September 24, 2019

The Court of Appeal of the State of California First Appellate District Division Five (“California Appellate Court”) held in its opinion filed on August 30, 2019 that the discovery rule applies to medical battery claims.


A battery is any intentional, unlawful and harmful contact by one person with the person of another. Section 335.1 sets forth a two-year limitations period for actions based on “battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.” This two-year period begins to run when the cause of action accrues. (§ 312.) Section 335.1, defining the limitations period for battery, does not specify whether commencement of the period may be postponed due to the plaintiff’s lack of discovery. Nonetheless, the California Appellate Court held, “the trial court erred to the extent it concluded that the discovery rule is inapplicable to medical battery claims as a matter of law.”

Medical Battery v. Professional Negligence

To establish a medical battery, the plaintiff must prove, among other things, that the defendant performed a medical procedure without the plaintiff’s consent, or that the plaintiff consented to one medical procedure but the defendant performed a substantially different one. By comparison, where a doctor obtains consent of the patient to perform a type of treatment, but fails to disclose a potential complication that was a known risk yet not an integral part of the treatment procedure, the failure to obtain informed consent is a failure to conform to the proper standard and thus sounds in negligence. And where a doctor obtains consent of the patient to perform a type of treatment, and performs that treatment but in a manner that does not meet the applicable standard of care, the cause of action sounds in professional negligence.

The California Appellate Court stated, “three general situations support two different causes of action: (1) treatment without consent is a battery; (2) treatment without informed consent is professional negligence; and (3) treatment that otherwise does not meet professional standards is professional negligence.”

In the case it was deciding, the California Appellate Court held: “Daley [the plaintiff] insists her claim sounds in battery, because respondents deliberately performed open laparotomies and open hysterotomies, even though those procedures were substantially different than the percutaneous surgery to which they knew she consented. Respondents insist Daley’s claim is for professional negligence—the manner in which a procedure to which plaintiff consented was performed—since she consented to two laser ablations to treat her TTTS [twin-twin transfusion syndrome] and complains only that the surgeons performed that surgery using incisions (laparotomy and hysterotomy) rather than a puncture (percutaneous), and those two approaches do not reflect substantially different procedures. As the court implicitly found in denying respondents’ summary judgment motion, the issues cry out for consideration by a trier of fact who can observe the witnesses and evidence at a trial. Because the appellate record and the parties’ appellate briefs do not equip us to rule that the procedure performed on Daley was not, as a matter of law, substantially different than the procedure to which she consented, we cannot say that the court erred in concluding there was a triable issue precluding summary judgment, that the trial judge erred in construing Daley’s claim as one for medical battery, or that the gravamen of Daley’s complaint was professional negligence.”


If you or a loved one suffered harm as a result of medical negligence or medical battery in California or in another U.S. state, you should promptly find a California medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice or medical battery claim for you and represent you or your loved one in a medical malpractice or medical battery case, if appropriate.

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