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A person who intentionally causes harmful or offensive physical contact to another person can be held liable for battery. Except in emergency situations, a defendant in a malpractice action for battery can be held liable if the patient did not consent to the physical contact required to provide medical treatment. An emergency situation arises where the patient is not able to give consent (for example, where the patient is unconscious as a result of an accident) and treatment is necessary to save the life or preserve the health of the patient.
Consent may be expressed orally or in writing, or may be implied by the patient’s conduct (for example, when the patient holds out an arm so that medication can be given intravenously). If the patient lacks capacity to give consent, a person with legal authority may give consent on behalf of the patient (for example, a parent may give consent for a child who is not capable of appreciating the nature and purpose of the treatment, and the consequences of giving or refusing consent).
Consent is invalid if it is not given voluntarily (for example, where the consent is obtained by coercion, misrepresentation or fraud).
In a malpractice action for battery, the defendant has the onus of proving that valid consent was obtained. When valid consent has not been obtained, the defendant can be held liable for injury to the patient resulting from the treatment, even if the treatment was provided in accordance with the standard of care.
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