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Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

Smith v. Welch, 265 Kan. 868, 967 P.2d 727 (1998).

This case addresses the following issue:

Can a doctor be liable for battery when the patient has consented to being examined?

The tort of battery is normally thought of as violent striking, such as punches, kicks, and even stabbings. Id. at 875. However, a battery can also include unwelcome touches that don’t resulting in physical harm, such as groping or other sexual touching. Id. at 876. Of course, a battery can’t happen when the party being touched has agreed, or consented, to the touching. Id. This case dealt with the contours of “implied consent” in the context of a physical examination. Id. at 871. Ultimately, the court found that when a physician exceeds a patient’s implied consent, the physician can be liable for battery. Id. at 881.

Plaintiff had suffered injuries in a car accident, specifically, injuries to her neck and back. Id. at 869. Plaintiff agreed to submit to an independent medical examination by a doctor to ascertain her injuries from the accident. Id. The other driver selects Defendant to perform the examination. Id. Once at the examination, Defendant begins fondling Plaintiff’s breasts and genitals, over Plaintiff’s protest. Id. at 871. Plaintiff filed suit against Defendant for battery. Id. Defendant argues that there can be no battery, because Plaintiff agreed to submit to the examination. Id.

The court begins by noting that consent is a complete defense to battery. Id. at 875. There are two types of consent: express and implied. Id. Express consent cases are easier cases, because the plaintiff directly states what they are consenting to. Id. Implied consent cases are more difficult, because both the act of consenting and the limits of what is agreed to are not directly stated. Id. In either case, the scope of the consent is extremely important—anything beyond what a plaintiff has agreed to is a battery. Id. at 876.

In this case, there was both express and implied consent. Id. at 878. Plaintiff expressly consented to the examination, pursuant to her personal injury case. Id. However, Plaintiff had not set out precisely what the examination would entail. Id. Despite this, the court easily found that a breast examination and pelvic examination was clearly outside the scope of a proper examination based on neck and back injuries. Id. at 879. But Defendant went even further, fondling Plaintiff. Id. These actions are without medical purpose, and thus, clearly outside of any consent concerning a proper medical examination. Id. Thus, Plaintiff had a valid claim for battery against Defendant. Id.

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