PHYSICIAN BATTERY
C.J.I. 15:7-9 (2003)
15:7. Operation Or Treatment Without Consent Of Patient
Unless the patient consents, any (operation on) (or) (procedure involving contact with) a patient's body is a battery, even when appropriate skill is used in the (operation) (procedure) (or) (treatment).
(If a patient consents to a certain [operation] [procedure] [or] [treatment], and the physician performs a different [operation] [procedure] [or] [treatment] without the patient's consent, the physician commits a battery and is responsible to the patient for the damages, if any, caused by the [operation] [procedure] [or] [treatment]).
15:8. Affirmative Defense - Consent, Express Or Implied
The defendant, (name), is not legally responsible to the plaintiff, (name), on (his) (her) claim of battery if the affirmative defense of consent is proved. This defense is proved if you find the plaintiff gave express or implied consent to the (operation) (treatment) that was performed.
Express consent may be given orally or in writing. Implied consent means words or conduct of the plaintiff that led the defendant reasonably to believe that the plaintiff was consenting to the (operation) (treatment).
15:9 Affirmative Defense - Implied Consent Based On Emergency
The defendant, (name), is not legally responsible to the plaintiff, (name), on (his) (her) claim of battery if the affirmative defense of implied consent based on an emergency is proved. This defense is proved if you find all of the following:
1. At the time the defendant treated the plaintiff, the defendant reasonably believed the plaintiff's life or health was in such danger that to delay (surgery) (treatment) would further endanger the plaintiff's life or health;
2. Under the same or similar circumstances, a reasonably careful physician would have believed the same thing; and
3. The plaintiff was in a mental or physical condition that prevented (him) (her) from being able to indicate (his) (her) consent or lack of consent.
Current as of 2004; Legislative Citations Deleted