                                IN THE
            ARIZONA COURT OF APPEALS
                             DIVISION ONE


      CHRISTINA CARTER, a married woman, Plaintiff/Appellant,

                                   v.

    THE PAIN CENTER OF ARIZONA, P.C., an Arizona professional
corporation; DAVID K. TOWNS, M.D. and GABRIELA TOWNS, husband
                   and wife, Defendants/Appellees.

                          No. 1 CA-CV 14-0672
                            FILED 5-10-2016


          Appeal from the Superior Court in Maricopa County
                         No. CV2011-054196
           The Honorable Thomas L. LeClaire, Judge, Retired

                    REVERSED AND REMANDED


                               COUNSEL

Law Office of Craig Stephan, Scottsdale
By Craig A. Stephan
Counsel for Plaintiff/Appellant

Kent & Wittekind, PC, Phoenix
By Richard A. Kent, Scott A. Ambrose
Co-Counsel for Defendants/Appellees

Jones Skelton & Hochuli, PLC, Phoenix
By Eileen Dennis GilBride
Co-Counsel for Defendants/Appellees
                     CARTER v. PAIN CENTER, et al.
                         Opinion of the Court



                                OPINION

Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in
which Judge Kent E. Cattani and Judge John C. Gemmill joined.


J O H N S E N, Judge:

¶1            Although a traditional civil battery claim requires proof the
defendant intended to commit harm or offensive contact, a plaintiff suing
for medical battery need not prove the defendant acted with such intent. In
this case, a patient alleged a physician committed medical battery by
disregarding her conditional consent to a medical procedure. A patient
who brings such a claim must prove the defendant willfully disregarded
the scope of the patient's consent. Because the superior court in this case
instructed the jury based on traditional common-law battery rather than on
medical battery, we reverse the defense judgment and remand for a new
trial.

             FACTS AND PROCEDURAL BACKGROUND

¶2             After a fall, Christina Carter met with Dr. David Towns of The
Pain Center of Arizona, who recommended a sacrococcygeal ligament
injection for her pain. When Carter expressed anxiety about the injection,
Towns offered to sedate her for the procedure. In the notes he made after
the appointment, Towns confirmed that he would do the procedure with
sedation. Twelve days later, Carter returned for the injection. Before
undergoing the procedure, Carter signed a consent form stating:

      I, Christina Carter . . . hereby authorize and consent to the
      treatment as ordered by Dr. David Towns, and any other
      physician or medical personnel who may be directly involved
      in the course of my treatment. I hereby authorize and consent
      to the following procedure described to be performed:
      Sacrococcygeal Ligament Injection under Fluoroscopy with
      IV Sedation.

Towns then proceeded to administer the injection without first sedating
Carter.

¶3           Some time later, Carter sued Pain Center and Towns, alleging
battery and false imprisonment based on the defendants’ failure to sedate


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                     CARTER v. PAIN CENTER, et al.
                         Opinion of the Court

her prior to the injection. Before trial, Carter requested the following jury
instruction:

      Christina Carter claims that Dr. David K. Towns committed a
      battery against her. On this claim, Christina Carter must
      prove:

      1. Christina Carter's consent to the sacrococcygeal ligament
      injection was conditioned upon receipt of IV sedation; and

      2. Dr. David K. Towns performed the sacrococcygeal
      ligament injection in willful disregard of the conditional
      consent given by Christina Carter; and

      3. Christina Carter's damages.

¶4            Defendants objected to Carter's proposed instruction and
asked the superior court to give the following traditional civil battery
instruction found in the Revised Arizona Jury Instructions ("RAJI") as
Intentional Torts 2:

      Christina Carter claims that The Pain Center of Arizona, PC
      and Dr. David K. Towns committed a battery against her. On
      this claim, Christina Carter must prove:

      1. The Pain Center of Arizona, P.C., and Dr. David K. Towns
      intended:

             a. To cause harm or offensive contact with Christina
      Carter.

      2. The Pain Center of Arizona, P.C., and Dr. David K. Towns
      caused harmful or offensive contact with Christina Carter.

      3. Christina Carter's damages.

      A contact is offensive if it would offend a reasonable person.

