## Facts

- A lump was found in Irene Hernandez’s left breast; imaging reported it as highly suspicious and recommended an excisional biopsy.
- Hernandez was referred to surgeon Anton Schittek, M.D., who proposed a frozen-section biopsy during surgery.
- The operative plan discussed with Hernandez was conditional: if frozen section showed cancer, Schittek would perform a quadrantectomy (removal of the upper outer quarter of the breast) and an axillary node dissection; if no cancer was found, he would excise only the lump.
- Schittek confirmed there was no discussion about what would occur if the frozen-section result was inconclusive.
- On February 8, 1993, Hernandez signed a hospital consent form authorizing “Left Breast Biopsy, Possible Quadrantectomy and axillary node dissection” and “such additional operations as are considered therapeutically necessary on the basis of findings during the course of said operation.”
- Hernandez understood the quadrantectomy would be performed only if cancer was found.
- During surgery, Schittek removed tissue fragments for frozen-section examination; the pathologist could not reach a conclusive opinion.
- Despite the inconclusive frozen-section report, Schittek proceeded with the quadrantectomy and node dissection.
- Later pathology showed the lump was benign; Hernandez alleged disfigurement and sued, asserting malpractice and civil battery based on exceeding the scope of her consent.
- A jury returned a verdict for Schittek; the trial court denied Hernandez’s posttrial motion.

## Issues

1. Whether the evidence supported submitting a civil battery theory to the jury where the patient’s consent to a quadrantectomy was allegedly conditioned on a cancer finding.
2. Whether the trial court erred by refusing or failing to give jury instructions accurately stating medical civil battery based on exceeding the scope of consent.
3. Whether the consent form’s general language permitting “therapeutically necessary” additional operations barred a battery claim as a matter of law.

## Decision

- The appellate court reversed the judgment entered on the defense verdict and remanded for a new trial.
- The court held that the trial court mishandled the civil battery component of the case, including by failing to ensure proper jury instructions.
- The court concluded the evidence could support a finding that Hernandez consented to quadrantectomy only if cancer was found, and that proceeding after an inconclusive frozen section could exceed that consent.
- The instructional error was prejudicial because it risked forcing the jury to evaluate the claim solely under negligence standards rather than whether an unauthorized procedure occurred.

## Legal Principles

- In the medical context, civil battery may be established when a physician performs a procedure without consent or beyond the scope or conditions of the consent given.
- A conditional consent (authorizing a procedure only if a specified condition occurs) can limit the scope of permitted touching; performing the procedure when the condition is not satisfied can support battery liability.
- When evidence supports a battery theory distinct from negligent failure to disclose risks, the jury must be instructed on the correct battery standard.
- Boilerplate consent language authorizing “therapeutically necessary” additional operations does not automatically expand consent to cover a materially more extensive procedure where the relevant contingency was not clearly addressed.

## Conclusion

The appellate court ordered a new trial because the record permitted a finding that the surgeon exceeded the patient’s conditional consent, and the jury was not properly instructed on civil battery as a distinct theory of liability.


Hernandez v. Schittek, 713 N.E.2d 203 (Ill. App. Ct. 1999)