The Court of Appeals of Georgia (“Georgia Appellate Court”) held in its opinion dated May 21, 2021 that the trial court was correct in entering summary judgment for the defendant in a case where the plaintiff alleged medical battery.
The plaintiff had alleged that in March 2016, he underwent a laminectomy at a hospital owned by Emory Healthcare, Inc. (“Emory”). A foley catheter was placed during the procedure. Two days later, a nurse improperly removed the catheter without first deflating the balloon.
The plaintiff filed a civil action against Emory but later voluntarily dismissed his case. He then filed a renewal complaint based on the same allegations. The renewal complaint did not indicate precisely what theory of recovery the plaintiff was pursuing, but it alleged that the nurse’s failure to deflate the balloon violated “the basic and appropriate standard of care for nursing.”
Emory treated the action as a Georgia medical malpractice suit and after the discovery period had ended, it filed a motion for summary judgment arguing that the plaintiff had failed to produce the expert witness testimony necessary to support his claim of professional negligence.
The plaintiff asserted that, although he initially consented to the nurse’s removal of the catheter, he withdrew that consent by vehemently protesting and telling the nurse to stop after she began the removal. He contended that the nurse was negligent for failing to deflate the balloon before removing the catheter and he maintained that the nurse’s failure to stop removing the catheter in light of his protests was a battery.
The trial court ruled in Emory’s favor, concluding that the plaintiff had not raised a claim for battery in either his complaint or renewal complaint and, moreover, that all of the plaintiff’s claims sounded in professional negligence. The plaintiff asserted that he had raised not only a claim of professional negligence, but also a claim of simple battery, which does not require a professional opinion.
Georgia Appellate Court Opinion
The Georgia Appellate Court held “[the plaintiff’s] claim of error fails because he has not established that the nurse could have stopped removing the catheter without the cessation being detrimental to his health. Our precedent is clear that, absent such a showing, [the plaintiff] cannot sustain a claim for battery.”
Medical Battery For Continuing Treatment
The Georgia Appellate Court explained that for a medical practitioner to be subject to liability for battery based on continuing a treatment after the patient has withdrawn his consent, the plaintiff must prove two essential elements: (1) that when withdrawing his consent, the patient acted or used language that left no room for doubt in the minds of reasonable men that in view of all the circumstances consent was actually withdrawn, and (2) that it was medically feasible for the practitioner to desist in the treatment or examination at that point without the cessation being detrimental to the patient’s health or life from a medical viewpoint.
The Georgia Appellate Court held that the plaintiff “has not identified any evidence as to the second element – that the nurse could have stopped removing the catheter without the cessation being detrimental to his health.”
Source Wentz v. Emory Healthcare Inc., A21A0630.
If you or a loved one may have been injured as a result of medical battery in Georgia or in another U.S. state, you should promptly find a Georgia medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical battery claim for you and represent you or your loved one in a medical battery case, if appropriate.
Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in your state who may assist you.
Turn to us when you don’t know where to turn.