Duncan v. Scottsdale Med. Imaging, Ltd
In Duncan v. Scottsdale Med. Imaging, Ltd., 205 Ariz. 306, 70 P.3d 435 (2003), the Arizona Supreme Court clarified the distinction between "lack of consent" and "lack of informed consent." Id.13.
In so doing, the court adopted the reasoning of the California Supreme Court case Cobbs v. Grant, 8 Cal. 3d 229, 104 Cal. Rptr. 505, 502 P.2d 1 (Cal. 1972), which stated that "'the battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented.
When the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present.'" Id.11, quoting Cobbs, 502 P.2d at 8.
In choosing to classify a lack of informed consent cause of action under a negligence theory, the California court also relied on several public policy considerations:
(1) battery does not require expert testimony on community standards;
(2) punitive damages are available under battery;
(3) malpractice insurance may not cover intentional torts like battery. Cobbs, 502 P.2d at 8.
Based on this reasoning, the Arizona Supreme Court held that "claims involving lack of consent, i.e., the doctor's failure to operate within the limits of the patient's consent, may be brought as battery actions.
In contrast, true 'informed consent' claims, i.e., those involving the doctor's obligation to provide information, must be brought as negligence actions." Duncan, 205 Ariz. 306,13, 70 P.3d at 439.
In Duncan, the court further stated that consent can be ineffective if it was induced by "fraud or misrepresentation." Id.20.
It adopted the Restatement (Second) of Torts 892B(2) (1979), which states:
If the person consenting to the conduct of another is induced to consent by a substantial mistake concerning the nature of the invasion of his interests or the extent of the harm to be expected from it and the mistake is known to the other or is induced by the other's misrepresentation, the consent is not effective for the unexpected invasion or harm.