Medical malpractice; Failure to administer a local anesthetic before beginning a procedure; Assault & battery; Scope of consent; Franklyn v Peabody; Ordinary negligence; Actual injury requirement; Henry v Dow Chem Co

The court held that the trial court properly dismissed plaintiffs’ assault-and-battery and negligence claims because the vasectomy that the one plaintiff consented to was the procedure performed, the use of sodium bicarbonate instead of lidocaine was an inadvertent mistake rather than an intentional nonconsensual touching, and he failed to establish a cognizable physical injury for negligence purposes. Plaintiff underwent a vasectomy that “was undisputedly initiated without having first administered a local anesthetic” because the medical assistant mistakenly filled the syringe with sodium bicarbonate rather than lidocaine. But once defendant-doctor realized the mistake, he “‘filled a syringe with 1% Xylocaine, re-injected the area,’” and proceeded, as plaintiff “‘was now properly numb.’” On appeal, the court held that the battery theory failed because, unlike Franklyn, plaintiff “was not subjected to an operation on a different anatomical site or of a fundamentally distinct nature,” as “he consented to a vasectomy, and that procedure was performed.” There was also “no evidence of intent to inflict the complained-of contact.” The court emphasized that “the undisputed evidence establishes that the error was one of negligence, not intent.” There was no evidence defendants “intended to effectuate nonconsensual contact” by starting the operation before administering a local anesthetic. The court next held that the negligence claim failed because Michigan requires proof of an actual physical injury, and plaintiff’s alleged pain, mental distress, and PTSD were “properly characterized as ‘damages’ rather than evidence of a cognizable personal injury from which such damages might arise.” Citing Henry, the court stressed that “‘common law recognizes emotional distress as the basis for a negligence action only when a plaintiff can also establish physical manifestations of that distress,’” and plaintiff therefore “failed to establish the necessary element of harm, or actual personal injury.” Affirmed.