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What's Wrong with Nonconsensual Medical Treatment?
A Florida Case Explores the Boundary Between Malpractice and Battery


Wednesday, Mar. 10, 2004

In January of this year, a Jehovah's Witness, Julio Cordero, filed suit against a Florida hospital where he was treated after a car accident in May 2000. Cordero alleges battery, defined as "trespass against his body," and falsification of medical records. He does not claim, however, that he received sub-par medical treatment.

Instead, Cordero alleges that after repeatedly instructing paramedics and hospital personnel not to perform a blood transfusion under any circumstances, he was given a transfusion during the surgery that he underwent at the hospital.

Florida law caps the non-economic damages that a plaintiff can recover in a medical malpractice action at half a million dollars. Cordero argues, though, that his action neither alleges nor seeks recovery for medical malpractice and therefore does not trigger the application of the damages cap.

Because he does not allege economic harm, the court's decision whether to classify his lawsuit as falling inside or outside the rubric of malpractice litigation will be significant.

Medical Malpractice

When a plaintiff sues a medical professional for malpractice, he typically claims that the practitioner should have done something different from what she did, and that the result of the failure to act (or to refrain from acting) in the appropriate manner was to injure the patient.

For example, suppose a patient has a severe allergy to a particular antibiotic, an allergy that is listed in his medical file. Despite the ready availability of this information, a doctor prescribes the medication to him, and it causes him to become extremely sick.

Such a patient would plainly be the victim of medical malpractice. It was negligent, in other words, for the doctor to prescribe an antibiotic without first checking her patient's chart to rule out allergies. In addition, the foreseeable consequences of her negligence were life-threatening illness and suffering. These facts, together, add up to a cognizable malpractice claim.

Informed Consent: Medical Malpractice Without "Bad Medicine"?

The garden variety case of medical malpractice thus involves "bad medicine" -- that is, a decision to undertake a negligent course of treatment that represents a deviation from standard practice. One species of what most jurisdictions call medical malpractice, however, does not quite fit this model. That is the failure to obtain a patient's informed consent prior to treatment.

An informed consent claim does not necessarily allege that a medical professional selected a predictably flawed course of treatment. A doctor may well have prescribed a medication that would routinely and appropriately be chosen for a person in the patient's condition. Or a surgeon may have performed a procedure that conformed with standard medical practice.

Notwithstanding medically standard treatment, however, no intervention is entirely risk-free. Every time surgery is performed under general anesthesia, for example, there is a non-zero risk that the patient will die as a result. And every "cure" carries potential side effects that can -- on occasion -- be "worse than the disease."

As a result of these potential injuries, a doctor must tell her patients about the risks and benefits of a proposed course of treatment. That way, when the patient agrees to be treated, he can do so with an understanding of what is at stake. In an informed consent session, the patient will be told about a series of risks (along with their respective probabilities), in addition to the potential consequences of alternative treatments or no treatment at all. Armed with this information, a patient can decide what to do while taking into account his own values.

Consider an example. Mr. Patient learns that treating his cancer with surgery and chemotherapy carries a significant risk of temporary hair loss and nausea, while surgery alone risks the recurrence of his malignancy. After hearing this information, Mr. Patient can decide that because he is a fashion model and cannot work without a full head of hair, and because he hates the sensation of nausea more than any other kind of pain, he will opt for surgery without chemotherapy.

The doctor, in suggesting chemotherapy, has not been negligent. Rather, she has understandably erred on the side of minimizing the risk of a recurrence. The informed patient, however, can choose to decline the doctor's proposal once he understands what it entails.

Informed consent is thus an autonomy-focused inquiry -- literally permitting the patient knowledgeably to choose his poison. Still, informed consent generally comes into play in a courtroom setting only when a patient suffers some side effect or other ill consequence from a course of treatment to which he consented in the absence of adequate risk/benefit information.

Our male model, Mr. Patient, therefore could not ordinarily sue after agreeing to and receiving chemotherapy -- even if he did not know about hair loss and nausea -- if he suffered neither hair loss nor nausea. Though the doctor should have warned him about these potential side effects, her failure to do so is deemed harmless (within a malpractice framework) if no ill effects ultimately come to pass.

Therefore, in a deep sense, even the informed consent lawsuit is about "bad medicine." Because even the most appropriate and sound treatments carry risks, the patient is given the ammunition to choose the lesser of evils from his own perspective. And in the absence of material information, the harm that occurs might be attributed to the doctor rather than to the patient. In most jurisdictions, the failure to obtain informed consent, coupled with harmful consequences of that failure, is classified as malpractice.

