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

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

2

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 
CARTER v. PAIN CENTER, et al.

Opinion of the Court

3

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 
CARTER v. PAIN CENTER, et al.

Opinion of the Court

4

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.
CARTER v. PAIN CENTER, et al.

Opinion of the Court

5

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.
CARTER v. PAIN CENTER, et al.

Opinion of the Court

6

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 
CARTER v. PAIN CENTER, et al.

Opinion of the Court

7

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

 

3 Carter does not argue on appeal that the defense verdict on her claim 

for false imprisonment should be reversed.