Surgery That Exceeded the Scope of the Patient's Consent

Attorney Answer

If the surgeon removed both fallopian tubes when you consented to one, Michigan recognizes two different claims — malpractice and medical battery — but the operative report and the consent form you signed will decide this, and both claims carry the same two-year deadline.

As a malpractice claim, MCL 600.2912a places on you the burden of proving the applicable standard of care, a breach of it, and proximate causation, ordinarily through expert testimony. The claim then carries Michigan's malpractice-specific procedural requirements — a written notice of intent served on the provider before suit, an affidavit of merit filed with the complaint, and rules about who qualifies as an expert. Those requirements take months to satisfy and have to fit inside the limitations period.

As a medical battery claim, the theory is that the surgery went beyond what you agreed to. In Banks v. Wittenberg, 82 Mich. App. 274 (1978), the Court of Appeals stated the rule: "if consent has been given but the scope of the consent is exceeded, there has been an assault and battery." Two cautions about leaning on that case. It is an older decision and, under Michigan's court rules, persuasive rather than binding on later panels. And the patient there lost: the court also held that the necessary consent may be express or implied, and that implied consent could be inferred from the patient's own conduct in presenting for and submitting to the treatment. That is the defense to expect — that what you signed, or the circumstances of the surgery, covered what was done.

Recasting the claim as battery does not buy you time. MCL 600.5805(3) sets a two-year period for an action charging assault, battery, or false imprisonment — the same two years that applies to malpractice. The choice of theory changes the pre-suit requirements and the proofs you need, not the deadline.

The injury here is not abstract. Removal of both fallopian tubes ends the ability to conceive naturally, and that permanence is central both to the claim and to the medical follow-up you should be getting now. The heart of the case is the gap between what you were told afterward and what the records actually show.

What you can do

1. Request your complete surgical records in writing today: the signed consent form, the operative report, the pathology report, the anesthesia record, and the post-operative notes and discharge instructions. 2. Read the consent form word for word. Note exactly which procedure it authorizes, and whether it contains any broad clause about additional or incidental procedures — that clause is what the hospital will rely on. 3. Compare the operative report and the pathology report against what you were told. The pathology report states what tissue was actually received and examined. 4. Write down who told you that only one tube was removed, when, and in what setting — office visit, discharge, phone call. 5. Ask your current physician to document your present reproductive status and any treatment or counseling you now need. 6. Take everything to a Michigan medical malpractice lawyer promptly. The notice of intent and expert affidavit take months to prepare and the two-year clock does not pause for them. 7. Do not sign anything from the hospital's risk management or patient relations office without a lawyer reading it first.

⏱ Time limits apply. MCL 600.5805(3) gives two years for a claim charging assault or battery, and a claim pled as malpractice carries the same two-year period plus pre-suit notice and affidavit requirements that must fit inside it. When your two years began depends on your specific facts — have a Michigan lawyer confirm the date rather than calculating it yourself.