In a recent case, a woman filed suit against a hospital and her doctor for battery after undergoing a medical procedure. She alleged that she had not given her informed consent for having an intrauterine device (IUD) implanted. About a year after she had the IUD implanted, she found out that her IUD had not been approved by the Federal Drug Administration because of the location to which the device had been shipped.
She filed the complaint but failed to file a medical expert affidavit, as required by state laws. In this particular state, the law required that plaintiffs filing medical malpractice actions file an expert affidavit along with the complaint. However, the woman argued that her claim did not require her to file the expert affidavit because this was a battery claim rather than a medical malpractice claim. Ultimately, the state’s supreme court disagreed, holding that a battery claim against a medical provider based on a lack of informed consent also requires the filing of a medical expert affidavit.
The court held that even though the claim filed was a battery claim, it still had the same requirements of a general medical malpractice claim. Since cases involving the issue of informed consent generally consider the professional standard required in such cases, they are subject to the same requirements no matter which claim is alleged. There is a question of what the professional standard is in obtaining informed consent. As a result, a medical expert affidavit was required, stating that the expert supports the allegations in the claim.