Virginia Supreme Court rules battery claim doesn't hold in wrong-level spinal fusion — 5 insights

Written by Megan Wood | February 22, 2017 | Print  |

Virginia Supreme Court's Justice Stephen R. McCullough wrote an opinion that reversed a prior trial court decision on a botched spine surgery, as reported by Legal Newsline and published by Forbes.

Here are the details:


1. The wife of a deceased patient filed a battery lawsuit against spine surgeon Matthew T. Mayr, MD, who allegedly fused the wrong level during a surgery to relieve back pain. She claimed her husband never gave consent for a surgery on level C6-C7, only C5-C6. Dr. Mayr argued he disclosed wrong-level fusion as a risk of the spine surgery to the patient.


2. Dr. Mayr realized his error when viewing X-rays after the surgery. He notified the patient and performed a corrective surgery, fusing the correct level. The patient later died from causes unrelated to the spine surgery.


3. In the initial trial, heard by Henrico County Circuit Court's Judge Richard Wallerstein, the court outlined a distinction between tort of battery and tort of negligence, noting battery involves "any unwanted bodily contact or the consent of the patient," according to the Forbes report. The tort of battery also considers intent.


4. Justice McCullough wrote the opinion on Feb. 2, 2017, which found the wife of a late patient could not charge a spine surgeon with battery following her husband's death. The opinion states: "Dr. Mayr did not perform a substantially different or additional procedure which differed significantly in scope relative to the procedure for which the patient provided consent. The evidence unequivocally establishes that Dr. Mayr did not intend any unpermitted contact and the plaintiff's battery claim thus fails as a matter of law," as reported by Law360.

5. Ultimately, this ruling presents a new precedent in Virginia that medical malpractice claims may only prove actionable in terms of negligence, Dr. Mayr's attorney said.


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