The Arizona Court of Appeals Division One (“Arizona Appellate Court”) ruled in its Memorandum Decision filed on April 7, 2020 that the trial court had improperly granted summary judgment to the defendant breast surgeon for the Arizona Medical Malpractice plaintiff’s claim that the defendant committed battery when he implanted a larger Implant than was agreed upon during breast implant exchange surgery.

The Underlying Facts

The Arizona medical malpractice plaintiff is a breast cancer survivor who underwent a mastectomy in 2000. Between 2002 and 2014, the plaintiff underwent other surgeries to correct breast rippling and breast asymmetry. The defendant breast surgeon performed multiple procedures on the plaintiff during those years.

In January 2014, the plaintiff met with the defendant to discuss and finalize a surgery in which the defendant would replace her current right implant with another to correct ongoing rippling. Up to this point, the plaintiff’s implant had remained a size 700-cc. In her deposition, the plaintiff testified that the defendant was to replace her current implant with another of the same size.

The defendant’s medical notes, however, indicated the implant would be replaced with a smaller size 480-cc implant. During this visit, the plaintiff initialed each page and signed the final page of a fourteen-page consent form.

The surgery took place one week later during which the defendant determined a size 480-cc implant would not resolve the rippling problems. The defendant then attempted to place a size 530-cc implant, but determined that would not suffice either. He ultimately replaced the plaintiff’s existing 700-cc implant with a 775-cc implant.

The following month, the plaintiff developed an infection that the defendant treated with Cipro, an antibiotic. The defendant performed a debridement and replaced the 775-cc implant with a 640-cc implant. The plaintiff continued to experience post-operative issues. In April 2014, the plaintiff told the defendant that she wanted to do everything possible to avoid replacing the new implant. Nevertheless, in May 2014, the defendant removed it after determining it could not be saved.

The plaintiff’s Arizona medical malpractice lawsuit alleged that the defendant’s actions fell below the standard of care in several ways relative to the breast implant exchange procedure performed in January 2014, and that the defendant committed battery by increasing the size of the plaintiff’s implant. The trial judge granted the defendant’s motion for summary judgment, and the plaintiff appealed.

Arizona Appellate Court Decision

Battery

With regard to the plaintiff’s battery claim, the Arizona Appellate Court stated, “In Arizona, claims involving “lack of consent,” including where a doctor “fail[s] to operate within the limits of [a] patient’s consent,” “may be brought as battery actions.” Id. “[W]hen a patient gives limited or conditional consent, a health care provider has committed a battery if the evidence shows the provider acted with willful disregard of the consent given.” Id. at 311, ¶ 18. Whether a healthcare provider’s particular conduct is within the scope of a patient’s consent is “an issue for the trier of fact to determine.” Id. at ¶ 16 (citing Restatement (Second) of Torts § 892A(2)(b)). The relevant question here is not whether [the plaintiff] consented to the breast implant exchange surgery performed on January 27, 2014; instead, the pertinent issue is whether [the plaintiff] consented to receive a larger implant than she had before.” (emphasis added)

The Arizona Appellate Court held: “According to [the plaintiff], [the defendant] agreed that he would replace her then-current implant with the same size implant, and that there would be no increase in size. According to [the defendant’s] medical notes, he intended to replace the implant with a smaller size 480-cc. Either way, because we view disputed facts in the light most favorable to [the plaintiff], evidence supports her contention that she did not consent to an increase in implant size, creating a genuine issue of material fact as to whether [the defendant] committed battery. We therefore reverse the superior court’s grant of summary judgment on that claim. We make no determination as to the “scope” of [the plaintiff’s] consent, as that is an issue left for the trier of fact to determine.”

Source Mizell v. Leighton, No. 1 CA-CV 19-0044.

If you or a loved one may have been injured as a result of medical battery in Arizona or in another U.S. state, you should promptly find an Arizona medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical battery claim for you and represent you or your loved one in a medical battery case, if appropriate.

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