Case Summary

4621 REVIEW DENIED Medical negligence on the theory of informed consent consists of performing a surgical procedure to which the patient consented without being sufficiently informed regarding risks, while medical battery consists of performing a surgical procedure to which the patient has not consented at all; a jury instruction saying that defendant is liable for battery if he operated on the patient without informed consent was erroneous because it conflated negligence with battery; in a battery claim, a special verdict form asking whether defendant operated without the patient's informed consent, but not asking whether defendant operated with the patient's consent, is defective; since neither an erroneous jury instruction nor a defective special verdict form is a statutory ground for ordering a new trial, the only appropriate remedy in such a case is to enter judgment notwithstanding the verdict; the jury's findings in response to the erroneous instruction and defective special verdict form do not taint its conclusion that defendant was negligent, so the judgment should be reduced in accordance with limits imposed by the Medical Injury Compensation Reform Act (MICRA).

SAXENA v GOFFNEY (Medical Battery) 159 CA4 316 [See: CivC 3333.2; CCP 657; Cobbs v Grant 8 C3 229; Perry v Shaw 88 CA4 658, T/AT 6/01]