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What is the difference between medical malpractice and battery in Virginia?


May 31, 2023 by Tom Roberts, Esq.

If the physician intentionally performs an additional procedure beyond the consent given by the patient is he liable for battery in Virginia? Yes. However, if he unintentionally, either by negligence or as an unforeseen complication, performs a procedure in a location different than targeted, it may be negligence rather than battery.

What is the tort of battery?

Battery protects two personal interests: “first, the interest in the physical integrity of the body, that it be free from harmful contacts; second, the purely dignitary interest in the body that it be free from offensive contact. The central core of battery is relatively straightforward: the defendant must respect the plaintiff’s wishes to avoid intentional bodily contact. A physician may perform an operation with great skill and nevertheless be liable for a battery if the patient did not consent. Mayr v. Osborne, 293 Va. 74, 81, 795 S.E.2d 731, 736 (2017)

What is the tort of negligence?

Negligence is the failure to use reasonable care which results in damages. In addition to providing compensation, the purpose of imposing tort liability for negligence is to encourage individuals to exercise reasonable care.

What is the difference between medical negligence and batery?

The Virginia Supreme Court explained, “Another important difference between battery and negligence is that “[b]attery in tort law is exclusively an intentional tort, so if defendant accidentally comes in contact with the plaintiff, that action would sound in negligence.” Intent in this context means “(a) that the actor engage[d] in volitional activity and (b) that he intend[ed] to violate the legally protected interest of another in his person.” Negligence, in contrast, consists of the “failure to exercise ordinary care.” Intentional conduct is not required. Rather, “heedlessness, inattention, [and] inadvertence” can be sufficient for liability in negligence. Mayr v. Osborne, 293 Va. 74, 81, 795 S.E.2d 731, 736 (2017)(citation omitted).

Impact of difference at trial

The difference in the trial proceedings between battery and negligence is also significant. In most medical malpractice cases involving negligence, an expert is required to provide evidence on issues that fall beyond the realm of common knowledge and experience of a lay jury, to establish (1) the appropriate standard of care, (2) a breach of the standard and (3) that the deviation proximately caused the damages. On the other hand, in battery cases it is generally held that expert medical testimony is not required to establish a standard of care or to show causation, because the the factual issue is whether the patient did or did not consent to the specific operation performed by the physician, and there is nothing unique about the doctor-patient relationship that warrants a rule that in all cases expert medical testimony is required to establish what was agreed to by the parties. Mayr v. Osborne, 293 Va. 74, 82, 795 S.E.2d 731, 736 (2017)

Informed Consent

So, when a physician performs a procedure an undisclosed inherent complications with a low probability occurs, there is no “intentional” deviation from the consent given when the doctor addresses the complication, although it may be a failure in the duty to disclose to the patient pertinent information — that is negligence.

Proving a Medical Battery

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.

Some Litigated Examples in Virginia

The Virginia Supreme Court stated in 1980 that “ in some circumstances, a physician can be liable for a battery, which we have also called a “technical” battery.” Pugsley v. Privette, 220 Va. 892, 899, 263 S.E.2d 69, 74 (1980). In Puglsey, the patient revoked the consent she initially gave demanding that a different surgeon perform the operation. In 2002, the Virginia Supreme Court again looked at a potential battery case and found that when the patient consented to a diskectomy at the C6-C7 level but that the physician additionally operated at the C7-T1 level, that was a factual issue for the jury to determine whether the surgeon “intentionally performed a cervical diskectomy at two levels of [the patient’s] spine, thus exceeding the scope of her consent. Washburn v Klara, 263 Va. 586, 592,561 S.E.2d 682, 686 (2002). Similarly, in a 1990 case, a patient that consented to an exploratory biopsy of her breast to determine whether a suspicious mass detected in her left breast was malignant, could sue and have the jury determine whether performing a partial mastectomy removing a quarter of her left breast exceeded the scope of the permission given. Woodbury v. Courtney, 239 Va. 651, 652-653, 391 S.E.2d 293, 294, 6 Va. Law Rep. 2226 (1990).  In a 2017 case the patent consented to a procedure in one part of the spine but the doctor performed the procedure on the adjoining level of the patient’s spine.
The court found that the claim sounded in negligence and not the intentional tort of battery. While no patient consents to the negligent performance of a procedure, every medical malpractice claim will not be transformed into a battery.  In Virginia, there is a statutory scheme for handling medical malpractice actions (Code § 8.01-581.20) and deviations from that scheme should be rare.  

Mayr v. Osborne
, 293 Va. 74, 79, 795 S.E.2d 731, 735 (2017)

Thomas H Roberts & Associates, PC
105 S 1st Street,
Richmond, VA 23219


The materials are prepared for information purposes only.  The materials are not legal advice.  You should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.


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