Pennsylvania Allows Jury Instruction with Intent Language in Medical Battery When Patient Refused Consent for Cesarean Section Surgery

A woman in her twenty-seventh week of pregnancy fell down the stairs at her home. She called her obstetrician who suggested she go to the hospital for some tests. At the hospital a test revealed the fetus had an abnormally low heart rate. The obstetrics resident on duty diagnosed the fetus with a life-threatening bradycardia and concluded that an emergency Cesarean section was necessary.


The woman, being a physician herself, believed the fetus could be experiencing an arrhythmia, which would not require surgical intervention. The obstetrics resident consulted with the woman’s treating obstetrician, who said they should proceed with the surgery. The woman alleged she refused to give consent. The obstetrics resident alleged she received oral consent from the patient prior to conducting the emergency Cesarean section and delivering the child.


The woman and her child sued the doctors and hospital for medical battery for conducting a Cesarean section after twenty-seven weeks of pregnancy without the woman’s consent. After a jury trial, the trial court entered a judgment in favor of the defendants. The mother and child appealed arguing that the jury charge incorrectly required proof that the surgeon performed the operation with the intent to harm.


The Supreme Court of Pennsylvania affirmed the lower court’s decision holding that the jury charge clearly and accurately set forth the law. It is well-settled in Pennsylvania that an operation without the patient's consent sounds in battery. The court noted that the Pennsylvania Suggested Standard Jury Instructions include a charge on battery and a charge on informed consent, but contained no specific charge applicable to a medical battery/lack-of-consent claim. The trial judge used a non-standard jury instruction that included the sentence, “A battery is an act done with the intent to cause a harmful or offensive contact with the body of another, and directly results in the harmful or offensive contact with the body of another,” over the plaintiffs’ objection.


The plaintiffs objected to this instruction on the basis that it was an improper statement of the law because the “intent to cause harm” element of the intentional tort of battery should not have been included in a charge on lack of consent for a surgical procedure. Both the plaintiffs and defendants agreed, and the Supreme Court of Pennsylvania held, that a plaintiff in a medical battery/lack-of-consent case need not prove that the defendant surgeon performed the unauthorized operation with the intent to harm the patient. A patient establishes that an unauthorized surgery is “offensive” by proving that the surgery or “touching” was intentional and not consented to.


The Supreme Court of Pennsylvania reasoned that jury instructions are to be reviewed in their entirety. Here, while the instructions did include a one-sentence definition of battery generally, every other sentence made clear that the jury’s decision turned on whether the patient refused consent. Therefore, the jury instructions clearly and adequately set forth the law.


See: Cooper ex rel. Cooper v. Lankenau Hosp., 2012 WL 3568786 (Pa., August 20, 2012) (not designated for publication).