Carter objected to the defendants' proposed RAJI instruction, arguing her
proposed instruction more accurately identified the elements of a medical
battery. The court overruled her objection and gave the RAJI battery
instruction proposed by the defendants.

¶5          Following a five-day trial, the jury returned a defense verdict.
Carter unsuccessfully moved for a new trial, arguing the court erred by


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                     CARTER v. PAIN CENTER, et al.
                         Opinion of the Court

refusing to give her requested jury instruction. Carter timely appeals. We
have jurisdiction pursuant to Arizona Revised Statutes section 12-
2101(A)(1), (5)(a) (2016).1

                               DISCUSSION

¶6              Carter argues the court erred by giving the RAJI battery
instruction because, as applied, that instruction turned on whether the
defendants intended to harm her or cause an "offensive contact." She
contends the issue in a medical battery, instead, is whether the defendant
willfully performed an unconsented-to procedure. Whether a jury
instruction correctly states the law is a matter of law that we review de novo.
A Tumbling–T Ranches v. Flood Control Dist. of Maricopa County, 222 Ariz. 515,
533, ¶ 50 (App. 2009). We review jury instructions as a whole to determine
whether the jury was properly guided in its deliberations. Pima County v.
Gonzalez, 193 Ariz. 18, 20, ¶ 7 (App. 1998). We will reverse only if an
erroneous instruction prejudiced the appellant's rights. Am. Pepper Supply
Co. v. Fed. Ins. Co., 208 Ariz. 307, 309, ¶ 7 (2004).

¶7             A medical battery occurs when a physician performs a
procedure without the patient's consent. See, e.g., Duncan v. Scottsdale
Medical Imaging, Ltd., 205 Ariz. 306, 309, ¶ 9 (2003) ("The law is well
established that a health care provider commits a common law battery on a
patient if a medical procedure is performed without the patient's consent.");
Saxena v. Goffney, 71 Cal. Rptr. 3d 469, 475 (App. 2008); Devitre v. Orthopedic
Ctr. of St. Louis, L.L.C., 349 S.W.3d 327, 334 (Mo. 2011); Howard v. Univ. of
Med. & Dentistry of New Jersey, 800 A.2d 73, 80 (N.J. 2002) (medical battery
"is reserved for those instances where either the patient consents to one type
of operation but the physician performs a substantially different one from
that for which authorization was obtained, or where no consent is
obtained"); Blanchard v. Kellum, 975 S.W.2d 522, 524 (Tenn. 1998).

¶8             Likewise, medical battery also occurs when a physician
performs a procedure in willful disregard of a patient's limited or
conditional consent. See Duncan, 205 Ariz. at 310-11, ¶¶ 15-18. The patient
in Duncan alleged she had consented to be sedated with certain drugs but
not others, and that doctors had injected her with a drug to which she had
not consented. Id. at 310-11, ¶ 15. The court explained that a medical
battery claim is based on the "doctor's failure to operate within the limits of



1     Absent material revision after the relevant date, we cite a statute's
current version.


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                     CARTER v. PAIN CENTER, et al.
                         Opinion of the Court

the patient's consent." Id. at 310, ¶ 13. Citing Restatement (Second) of Torts
(1965), Duncan explained the significance of consent in such a claim:

       The Restatement requires that consent, to be effective, must
       be "to the particular conduct, or substantially the same
       conduct."    Restatement § 892A(2)(b).       The terms and
       reasonable implications of the consent given determine the
       scope of the particular conduct covered. Restatement § 892A
       cmt. d. The "scope" of consent is an issue for the trier of fact
       to determine.

Id. at 311, ¶ 16. The court then concluded: "We hold that when a patient
gives limited or conditional consent, a health care provider has committed
a battery if the evidence shows the provider acted with willful disregard of
the consent given." Id. at ¶ 18.

