Using cadaver bone during surgery: Sued for battery

Make sure your informed consent forms are clear enough:

The informed consent form described the surgery as a “lumbar diskectomy and fusion with iliac crest bone graft + ‘Steffe plates.’ ” During the surgery the physicians removed bone fragments and grafted the plaintiff’s own bone to his spine. They also used cadaver bone as dowels for the bone graft. The grafted bone didn’t fuse and the patient’s workers’ compensation carrier referred him to another orthopedist, who informed him that cadaver bone had been used in the surgery.

In his lawsuit, the patient complained that the surgeons’ use of cadaver bone constituted both a breach of contract and a battery. The court agreed. Even if the procedure itself were authorized, it said, if the patient placed conditions on his consent and those conditions weren’t fulfilled, the surgery is a battery.

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