Present: All the Justices 

JANICE WASHBURN 

v. Record No. 011034 OPINION BY JUSTICE CYNTHIA D. KINSER 

 APRIL 19, 2002 

PETER KLARA, M.D., ET AL. 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Joseph A. Leafe, Judge 

 In this claim of battery, the issue is whether the 

evidence raises a reasonable inference that the defendant 

surgeon intentionally performed a surgical procedure 

exceeding the scope of the plaintiff’s consent. Because we 

conclude that the plaintiff presented sufficient evidence 

to create a factual dispute on this issue, which a jury 

must resolve, we will reverse the circuit court’s judgment 

striking the plaintiff’s evidence and remand the case for a 

new trial. 

FACTS AND MATERIAL PROCEEDINGS 

 In September 1997, Britt M. Borden, M.D., performed a 

surgical procedure known as an anterior cervical diskectomy 

on Janice L. Washburn. At the time of the operation, Dr. 

Borden was training in a fellowship program at Eastern 

Virginia Medical School, with Peter Klara, M.D., acting as 

Dr. Borden’s supervising faculty member. The surgery took 

place at the Virginia Beach General Hospital (the 

Hospital). 
 Dr. Borden had diagnosed Washburn with C6-7 

pseudoarthrosis1 after a bone scan revealed dense scar 

tissue at the C6-7 level of her spine. That scar tissue 

resulted from a previous surgical fusion that Washburn had 

undergone in 1994. To relieve pain in Washburn’s neck and 

left arm, Dr. Borden recommended the anterior cervical 

diskectomy procedure. He described the procedure as 

“removing the bone and fibrous tissue that are in the area 

of the old fusion that didn’t take and replacing it with 

another graft, and then placing a plate on the spine to 

hold it together while it heals.” Dr. Klara agreed that 

Washburn was likely to benefit from the surgery. 

 Prior to surgery, Washburn executed a written consent 

form. The form specified authorization for a “C67 Anterior 

Cervical Diskectomy” and described the operation in 

layman’s terms as “remove bone & fibrous tissue and replace 

graft[.]” The consent form also authorized “the 

performance of such operation(s) and procedure(s) in 

addition to or different from those now contemplated . . . 

which the . . . physician . . . consider[s] necessary or 

 1

 Pseudoarthrosis is the “failure of spinal fusion to 

occur following surgery.” Taber’s Cyclopedic Medical 

Dictionary 1583 (18th ed. 1997). 

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advisable in the exercise of his[] professional [judgment] 

in accordance with reasonable medical standards.” 

 Because the surgery allegedly caused Washburn to 

suffer “permanent laryngeal and/or recurrent nerve damage,” 

Washburn filed the present action against Drs. Borden and 

Klara, Peter Klara, M.D., P.C., and the Hospital.2 Washburn 

asserted theories of recovery based upon medical 

malpractice, emotional distress, battery, lack of informed 

consent, fraud, and receiving money under false pretenses. 

Prior to trial, the circuit court sustained demurrers to 

Washburn’s claims of emotional distress and receiving money 

under false pretenses.3 During the trial, Washburn 

 2

 This is the second action filed by Washburn against 

these defendants. In the first case, the trial court 

sustained Dr. Borden’s plea of sovereign immunity with 

regard to all claims based on negligence. The court also 

granted the Hospital’s motion for summary judgment. 

Washburn then nonsuited her remaining claims and appealed 

from the trial court’s judgment on the issue of sovereign 

immunity. While that appeal was pending, Washburn filed 

the present action. In an order dated November 3, 2000, we 

affirmed the trial court’s judgment that Dr. Borden was 

entitled to sovereign immunity on the negligence claims. 

3

 The circuit court also sustained the Hospital’s 

demurrer to Washburn’s claim of vicarious liability and its 

special plea of res judicata with regard to the other 

claims asserted against it. Although Washburn assigned 

error to the circuit court’s ruling with regard to the 

Hospital, we granted the Hospital’s motion to dismiss 

Washburn’s petition for appeal in an order dated November 

8, 2001. Thus, the Hospital is not a party to this appeal. 

Hereinafter, references to “the defendants” do not include 

the Hospital. 

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voluntarily dismissed her claim of medical malpractice and 

presented evidence to the jury only with regard to the 

remaining counts. 

 As pertinent to the issue in this appeal, Dr. Borden 

testified at trial that he performed the surgery at the C6-

7 level, as specified in Washburn’s written consent. He 

denied that he operated, either intentionally or 

unintentionally, at the C7-T1 level of Washburn’s spine. 

