4), comment h, p. 369.
↵10. Perna at 458, 438.
↵11. Trogun v. Fruchtman, 58 Wis.2d 569, 595, 207 N.W.2d 297, 311 (Wis. 1973) (A physician who violates his duty to adequately apprise his patients of the dangers of a proposed treatment is liable for an assault and battery).
↵12. Pegram v Sisco, 406 FSupp 776 (W.D. Ark 1976) affd 547 F2d 1172 (C.A.8th Ark. 1976), LaCaze v. Collier, 434 So2d 1039 (La 1983) (consent form which failed to identify treatment to which patient was purportedly consenting not effective in establishing consent), Roberson v. Menorah Medical Center, 588 SW2d 134 (Mo. App. W.D. 1979), Gray v. Grunnagle, 423 Pa 144, 223 A2d 663 (Pa. 1966), Adams v. Richland Clinic Inc, 37 Wash App 650, 681 P2d 1305 (Was. App. 1984), Cross v Trapp, 294 SE2d 446 (W Va 1982), but see Blincoe v. Luessenhop, 669 FSupp 513 (D.D.C. 1987).
↵13. See, e.g., Piedra v. Dugan, 123 Cal. App. 4th 1483, 21 Cal. Rptr. 3d 36 (4th Dist. 2004).
↵14. Siegel v. Mt. Sinai Hospital, 62 Ohio App2d 12, 16 Ohio Op3d 54, 403 NE2d 202 (1978).
↵15. Cain v. Howorth, 877 So.2d 566, 580 (Ala. 2003), quoting Daum v. SpineCare Med. Group, Inc., 52 Cal.App.4th 1285, 1313, 61 Cal.Rptr.2d 260, 276 (Cal.App. 1997).
↵16. Keogan v. Holy Family Hospital, 95 Wash.2d 306, 313, 622 P.2d 1246, 1252 (Wash. 1980).
↵17. AMA Code of Ethics section 10.01, 2010–2011.
↵18. Alswanger v. Smego, 257 Conn. 58, 67–68, 776 A.2d 444, 449 (Conn. 2001).
↵19. Willis v. Bender, 596 F.3d 1244, 1254 (10th Cir.Wyo. 2010).
↵20. Cross v. Trapp, 294 SE2d 446, 455 (W. Va. 1982).
↵21. Keogan at 314, 1252; see also, Gates v. Jensen, 92 Wash.2d 246, 595 P.2d 919 (Wash. 1979).
↵22. Duffy v. Flag, 279 Conn. 682, 687, 905 A.2d 15, 18, (Conn. 2006).
↵23. Piedra at 1490, 44 (4th Dist. 2004).
↵24. Marsingill v. O'Malley, 58 P3d. 495, 499, 504–505, (Alaska 2002) (The quantity and specificity of this information should be tailored to meet the preferences and needs of the individual patient.).
↵25. Hook v. Rothstein, 281 S.C. 541, 552, 316 S.E.2d 690, 698, (S.C.App. 1984), citing 88 A.L.R.3d 1008, 1012 (1978); see, also Riedisser v. Nelson, 111 Ariz. 542, 534 P.2d 1052 (1975); Brown v. Wood, 202 So.2d 125 (Fla.App.1967); Ziegert v. South Chicago Community Hospital, 99 Ill.App.3d 83, 54 Ill.Dec. 585, 425 N.E.2d 450 (1981); Tatro v. Lueken, 212 Kan. 606, 512 P.2d 529 (1973); Woolley v. Henderson, supra; Marchlewicz v. Stanton, 50 Mich.App. 344, 213 N.W.2d 317 (1973); Ross v. Hodges, 234 So.2d 905 (Miss.1970); Cress v. Mayer, 626 S.W.2d 430 (Mo.App.1981); Llera v. Wisner, 171 Mont. 254, 557 P.2d 805 (1976); Moore v. Underwood Memorial Hospital, 147 N.J.Super. 252, 371 A.2d 105 (1977); Bulter v. Berkeley, 25 N.C.App. 325, 213 S.E.2d 571 (1975); Wilson v. Scott, 412 S.W.2d 299 (Tex.1967); Stundon v. Stadnik, 469 P.2d 16 (Wyo.1970).
↵26. Id., citing Cobbs v. Grant, 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1 (1972); Logan v. Greenwich Hospital Ass'n, 191 Conn. 282, 465 A.2d 294 (1983); Canterbury v. Spence, 464 F.2d 772 (D.C.Cir.1972), cert. denied, 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1972); Revord v. Russell, 401 N.E.2d 763 (Ind.App.1980); Percle v. St. Paul Fire and Marine Ins. Co., 349 So.2d 1289 (La.App.1977); cert. denied, 350 So.2d 1218 (La.1977); Harnish v. Children's Hospital Medical Center, 387 Mass. 152, 439 N.E.2d 240 (1982); Cornfeldt v. Tongen, 295 N.W.2d 638 (Minn.1980); Gerety v. Demers, 92 N.M. 396, 589 P.2d 180 (1978); Congrove v. Holmes, 37 Ohio Misc. 95, 66 Ohio Op.2d 295, 308 N.E.2d 765 (1973); Scott v. Bradford, 606 P.2d 554 (Okl.1980); Getchell v. Mansfield, 260 Or. 174, 489 P.2d 953 (1971); Cooper v. Roberts, 220 Pa.Super. 260, 286 A.2d 647 (1971); Cross v. Trapp, 294 S.E.2d 446 (W.Va.1982); Trogun v. Fruchtman, 58 Wis.2d 596, 207 N.W.2d 297 (1973).