¶9             Defendants in this case argue the RAJI battery instruction is
appropriate when a medical battery is based on a total lack of consent, and
contend Carter waived the issue by failing to make clear to the superior
court that her claim was based on conditional consent. The RAJI instruction
the court gave, however, required Carter to prove that the defendants
"intended . . . [t]o cause [Carter] harm or offensive contact." Contrary to
defendants' assertion, a patient who alleges medical battery based on a total
lack of consent (for example, the patient consented to one procedure and
another was performed) need not prove that the physician intended to
cause harm or offensive contact. Under Duncan and related cases, such a
patient need only prove she was damaged when the physician performed
a procedure to which she did not consent. Id. at 309, ¶ 9; Hales v. Pittman,
118 Ariz. 305, 310 (1978). The instruction Carter proposed was true to the
holding of Duncan; it would have required her to prove that her consent to
the pain treatment was conditioned upon receiving sedation and that
Towns administered the treatment "in willful disregard of the conditional
consent." See Duncan, 205 Ariz. at 311, ¶ 18.2

¶10           Citing Hales, defendants argue that even though the
instruction the court gave did not address consent, it was Carter's
obligation, not the court's, to explain to the jury in closing how consent
applied to her claim. But consent is not, as defendants contend, a mere
"refinement" to the required intent to harm or offensive contact in the RAJI


2     Further, contrary to defendants' assertion, Carter's complaint and
her proposed jury instruction both made clear that her claim was that the
consent she gave to the injection was conditioned on her receiving sedation.


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                     CARTER v. PAIN CENTER, et al.
                         Opinion of the Court

instruction. As Duncan made clear, consent is the fulcrum on which a
medical battery claim such as Carter's turns. 205 Ariz. at 311, ¶ 18. Indeed,
Hales held that the jury instructions given there were proper because they
adequately addressed whether the procedure was performed "without the
patient's consent." 118 Ariz. at 310-11; see also Cathemer v. Hunter, 27 Ariz.
App. 780, 785 (1976) (jury may determine whether medical procedure fell
within scope of patient's consent).

¶11           Defendants also argue Carter's counsel cured any error when
he explained to the jury in closing argument how the instruction the court
gave might be construed to impose liability in the absence of intent to harm.
Defendants' contention is belied by their own counsel's vigorous closing
argument to the contrary: "[Battery] requires that Dr. Towns had an intent
to harm. That is what your jury instruction says, and don't let any argument
from any attorney allow you to change what the jury instruction actually
says. It's intent to harm." Defendants’ counsel reiterated the "intent to
harm" refrain several more times during closing. This plainly is not a
situation in which counsel’s closing argument cured instructional error.
Moreover, closing arguments "generally carry less weight with a jury than
do instructions from the court." Boyde v. California, 494 U.S. 370, 384 (1990).
This is particularly true when, as here, the parties' lawyers argued
conflicting versions of the law and, rather than properly instruct the jury on
which was correct, the court instead gave an instruction that permitted the
incorrect argument.

¶12             Defendants further argue that even if the battery instruction
was error, Carter cannot show prejudice. See Am. Pepper Supply, 208 Ariz.
at 309, ¶ 7 ("To warrant reversal, the jury instruction must have been not
only erroneous, but 'prejudicial to the substantial rights of the appealing
party.'") (citations omitted). Defendants assert the jury could have found in
their favor because it concluded Carter consented to the injection without
sedation or that she did not prove damages. We will not engage in such
speculation. Carter objected to the instruction given and, on this record, if
the jury had been properly instructed, it could have found that Carter's
consent to the injection was conditioned on her receiving sedation and that
defendants willfully disregarded the limited scope of her consent. See
Melancon v. USAA Cas. Ins. Co., 174 Ariz. 344, 347 (App. 1992) ("A jury
verdict cannot stand if the instructions given create substantial doubt as to
whether or not the jury was properly guided in its deliberations.").

¶13           Defendants also contend Carter had a duty to request jury
interrogatories from which, in the event of a defense verdict, it might be
ascertained whether the jury found against her based on liability or on


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                     CARTER v. PAIN CENTER, et al.
                         Opinion of the Court

damages. Not so. When a party has requested a jury instruction that is
supported by the facts and correctly states the law, but the court declines to
give the instruction and instead gives an erroneous instruction, there is no
requirement that the aggrieved party request special interrogatories to
prove prejudice.

                              CONCLUSION

¶14         For the reasons stated above, we reverse the defense
judgment on Carter's claim for medical battery and remand for a new trial.3




                                   :ama




3       Carter does not argue on appeal that the defense verdict on her claim
for false imprisonment should be reversed.


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