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In a case of first impression, the Virginia Supreme Court limits scenarios in which a physician may be held liable for battery.

Matthew T. Mayr, et al. v. Catherine Osborne, Administrator of the Estate of Michael J. Osborne
No. 151985 (February 2, 2017) Supreme Court of Virginia

by Julia L. Houp, Law Clerk
Semmes, Bowen & Semmes (

Available at:

In an effort to alleviate back pain, Matthew T. Mayr, M.D. performed a posterior cervical foraminotomy and fusion on Michael J. Osborne. The surgery targeted the C5-C6 level of Mr. Osborne’s spine. In order to perform this procedure, the C5-C6 level needed to be stabilized by using bars connected to the spine with screws, as well as the insertion of a bone graft. Dr. Mayr performed this operation, and his operative report revealed that he believed that he operated on the C5-C6 level.

After the surgery, x-rays uncovered that Dr. Mayr fused the wrong level. Instead of fusing level C5-C6, he fused level C6-C7. Dr. Mayr informed Mr. Osborne of this and later performed a corrective surgery, where he removed the screws and bars at the C6-C7 level, and performed the surgery at the correct level.

Catherine Osborne, the wife of Michael Osborne and the administrator of his estate1, filed a complaint alleging that Dr. Mayr committed a battery. At trial, her theory was that the surgery performed on the wrong level “went beyond the scope of the consent that [Dr. Mayr] was given,” and therefore, constituted a battery. The trial court entered judgment for Ms. Osborne and later entered a final order to that effect.

While the Virginia courts have recognized that, in some circumstances, a physician can be liable for a battery—also known as a “technical” battery—previous precedent did not call upon the Supreme Court of Virginia to draw the boundary that distinguishes a technical battery from an action for negligence. A technical battery is present where (1) the patient placed terms or conditions on consent for a particular procedure, and the doctor ignored those terms or conditions; (2) the physician intentionally performed an additional procedure beyond the procedure the patient consented to; or (3) the physician intentionally performed a different procedure or one that differs significantly in scope from the procedure for which the patient provided consent. See Pugsley v. Privette, 220 Va. 892 (1980); Washburn v. Klara, 263 Va. 586 (2002); Woodbury v. Courtney, 239 Va. 651 (1990).

Here, Dr. Mayr intended to perform the exact procedure the patient consented to, on a specific structure of the body, but unintentionally performed the procedure in a location on that structure that was different from the one that was targeted. Because this was a case of first impression, the question for this court was whether a technical battery extended to this scenario.

In writing the opinion, Judge McCullough went through the analysis of what one must prove in order to establish the intentional tort of battery. Whether a battery has occurred generally centers around the question of consent. In order to be liable for battery, the defendant health care provider must have done two (2) things: (1) intentionally made physical contact with the patient; and (2) the physical contact must have been deliberately against the patient’s will or substantially at variance with the consent given. The question of consent is further broken down into two (2) related issues: (1) consent for the procedure; and (2) whether the health care provider disclosed the risk associated with a particular procedure.

The court held that Ms. Osborne’s battery claim failed as a matter of law. First, the court found that Mr. Osborne consented to the surgery. While Dr. Mayr performed the operation on the incorrect area of the spine, he did not perform a substantially different or additional procedure that differed significantly in scope relative to the procedure for which Mr. Osborne provided consent. The evidence undeniably demonstrates that Dr. Mayr did not intend any unpermitted contact, thus Ms. Osborne’s claim must fail.

Additionally, the court found that whether a physician failed to disclose certain risks—whether the patient’s consent is truly “informed” —is a matter that sounds in negligence, not battery. “[M]ost courts now reserve the battery theory for cases where the treatment was completely unauthorized, while negligence is the basis for actions alleging that the physician obtained the patient’s consent without making the appropriate disclosure of risks and benefits.” 4 Leonard J. Nelson III, Medical Malpractice § 22.03[1] (David W. Louisell & Harold Williams, eds. 2016). This court agrees with the majority view, and therefore held that Ms. Osborne’s claim must fail.

Because Ms. Osborne’s battery claim fails as a matter of law, this court reversed the trial court’s judgment. While Ms. Osborne’s claim failed, she was not without a remedy, as she could choose to pursue a negligence action instead.

1 Mr. Osborne’s death is unrelated to this action.