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According to a 2013 article in the Journal of Patient Safety, preventable medical errors may now be the third leading cause of death in the United States.  These errors include so-called “never-events,” such as wrong site and wrong patient errors. For example, if a patient is scheduled to have a surgery performed on their right shoulder and the physician performed a surgery on the patient’s left shoulder,  this situation would be a “never-event” – meaning it should never happen. The medical profession has widely adopted basic safety procedures to prevent these types of mistakes. However, wrong patient and wrong site events continue to happen and, when they do, they give rise to potential medical battery claims.

Medical battery is a unique intentional tort because it does not require proof of hostile intent. Rather, the focus of a claim for medical battery is the lack of consent to the medical procedure performed. A common setting for a medical battery is where the patient consents to care, but the physician deviates from the consent and performs an additional procedure or a different procedure. Under Illinois law, a physician must obtain consent from a patient before performing any medical procedure. This is the rule in Illinois, with very few exceptions. One such exception would be if the physician is performing the medical procedure in an emergency setting.  Medical battery can also occur outside of a hospital setting, including if a patient is enrolled in a medical study without their consent or prescribed medication without their consent. In almost all circumstances, a patient should be aware of and consent to any potential procedures that may be performed on them prior to undergoing those procedures.

You should not let a “never event” cause harm to you or your family.  If a doctor has performed a medical procedure on you or a loved one without consent, contacting an attorney may be in your best interest.

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