↵27. See, e.g., Culbertson v. Mernitz, 602 N.E.2d. 98, 103, 106, (Ind. 1992) (citing AMA Code of Medical Ethics 8.08 in establishing the reasonably prudent physician standard).
↵28. David W. Louisell & Harold Williams, Medical Malpractice § 22.05[3], [4] [B] (2009).
↵29. Willis at 1255.
↵30. Canterbury at 786; see Cobbs v. Grant, 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1, 10–11 (1972).
↵31. Keogan at 318, 1254.
↵32. David W. Louisell & Harold Williams, Medical Malpractice § 22.05[3], [4] [B] (2009).
↵33. Sard v. Hardy, 281 Md. 432, 450, 379 A.2d 1014, 1025 (Md. 1977).
↵34. Cross at 455.
↵35. Johnson by Adler v. Kokemoor, 199 Wis.2d 615, 545 N.W.2d 495 (Wis. 1996) (According to the record the plaintiff had made inquiry of the defendant's experience with surgery like hers. In response to her direct question about his experience he [misrepresented] that he had operated on aneurysms comparable to her aneurysm “dozens” of times).
↵36. Moore v. Regents of the Univ. of Cal., 51 Cal.3d 120, 271 Cal.Rptr. 146, 151–52, 793 P.2d 479 (Cal. 1990) (failure to inform patient of physician's research and economic interests in procedure prior to conducting it); Barriocanal v. Gibbs, 697 A.2d 1169, 1170, 1173 (Del.Supr. 1997) (failure to disclose that physician had not recently performed aneurism surgery and there were other nearby hospitals that specialized in aneurism surgery); Hidding v. Williams, 578 So.2d 1192, 1198 (La.Ct.App. 1991) (failure to inform patient that physician suffered from alcohol abuse at the time of the proposed surgery); Goldberg v. Boone, 396 Md. 94, 912 A.2d 698, 717 (Md. 2006) (failure to inform patient there were other, more experienced surgeons in the region that could perform the proposed procedure); Johnson ex rel. Adler v. Kokemoor, 199 Wis.2d 615, 545 N.W.2d 495, 504–08 (Wis. 1996) (failure to disclose to patient there are substantially different morbidity and mortality rates of the proposed procedure depending on the physician's experience), but see Willis v. Bender, 596 F.3d 1244 (10th Cir.Wyo. 2010) (not adopting requiring physician to disclose limitations).
↵37. Keogan at 318, 1254; see Gates v. Jensen, 92 Wash.2d at 251, 595 P.2d 919, Betesh v. United States, 400 F.Supp. 238 (D.D.C. 1974).
↵38. Duncan v. Scottsdale Medical Imaging, Ltd., 205 Ariz. 306, 311, 70 P.3d 435, 440, (Ariz. 2003) (limiting care by excluding a specific medication); see, e.g., Perna v. Pirozzi, 92 N.J. 446, 457 A.2d 431, (N.J., 1983).
↵39. Duncan at 311, 440 (Her general authorization of an injection does not defeat her battery claim because her consent was limited to certain drugs. Duncan explicitly conditioned her consent on the use of morphine or Demerol and rejected the use of any other drug. Conduct involving the use of a sedative other than morphine or Demerol, contrary to explicit instruction and understanding, cannot be viewed as consensual.).
↵40. Duncan at 311, 440; see Ashcraft v. King, 228 Cal.App.3d 604, 278 Cal.Rptr. 900, 904 (1991) (surgeon committed battery when patient's consent to operation was conditioned on use of family-donated blood only, and surgeon intentionally violated condition.).
↵41. Smith v. Weaver, 225 Neb. 569, 574, 407 N.W.2d 174, 177 (Neb. 1987).
↵42. Willis at 1254.
↵43. Canterbury at 790, 281.
↵44. David W. Louisell & Harold Williams, Medical Malpractice § 22.05[3], [4] [B] (2009).
↵45. Willis at 1258 (The court said nothing in its ruling prevented the physician from being held liable for misrepresentation.).
↵46. Verschoor v. Mountain West Farm Bureau Mut. Ins. Co., 907 P.2d 1293, 1299 (Wyo. 1995).
↵47. Restatement (Second) Of Torts § 311(1) (1965).
↵48. Duncan at 311, 440 (if a patient's consent is obtained by a health care provider's fraud or misrepresentation, a cause of action for battery is appropriate), see 6 Am.Jur.2d Assault and Battery § 127 (1999).
