Mayr v. Osborne

OPINION BY JUSTICE STEPHEN R. McCULLOUGH

The surgeon in this case mistakenly fused the wrong level on Mr. Osborne's spine. Instead of operating on level C5-C6, the surgeon operated on level C6-C7. The issue we must resolve is whether a plaintiff in such a situation can proceed on a theory of battery or whether the law confines a plaintiff to recovery under a negligence theory. 1 We conclude that the surgeon's actions did not constitute a battery. Accordingly, we reverse the judgment of the trial court.

BACKGROUND

In an effort to relieve back pain, Dr. Matthew T. Mayr performed a posterior…