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The difference between medical malpractice and medical battery

Medical malpractice and medical battery almost sound like the same thing, and both types of cases involve important facts about what type of medical treatment was received.

However, medical battery can sometimes be a lot easier to pursue than medical malpractice because of their differences.

Medical malpractice claims involve the negligent actions of a hospital, doctor, nurse or other medical professional. Plaintiffs have to prove that the actions amounted to substandard care and that they were directly harmed as a result of that substandard care. That issue is central to any medical malpractice claim and often difficult to prove. It also usually requires complex (and expensive) expert medical testimony about what is and isn't the appropriate standard of care for a certain procedure or situation.

On the other hand, medical battery cases are entirely about informed consent. The jury doesn't have to decide if the appropriate standard of medical care was violated or not.

Medical battery just requires the plaintiff to prove some relatively simple facts:

—He or she wasn't informed in advance about the non-emergency procedure that was done to his or her body.

—If he or she was informed, there wasn't a complete disclosure of all of the possible risks associated with the procedure.

—If the patient had known about the procedure or been fully informed of its potential risks, he or she wouldn't have consented to it.

—Or, absent all of the above, the patient was aware of the procedure and its risks, declined to give consent and the procedure was then performed anyhow.

For example, since children can't consent for themselves, their parents have to give consent for any medical procedures. If the parents of a newborn boy don't agree to a circumcision but it's done anyway, even if the hospital just accidentally assumes that it is what the parents would want or mixes that baby up with another baby, that could be considered medical battery.

It's important to note that medical battery can exist even when the end result, when viewed objectively, benefits the patient in some way. For example, giving a patient painkilling narcotics after the patient refused them could also be considered medical battery even if it helped ease the patient's considerable pain.

Anyone who is unsure about whether or not they have a claim for medical malpractice or medical battery (or both), can find the advice of an attorney beneficial to learning about all your legal options. .

Source: FindLaw, "Gross Negligence and Lack of "Informed Consent"," accessed Jan. 11, 2017

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Gary D. Ginsberg is a Certified Civil Trial Lawyer who has been recognized as an expert in litigating cases in the courts of New Jersey.

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