SW Legal studies in Business

Patient Failed to Demonstrate Malpractice; No Medical Battery Cause of Action
Description

South Carolina high court held that a patient who claimed to have been injured during surgery could not sue for medical battery because the state does not recognize that cause of action. A suit for malpractice requires expert testimony that shows the physician deviated from competent practice in a medical matter.

Topic Torts
Key Words

Medical Battery; Malpractice

C A S E   S U M M A R Y
Facts

Dr. Yampolsky, a periodontist, recommended that Linog receive osseous gum surgery, an invasive dental procedure that would take about four hours. Because she was afraid of dentists, Linog requested general anesthetic, which was administered by Dr. Bradham, an anesthesiologist. The anesthetic was not fully successful, as Linog kept moving during the surgery and Bradham did not want to increase the dosage further. The surgery was terminated before Yampolsky could get much work done. Linog sued both doctors for malpractice and medical battery, contending she suffered a herniated disc during the procedure. The trial court dismissed the suit; she appealed.

Decision

Affirmed. An injured patient may bring a medical malpractice claim against a physician where the physician’s negligence in rendering medical care proximately causes the patient’s injury. The patient must prove, through expert testimony, that the generally recognized and accepted practices and procedures that would be followed by average, competent practitioners in the physician’s field of medicine, under similar circumstances, was violated. That was not shown. Further, South Carolina does not recognize an independent cause of action for medical battery. A patient may bring a battery claim against a physician where the physician commits an offensive touching outside of the medical scope. That was not claimed as all matters relevant to the action were part of a medical procedure.

Citation

Linog v. Yampolsky, 656 S.E.2d 355 (Sup. Ct., S.C., 2008)

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