The Facts:
Following surgery in 1975 for a ruptured disk at L5-S1, Ms. Jones was concerned and cautious about her lower back. She did not experience further back problems until 1981 and 1982, when she saw Dr. Malloy for unrelated shoulder and neck pain. She was careful to advise him of the disk surgery and Dr. Malloy admitted that she refused to allow him to "work on her low back" in any way. She would not even allow him to x-ray that area.
Ms. Jones alleged that the doctor complied faithfully with that restriction until September 1982 when he was treating her upper back in the usual manner but suddenly and unexpectedly "pressed sharply with the heels of his hands on her lower back." According to the patient, "she cried out in pain and arose from the treatment table ...," returning only with assurances from the doctor that the treatment would not be repeated. In the litigation that followed, Ms. Jones testified that she left the office in pain which worsened and eventually led to surgery seven months later.
Dr. Malloy denied having performed any treatment on Ms. Jones' lower back. At trial, he testified that on the day in question he detected a pelvic imbalance, an apparent "posterior inferior rotation of the right ilium." He then advised Ms. Jones of his intention to manipulate her pelvis. Rather than the sharp pain she described later, the doctor said she reported tenderness, which was to be expected due to the misalignment. He stated that he achieved some correction with four manipulations but utilized no other types of treatment due to the patient's proscription of low back manipulation.
According to the doctor, Ms. Jones reported no pain during the treatment and never requested that he stop. She did call his office several hours later reporting pain.
The Issues:
Ms. Jones' suit alleged that the doctor did not have her consent to treat in the lower back area and that his manipulating that area therefore constituted a battery.
The Holding:
In the Supreme Court's opinion, the facts Ms. Jones alleged simply did not constitute battery. The court noted "medical treatment is invariably performed in good faith for the patient's benefit and not for anti-social reasons."
The court noted that the treatment was not without any consent; that ordinarily "consent to treatment will be presumed in the absence of fraud or misrepresentation." Citing a Michigan case, the court observed that doctors are not "required to obtain express consent before each touch or test they perform; consent may be inferred from the patient's action of seeking treatment."
Whether Dr. Malloy's manipulation or "the packed bags of Mary Kay (cosmetic) wares carried by Ms. Jones in her job caused the symptom to flare ..." was an issue for the jury and, in the court's opinion, was determined adversely to Ms. Jones. Jones vs. Malloy, 412 N.W. 2d 837 (Neb. 1987).
What It Means to You:
In malpractice seminars, "Chiropractic Legal Update," speakers caution DCs that in the absence of consent or in the more likely event of revoked or withdrawn consent, a battery charge can stand up. Damage can be awarded and in some cases the offense can rise to the level of a criminal battery. This doctor was fortunate to avoid liability.
Certainly cases of actual battery are unusual, but their paucity does not relieve doctors of the duty to respond appropriately to patient hesitancy and concerns. That this case went as far as it did underscores the importance of explaining what is to be done and immediately suspending treatment for further discussion if the patient's continued consent is in doubt.
Louis Campbell, JD
C. Jacob Ladenheim, JD
Robert P. Sherman, JD
Louis Sportelli, DC
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