Fusion of Wrong Vertebrae Sounded in Negligence Not Battery

A man underwent a posterior cervical fusion and foraminotomy in order to relieve his back pain. Foraminotomy is a medical operation used to relieve pressure on nerves that are being compressed by the intervertebral foramina, the passages through the bones of the vertebrae of the spine that pass nerve bundles to the body from the spinal cord. The procedure called for the stabilization of the C5 and C6 vertebrae by using bars connected to the spine with screws, as well as the insertion of a bone graft. The surgeon who performed the operation wrote a report indicating that he believed that he had operated on the C5 and C6 vertebrae.


X-rays taken after the surgery revealed that the surgeon had fused the wrong vertebrae. The surgeon had fused the C6 vertebra to the C7 vertebra instead of the C5 vertebrae. The surgeon informed the man of that fact. The surgeon later performed a corrective surgery, removing the screws and bars connecting the C6 and C7 vertebrae and performing the surgery at the correct level.


The man sued the surgeon for negligence and battery. The negligence claim was later nonsuited. The man and the surgeon proceeded to a bench trial on the battery claim. The theory at trial was that the surgery on the wrong vertebrae went beyond the scope of the consent that the man had given and, therefore, constituted a battery.


At trial, the surgeon testified that when he spoke with the man, he informed the man that, among other risks of the surgery, there was a risk that the hardware could be misplaced and would have to be revised. The surgeon also presented expert testimony that operating at the wrong level was a recognized complication of this type of surgery. The surgeon argued that he did not intentionally operate on the wrong level of the man’s spine and that tort of battery in the medical setting does not include unintentional errors.


The man’s wife denied that either she or her husband had received a warning from the surgeon that performing the surgery on the wrong vertebrae was a recognized complication of this type of surgery. The wife argued that consent was given for surgery to fuse the C5 and C6 vertebrae. No consent for surgery between the C6 and C7 vertebrae was given. Because the surgery exceeded the scope of consent, it constituted a battery.


The surgeon moved to strike twice. Both times the surgeon argued that although the facts revealed possible negligence, they did not establish a battery. The surgeon also argued that the man had failed, as required, to produce an expert to testify concerning the standard of care. At the conclusion of the bench trial, the Circuit Court of Henrico County indicated it would take the motions to strike under advisement. The trial court entered judgment for the man.


The Supreme Court of Virginia reversed. On these issues of first impression, the court held that the surgeon’s actions did not constitute a battery and whether the surgeon failed to disclose certain risks sounded in negligence.


The surgeon’s actions did not constitute a battery. To be liable for battery in the medical context, (1) the defendant health care provider must have intentionally made physical contact with the patient, and (2) that physical contact must have been deliberately against the patient’s will or substantially at variance with the consent given. The court reasoned that the surgeon set about performing the exact procedure the man consented to, on the intended structure of the body (the spine), but unintentionally, either by negligence or as an unforeseen complication, performed the procedure in a location on that structure different from the one that was targeted (an adjacent level of the spine). Battery, unlike negligence, is an intentional tort. In battery cases, unlike negligence cases, expert medical testimony is not required to establish standard of care or to show causation. The factual issue in battery cases, unlike negligence cases, is whether the patient did or did not consent to the specific operation performed by the physician regardless of the skill with which the physician performed the operation. The man consented to a foraminotomy and fusion between the C5 and C6 vertebrae. The surgeon performed a foraminotomy fusion and intended to perform that operation between the C5 and C6 vertebrae. The surgeon did not perform a substantially different or additional procedure which differed significantly in scope relative to the procedure for which the man provided consent. The court found that the evidence unequivocally established that the surgeon did not intend any unpermitted contact. The court concluded, because the man could not establish the surgeon’s intent, the battery claim failed as a matter of law.


Whether the surgeon failed to disclose certain risks sounded in negligence. Whether a patient’s consent is truly informed is a matter that sounds in negligence. The dispositive question is whether the physician breached the standard of care by failing to disclose certain risks. Breach of the standard of care falls within the realm of negligence and does not constitute an intentional tort. To defeat a battery claim, the information a physician must disclose to a patient is limited to the nature of the procedure and what the doctor proposes to do to the patient.


The Supreme Court of Virginia reversed the trial court’s entry of judgment in favor of the man.


See: Mayr v. Osborne, 2017 WL 445915 (Va., February 2, 2017) (not designated for publication).


See also Medical Law Perspectives, August 2013 Report: Surgical Misidentification: Wrong Site, Wrong Procedure, Wrong Patient


See also Medical Law Perspectives, October 2014 Report: Backaches and Court Battles: When Chronic Back Pain Leads to Litigation


See the Medical Law Perspectives November 4, 2014, Blog: New Back Pain Treatment Options Offer Hope, Require Caution