However, post-operative radiology reports indicated 

evidence of a fusion at the C7-T1 level, in addition to a 

fusion at the C6-7 level. One of the radiology readings 

admitted into evidence by Washburn stated that a “screw is 

projecting over the inferior aspect of the T1 vertebral 

body.” Although Dr. Borden acknowledged that Washburn’s 

cervical fusion in 1994 did not involve the use of any 

hardware and that he was the first person to place any 

screws and plates in Washburn’s spine, he maintained that 

he did not operate at the C7-T1 level. Dr. Borden also 

stated that there was no medical reason to operate at the 

C7-T1 level. 

 At the close of Washburn’s case-in-chief, the circuit 

court granted the defendants’ motion to strike the 

evidence, specifically finding, as pertinent to the claim 

of battery, that there was no evidence that the surgery 

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exceeded the scope of Washburn’s consent. The court 

subsequently entered a final order granting judgment for 

the defendants. We awarded Washburn this appeal, limited 

solely to the issue whether the circuit court erred in 

striking the evidence with regard to the count alleging 

battery.4

ANALYSIS 

 We have stated that 

[w]hen the sufficiency of a plaintiff’s evidence 

is challenged upon a motion to strike the 

evidence at the conclusion of the plaintiff’s 

case-in-chief, the trial court should in every 

case overrule the motion where there is any doubt 

on the question. 

Rizzo v. Schiller, 248 Va. 155, 159-60, 445 S.E.2d 153, 156 

(1994) (quoting Brown v. Koulizakis, 229 Va. 524, 531, 331 

S.E.2d 440, 445 (1985) (citation omitted)). The trial 

court must also “give the plaintiff ‘the benefit of all 

substantial conflict in the evidence, and all fair 

inferences that may be drawn therefrom.’ ” Hadeed v. 

Medic-24, Ltd., 237 Va. 277, 285-86, 377 S.E.2d 589, 593 

(1989) (quoting Walton v. Walton, 168 Va. 418, 423, 191 

S.E. 768, 770 (1937)); see also Powell v. Margileth, 259 

 4

 The defendants filed separate motions to dismiss 

Washburn’s petition for appeal, asserting that Washburn had 

failed to file transcripts material to the consideration of 

her assignments of error. Those motions were denied by an 

order of this Court dated November 8, 2001. 

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Va. 244, 246, 524 S.E.2d 434, 435 (2000). Applying these 

principles, we conclude that the evidence in this case, 

when viewed in the light most favorable to Washburn, is 

open to the reasonable inference that Dr. Borden performed 

a cervical diskectomy at two levels of Washburn’s spine, 

thereby exceeding the scope of her consent. Thus, we find 

that the circuit court erred by striking Washburn’s 

evidence with regard to the claim of battery. 

 This Court has recognized that the physician-patient 

relationship is a consensual one. See, e.g., Pugsley v. 

Privette, 220 Va. 892, 899, 263 S.E.2d 69, 74 (1980); Lyons 

v. Grether, 218 Va. 630, 633, 239 S.E.2d 103, 105 (1977). 

Thus, unless an emergency or unanticipated problem arises, 

a physician or surgeon must first obtain the consent of a 

patient before treating or operating on that patient. See 

61 Am. Jur. 2d Physicians, Surgeons, and Other Healers 

§ 175 (1981). “An unauthorized operation is a wrongful and 

unlawful act for which the surgeon will be liable in 

damages.” Pugsley, 220 Va. at 899, 263 S.E.2d at 74. 

A written consent, such as the one executed by 

Washburn, “does not constitute consent to an operation 

other than the one to be performed when there is no 

evidence that a necessity arose during the authorized 

operation.” Lloyd v. Kull, 329 F.2d 168, 170 (7th Cir. 

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1964). Consequently, in the absence of such necessity, an 

operation without consent or the extension of an operation 

beyond the scope of the patient’s consent constitutes what 

is sometimes referred to as a “‘technical’ assault and 

battery.” See Lane v. United States, 225 F. Supp. 850, 852 

(E.D. Va. 1964); Hively v. Higgs, 253 P. 363, 365 (Ore. 

1927); Nolan v. Kechijian, 64 A.2d 866, 868 (R.I. 1949). 

