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.
Steve is the Managing Shareholder of Steven J. Klearman & Associates, a civil litigation law firm located in Reno, Nevada. He practices primarily in the areas of civil litigation and injury law, and has authored one of the definitive guides to Nevada civil law that is widely used by Nevada judges and attorneys, his book entitled Elements of Nevada Legal Theories.