Medical Consent and Battery

I was told a story from a new friend regarding how they were involved in an accident, had to get medical procedures, yet when they were asked to sign papers at the hospital, they may not have been of a sound mind to sign for consent. This made me want to remind myself what procedures were allowed in times of emergent medical situations, as in my friend's case.


So what if you don’t get permission to do a medical procedure on someone? That is called battery.

The legal definition of battery is the harmful or offensive touching of another human being without permission.

What is battery in a medical situation? The common law meaning of battery is the forcing of treatment on an unwilling person, which is no different than attacking a person with a hatchet.

Battery Is Both a Criminal and Civil Offense

Battery is a criminal offense, and it can also be the cause of a civil lawsuit. The important part of battery is that the touching is unauthorized, not that it be intended to harm the person. Thus forcing beneficial care on an unwilling patient would be battery.Schoendorff v. Society of New York Hospital, 105 N.E. 92, 93 (N.Y. 1914) .

Informed Consent

Human beings above the age of consent, 18 in most states, who have a sound mind have a right to determine what shall be done with his own body when they have been briefed on what will be done to them. This is called informed consent. Hence a doctor, hospital, or surgeon who performs an operation without the patient’s explicit consent to the procedure commits a battery for which he is liable in damages.

Emergency Exception

The only exception is in cases of emergency, where the patient is unconscious and where it is necessary to operate before consent can be obtained.

Implied Consent

You would think that people are medically battered frequently. However, battery is only an issue in very limited circumstances where there is a complete and total lack of consent and there were no other legal justifications for treating the patient without consent.

What has been shown though years of case law, is that when a patient voluntarily seeks treatment, like allowing themselves to be transported to a hospital or going to a hospital generally, the patient will be found to have implied their consent to the treatment by merely submitting to the treatment. The consent here is implied, which is different than informed consent, as explained above.

When is Battery is A Serious Legal Threat?

Battery is a legal threat in three situations:

1) If the patient has been lied to about the treatment or there is other fraud in the informed consent, then the entire consent is invalid.

2) When the patient is incompetent to consent and receives improper care. Being competent is where a person has the ability to understand what they are consenting to and they are above the legal age to do so, usually over the age of 18.

3) Most frequently, the patient has refused care and the care is forced on him or her, typically in an involuntary setting. What this means is that a patient who refuses care may not be treated without a court order. This is a cause for a civil lawsuit for battery.

However, usually even if the patient has refused care, the physician, hospital, or healthcare practitioner is unlikely to be charged with the crime of battery if the treatment was meant to be beneficial. Criminal law will usually only go after a doctor, surgeon, or a hospital if it was clear that they intended harm.


Please make sure that your patients are fully informed and are of sound mind to understand exactly what you and your organization will do to them. It's not only legally required, but it's the right thing to do. And it could keep you and your organization from being cross examined during deposition or on the witness stand.