What is the test for an action in battery arising out of medical treatment by a physician?
British Columbia, Canada
The following excerpt is from Hernandez v. Ho, 2006 BCCA 302 (CanLII):
An action in battery arising out of medical treatment by a physician will lie only when the patient has not consented to the treatment. This principle was established in Reibl v. Hughes, 1980 CanLII 23 (SCC), [1980] 2 S.C.R. 880 at 890, where Laskin C.J.C., who gave the judgment of the court, said, . . . In my opinion, actions of battery in respect of surgical or other medical treatment should be confined to cases where surgery or treatment has been performed or given to which there has been no consent at all or where, emergency situations aside, surgery or treatment has been performed or given beyond that to which there was consent.
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