Consent: Can Elective Surgery Become Assault and Battery under Georgia Law?

Consent: Can Elective Surgery Become Assault and Battery?

When people complain about doctors it’s usually because of what they won’t do. They won’t prescribe a medicine, they won’t run a certain test, sometimes they won’t even listen.  But in the case of plastic surgeon Dr. Andrew Ordon, star of the syndicated reality show “The Doctors”, the opposite may be true. A California woman says the good doctor gave her much more than she asked for.

Medical Assault & Battery?

She alleges that in 2016 Orton saw her to correct an uneven left breast. They both agreed that a “fat transfer” would be the best option. Fat transfer, or “fat grafting”, is a relatively new procedure in breast augmentation. It involves removing fat tissue from certain areas of the body by liposuction. Fat might come from the thighs, buttocks, or belly. The tissue is then processed into a liquid and injected into the breast to fix problems of shape, balance, or position.

The woman scheduled the procedure but alleges that’s when the trouble started.  In her lawsuit she claims the doctor tried to “up sell” her on the more common technique of full breast augmentation, using implants. She refused.  After the procedure the woman woke up in shock to find both her breasts containing new implants with Dr. Ordon allegedly assuring her that she and her husband would be happier. She followed up by suing for assault and battery, intentional infliction of emotional distress, and medical expenses for removing the unwanted implants.

What Is Consent?

Most doctors will only do what they believe is in their patient’s best interests. But where is the ethical line between what the patient wants, and what the doctor thinks is best? The authority a doctor has to touch your body, perform surgery, and administer medicine is governed by a legal doctrine called informed consent. It’s a simple concept that goes like this: you must agree (usually in writing) to the doctor’s treatment, whatever that might be. What’s more important is your consent must be “informed”. In other words, you have to clearly understand exactly what the doctor is going to do. The doctor can go no further than your consent allows (except in cases where your life may be in jeopardy).

If you’ve ever undergone surgery you may remember a long form, with lots of fine print, detailing what the doctor would be doing. It also listed the possible outcomes and side effects of the procedure. This document is supposed to educate the patient so their consent can be knowing and informed.

Lawsuit: Assault, Battery, and Intentional Infliction of Emotional Distress

Clearly, the woman from California and Dr. Ordon were in a very different situation. She neither wanted nor consented to breast implants. Her lawsuit claims “assault and battery” a phrase anyone who’s watched a police drama has heard before. But what exactly is “assault” and what is “battery”? The answer varies by jurisdiction, but a simple definition of assault goes like this: intentionally putting another person in reasonable apprehension of an imminent harmful or offensive contact. “Apprehension” doesn’t mean fear, it means the person believes that something is going to happen—in this case unwanted contact. Was the woman ever in “apprehension” of unwanted contact? She was asleep when the doctor inserted implants so perhaps not.

A “battery” is defined as: harmful or unwanted contact with another person. Inserting unwanted implants clearly falls into the category of an unwanted touching. Score one for the woman from California.

What about intentional infliction of emotional distress (sometimes called “outrage”)? The legal definition is this: a person acting abominably or outrageously with the intention of causing another to suffer severe emotional distress. Did the doctor want his patient to feel this way? Probably not, but the legal standard is what a “reasonable person” would expect to be the outcome of such a bad act. Performing an unwanted surgery that dramatically changes a woman’s appearance probably qualifies. In other words, a reasonable person would understand the effects of an unwanted surgery on a patient’s emotions.

In this case, the woman alleges she suffered complications in the form of bleeding in her breast capsule and had to pay to have the implants removed. If she proves the doctor performed the surgery without her consent he will likely have to paid for these expenses.

Medicine and the Law

It’s true that in most cases you can trust your doctor. They are trained professionals and undergo vigorous testing and supervision. They adhere to strict ethical standards and typically have your best interests in mind. But don’t forget that you ultimately control your medical treatment. You get to decide what happens to your body. If you don’t understand a doctor’s treatment, ask questions until you do understand or see another doctor. You must trust the person in charge of your medical care and if at any time you feel you don’t, it’s time to pause and find another professional to help you.

Matt Kahn
Matt Kahn is an Atlanta personal injury lawyer and a partner at the law firm Butler Kahn. Matt has dedicated his career to fighting for individuals and families who had been harmed by the negligence of others. At Butler Kahn, he has had the honor of helping families who have lost children in motor vehicle accidents and people who were critically injured. He helped a family secure a $45 million settlement to provide lifetime care for their son, who was critically injured in a motorcycle accident. Matt is a graduate of Emory University School of Law and has been recognized as a Super Lawyers’ Rising Star and by Best Lawyers as One to Watch. He has received an Avvo 10.0 Top Attorney rating. Connect with me on LinkedIn



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