A battery in civil law is an intentional and offensive touching of a person who has not consented to the touching. A physician who performs a medical procedure without the patient’s consent commits a battery irrespective of the skill or care used. This is what the Nevada Supreme Court recently stated in Humboldt Gen. Hosp. v. Sixth Jud. Dist. Ct., 132 Nev., Advance Opinion 53, filed on July 28th. Nevada attorneys who practice in medical malpractice law have known for years now that it’s perilous to file a medical malpractice complaint without the legally required expert medical affidavit. But the Humboldt Gen. case carves out an exception. There, the Court held that if there is a complete lack of consent, a party may proceed with a battery claim without an expert affidavit. Attorneys in such cases should allege a complete lack of consent.
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