We discussed this form of “technical” battery in Pugsley, 

where we stated that “[i]t is well established that, given 

the proper factual conditions and circumstances, a patient 

can maintain against a physician an action based on assault 

and battery for acts arising out of the physician’s 

professional conduct” and that “ ‘[a] surgical operation on 

the body of a person is a technical battery or trespass 

unless he or some authorized person consented to it.’ ” 

Pugsley, 220 Va. at 899, 263 S.E.2d at 74 (quoting what is 

now 61 Am. Jur. 2d Physicians, Surgeons, and Other Healers 

§ 197 (1981)). 

 Later, in Woodbury v. Courtney, 239 Va. 651, 391 

S.E.2d 293 (1990), we again addressed the tort of battery 

in the context of medical malpractice. In Woodbury, a 

patient gave her consent for a breast biopsy. When the 

surgeon performed a partial mastectomy, the patient brought 

an action against the surgeon, alleging, among other 

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things, battery. In defense, the surgeon asserted that the 

terms “biopsy” and “partial mastectomy” are synonymous and 

that, therefore, the patient consented to the partial 

mastectomy. With respect to the claim of battery, we held 

that the trial court erred in granting summary judgment in 

favor of the defendant surgeon, because the plaintiff was 

not required to present expert medical testimony in order 

to prove her allegations of battery. We concluded that 

“[a] factual issue was created and the jury should have 

been allowed to determine the extent of the permission [the 

patient] granted to [the surgeon] and whether he exceeded 

the scope of that permission. If [the surgeon] exceeded 

the scope of that permission, then he committed a battery.” 

Id. at 654, 391 S.E.2d at 295 (citing Pugsley, 220 Va. at 

899, 263 S.E.2d at 74). 

 In the instant case, Washburn’s claim of battery is 

predicated on her allegations that Dr. Borden exceeded the 

scope of her consent by performing a cervical diskectomy at 

the C7-T1 level of her spine, in addition to the diskectomy 

at the C6-7 level to which Washburn had consented. 

According to Washburn, the evidence, primarily the postoperative radiology reports, established a prima facie case 

of battery and, in light of Dr. Borden’s insistence that he 

did not, either intentionally or unintentionally, fuse the 

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vertebrae at the C7-T1 level, created a factual question 

for the jury to decide. 

 Dr. Borden, however, contends that Washburn failed to 

establish a prima facie case of battery because there was 

no evidence that he intentionally exceeded the scope of 

Washburn’s consent. On brief, Dr. Borden acknowledged that 

Washburn presented some evidence that he operated beyond 

the C6-7 level and that her consent was limited to surgery 

at that level. While Dr. Borden maintains that he operated 

only at the C6-7 level, he nevertheless argues that, if a 

fusion of Washburn’s vertebrae at the C7-T1 level occurred 

during the surgery, it resulted from his negligence or lack 

of skill and not because he intentionally operated at that 

level. Thus, he contends that he did not commit a battery 

on Washburn. 

 In granting the defendants’ motion to strike 

Washburn’s evidence, the circuit court concluded that there 

was no evidence that the surgery exceeded the scope of 

Washburn’s consent. However, the radiology reports 

indicating fusion at the C7-T1 level are at least some 

evidence that Dr. Borden may have operated at a level other 

than that specified in Washburn’s written consent. 

Although the consent authorized additional operations or 

procedures deemed necessary or advisable, Dr. Borden 

9
admitted that there was no medical reason to operate at the 

C7-T1 level. 

 Thus, we conclude that evidence presented by Washburn 

was sufficient to present a factual issue, for the jury’s 

determination, whether Dr. Borden intentionally performed a 

cervical diskectomy at two levels of Washburn’s spine, thus 

exceeding the scope of her consent. As we stated in 

Woodbury, if a surgeon exceeds the scope of a patient’s 

consent, then the doctor has committed a battery. 239 Va. 

at 654, 391 S.E.2d at 295. Accordingly, we will reverse 

the judgment of the circuit court and remand for a new 

trial on Washburn’s claim of battery.5

Reversed and remanded.

 5

 We remand the case as to all the defendants. When 

the circuit court granted the motion to strike Washburn’s 

evidence, the court stated from the bench that the 

vicarious liability question necessarily followed the 

battery claim and that, since there was no issue to go to 

the jury on the battery claim, the motion to strike with 

regard to Dr. Klara’s vicarious liability was also granted. 

Thus, the court never addressed the merits of the question 

whether Dr. Klara and his professional corporation can be 

held vicariously liable for Dr. Borden’s actions. Hence, 

we will not address the arguments presented on appeal 

regarding that question. 

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