Withdrawing Consent During Surgery: Battery or Malpractice in Michigan
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Reviewed & verified by A. Jason Velez, Esq.*
Managing Attorney, 1LAW · Last reviewed January 1, 2026
Legal Inquiry
Consumer Legal Issue
Medical malpractice/medical assault and battery. Not being sedated enough, having a fight/flight response during surgery and tell them to stop and instead being pinned down until they were finished. Do I have a case?
Attorney Answer
You may have a real claim, but it comes in two forms — medical battery and malpractice — and the choice between them changes what you must do before filing without buying you extra time.
Consent is not permanent. If you revoked it mid-procedure and the team continued, that can be framed as intentional medical battery. It can also be framed as malpractice: that the sedation dosing and monitoring fell below the standard of care.
Pled as malpractice, MCL 600.2912b requires written notice of intent to sue served on each intended defendant at least 182 days before the complaint is filed. That is not a formality — filing without it can end the case. A malpractice complaint must also be supported by a sworn affidavit from a qualified expert, so you need a physician reviewer lined up well in advance.
Pled as intentional battery — you said stop, you were held down, the procedure continued — MCL 600.5805(3) sets a two-year period for an action charging assault, battery, or false imprisonment. Read that carefully before assuming battery is the easier route: two years is the same length as the malpractice period. The battery label changes the pre-suit steps and the proofs, not the clock.
What you can do
1. Write a dated, detailed account today — what you said, who was present, who restrained you, how long it lasted. 2. Request your records in writing: anesthesia record, operative report, nursing and circulator notes, and the medication log showing every drug, dose and time. The anesthesia record is what shows whether you were under-dosed. 3. Ask for the names and roles of everyone in the room. 4. Get evaluated for the psychological aftermath and have the clinician document it. Harm that appears nowhere in a chart is very hard to prove. 5. Contact a Michigan malpractice attorney now, not near the two-year mark — the 182-day notice must be served long before the deadline. 6. Consider a separate complaint to Michigan's licensing agency; it does not substitute for a lawsuit but it creates a record.
⏱ Time limits apply. MCL 600.5805(3) gives two years for assault and battery, and MCL 600.2912b requires the 182-day notice before any malpractice suit — which means counsel and an expert are needed well inside that window. When your period began depends on your specific facts.
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Frequently Asked Questions
Does it matter that I agreed to the surgery in the first place?
Consent given beforehand does not automatically cover continuing after you clearly withdraw it. That is the core of a medical battery theory. Whether your words were a genuine revocation, and whether the team could safely have stopped at that moment, are the facts a case would turn on.
Can I sue the hospital, or only the individual anesthesiologist?
Both are commonly named. Anesthesia providers are often employed by a separate group rather than the hospital, so the records you request should show who employed each person in the room. If you pursue the malpractice route, the MCL 600.2912b notice has to go to each intended defendant separately.
What if I did not realize until months later how much this affected me?
Michigan malpractice claims have a discovery component that can matter when harm surfaces late, but it is narrow and it does not extend a claim indefinitely. Do not rely on it. Treat the two-year period in MCL 600.5805(3) as your working deadline and get the case reviewed now.
