Consent

Abstract

It is a well-established principle that, in the absence of a serious emergency, a physician must obtain consent before examining a patient or performing a diagnostic or therapeutic procedure. As clearly enunciated by Benjamin Cardozo in 1914,¹ an adult of sound mind has the right to decide what shall be done with his or her own body. Traditionally, failure to obtain consent from a patient before instituting medical care exposed a physician to a charge of battery, which is defined legally as the intentional harmful or offensive touching of another person without authorization. The mere touching without permission is sufficient to incur liability, even if the procedure is performed properly, beneficial, and without any negative effects. As an intentional tort, battery may not be covered under a professional liability policy. It also could expose a physician to punitive damages, additional awards intended not only to provide restitution to the injured party but also to punish the offending party and deter similar behavior in the future. Obtaining any consent to the procedure, even if not fully informed (see below), defeats the claim of battery.