Mrs. Dobbs Battery

Re: Liability for battery

Dear Mr. Benson:

I have examined your liability for battery in regards to your performance of Ms. Dobbs’ complete hysterectomy. I know that this has been a difficult time for you, but after reviewing the facts of your case, it appears that a well structured and prepared defense by our team of attorneys will be essential to persuade the court that such a surgery was absolutely necessary. I hope to relieve some of your anxiety by informing you of the strongest arguments that can be made in the defense against this claim.

Before I summarize your arguments, please note that my opinion is based on the following facts which might change if others become known. I would therefore appreciate it if you read the following account for accuracy and completeness and report any mistakes or omissions to me immediately.

In 2001, Cynthia Dobbs surgically removed a large fibroid tumor of the uterus which grew back by late 2007. In November of 2007, Cynthia contacted you in hopes to remove the tumor via laser surgery and save her uterus. She expressed that she only wanted a hysterectomy if it was absolutely necessary. On December 16, 2007, she visited your office in which a complete examination and ultrasound was performed. The results suggested that the tumor was very large and you expressed to Cynthia that if the tumor had engulfed the uterus, ovaries, and fallopian tubes that you could not remove it without a complete hysterectomy. Cynthia, in the presence of your medical assistant Susan Jones, then gave you permission to remove the tumor by performing a complete hysterectomy if necessary.

At the time you were contacted by Cynthia, you were devoting half of your work to reproductive research and were in the process of a major research project involving human eggs. It was at this time that you decided that if a complete hysterectomy was required you would keep Cynthia’s eggs for research. You did not express this intent to Cynthia.

On December 20, 2007 you performed surgery on Cynthia and discovered that the tumor was massive (large enough to simulate a seven month pregnancy) and parasitic. You determined that it could not be removed without a complete hysterectomy. You completed a successful hysterectomy and used Cynthia’s eggs for clinical research in which you later published in the journal Science and were awarded a $300,000 grant to further research.

Expert testimony conflicts to whether the tumor could be removed without performing a complete hysterectomy. Cynthia’s expert, Dr. Schmidt believes that it could have been removed without the hysterectomy, despite seeing actual photographs of the tumor. Our firm’s experts all agree that the tumor had engulfed the uterus, ovaries, and fallopian tubes, thus determining that a complete hysterectomy was absolutely necessary.

You have asked whether you will be found liable for battery as a result of the complete hysterectomy of Cynthia Dobbs. California courts have defined battery as the violation of another individual’s interest in freedom from intentional unlawful, harmful or offensive unconsented contacts with his or her person. The outcome of your case will thus depend upon whether Cynthia provided the requisite consent to perform this surgery, and whether such consent, if provided, was vitiated in any manner. The facts and expert testimony appear to support the conclusion that Cynthia consented to the removal of her reproductive organs, and such consent was not vitiated by the undisclosed intent to use her eggs for research after removal.

The lack of consent to the particular contact is an essential element of battery. It is not a disputed fact that Cynthia consented to the complete hysterectomy; however, we must determine whether her consent was vitiated. A recent California Supreme Court case has held that to vitiate consent the mistake must extend to the “essential character of the act itself”, or that which makes it harmful or offensive, rather than to some collateral matter which merely operates as an inducement. It is admitted that you were working on a major reproductive research project at the time of Cynthia’s complications; however, there is no conclusive evidence that your intention for using Cynthia’s eggs for research was an ulterior

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