The classification of informed consent claims as "malpractice" matters a great deal to plaintiffs in Florida, where the state places an upper limit of $500,000 on how much in non-economic damages a plaintiff can collect for medical malpractice.

Battery or Malpractice?

Enter Julio Cordero, the patient discussed at the beginning of this column. Cordero was injured in a car accident and brought to the Delray Medical Center in Delray Beach.

According to his complaint, Cordero was described by medical personnel as very alert, and in this condition, he repeatedly indicated that he did not agree to a blood transfusion under any circumstances. As a Jehovah's Witness, Cordero reads the Biblical prohibition against eating blood as including blood transfusions.

Despite his alleged refusal, however, Cordero apparently did receive a transfusion during surgery. Later, he learned that someone had -- allegedly falsely -- written in his chart that he had consented to transfusion.

As noted above, Cordero alleged battery based on the fact that blood had been transfused into his body without his consent. Under the law, the plaintiff asserted, this was a trespass on the body.

The Florida courts will ultimately decide whether the statutory damages cap applies to cases such as this. Let us look at some arguments that ought to play a significant role in that decision.

Arguments For Applying the Cap

On the side of applying the cap is the argument that if medical "lack of informed consent" claims are malpractice claims, then it follows that medical "lack of any consent" claims like Cordero's ought to be as well.

After all, in both kinds of cases, a patient trusts a doctor to take the patient's wishes into account in the process of making treatment decisions. Whether a doctor withholds material information or simply ignores a lack of consent, she betrays the patient's trust and thereby undermines his autonomy. In both cases, in other words, there is no real consent. And if such cases are sometimes deemed malpractice - that is, if patient choice is part of good medical practice - then all such cases should be.

Battery, by contrast, ordinarily involves forcible touching by an unwanted party. Examples include hitting a person on the street or throwing a piece of ice at someone's head.

These sorts of cases "feel" quite different from the provision of sound medical care to a patient who has not consented to that care. The latter is less like a mugging or a street crime than it is like a medical error.

Arguments Against Applying the Cap

On the other side, a battery has historically been understood as an offensive and actionable touching, even in the absence of any physical harm. If you shove your neighbor, you commit a battery, even if the shove is not painful and leaves no mark or scar. That is because a person has a right not to be touched against her will - it is the violation of that right that represents the essential injury of battery, rather than any additional consequences.

Similarly, the Jehovah's Witness who refused consent to a transfusion has made and communicated an unambiguous directive to leave his body free of outside blood. The injury of which he complains is therefore not the realization of a risk (of HIV infection, for example) but the introduction of blood itself.

Informed consent, by contrast, is understood to be a means to an end, rather than an end in itself. The objective is to permit the individual patient to avoid the harms that are most aversive to that patient.

If the patient manages, despite the lack of information, to avoid all such harms, then the fact that he did not know in advance of consenting that they could have come to pass is usually no longer actionable. Positive and negative results are therefore decisive in informed consent cases (just as they are in malpractice cases generally), while results are largely beside the point in battery actions, where consent is virtually everything.

Indeed, the Cordero case itself captures the irrelevance of outcome. The reason that the plaintiff allegedly refused a transfusion was his belief that receiving blood into his body is a grave sin. There was accordingly no way to provide a transfusion while simultaneously honoring the patient's priorities. Medicine collided with autonomy precisely because the patient's choice was driven entirely by non-medical and even anti-medical concerns.

One way to think about such a choice is to observe that a parent of a small child could be barred by the law from making it on behalf of her child, for whom only sound (albeit informed) choices may be made. Parents do not have absolute autonomy rights over their very young children's medical status, and they may be divested of custody for failing to provide uncontroversially necessary and beneficial medical care -- even if that failure is a product of their religious faith.

A competent adult, however, can exercise the choice to refuse treatment for herself, however essential that treatment, on autonomy grounds alone. To override that choice is thus definitively not medical malpractice (and in fact, in the absence of a refusal to consent, the failure to transfuse might have itself been medical malpractice).

It is instead a nonconsensual touching, an offense in which even the noblest end of saving a life may not be justified by the means of overriding a competent adult's choice. This seems the more compelling side of the debate on the meaning of nonconsensual medical treatment. Cordero should accordingly be allowed to avoid the Florida damages cap in this case.

Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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