Informed Consent: The Difference Between Medical Care, and Battery

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Legally and ethically, surgeons must obtain informed consent from their patients before they operate. The AMA code of medical ethics is crystal clear:

“… informed consent occurs when communication between a patient and physician results in the patient’s authorization or agreement to undergo a specific medical intervention.” (1)

A surgical patient’s consent is specific to a defined intervention, and is not of a blanket nature wherein the surgeon is authorized to take liberties unilaterally while the patient is unconscious. A skin sparing mastectomy and a mastectomy with complete removal/flat closure, are two different procedures. If a patient consents to one procedure, and then while they are unconscious the surgeon decides to perform a different procedure, that action is unethical and a violation of the patient’s consent. It is also illegal, and constitutes battery:

“As a pure legal issue, forcing treatment on an unwilling person is no different from attacking that person with a knife. The legal term for a harmful or offensive touching without permission is battery. Battery is a criminal offense, and it can also be the basis of a civil lawsuit. The key element of battery is that the touching be unauthorized, not that it be intended to harm the person. Thus forcing beneficial care on an unwilling patient would be battery… If the patient has been lied to about the treatment or there is other fraud in the informed consent, then the entire consent is invalid.” (2)

The legal definition of battery does not require that the surgeon intend to harm the patient, only that the surgery was unauthorized – the fact that the patient did not consent to the procedure, alone is enough. In many cases of mastectomy patients wishing to go flat, the surgeons do act fraudulently in obtaining informed consent. My own surgeon literally told me, “I’ll make you flat,” after extensive discussion about the specifics and risks/benefits of the procedure.

In my specific case, in addition to battery, I was also subjected to assault, which is the threat of battery. When my plastic surgeon said, as I was lying on the operating table, “I’ll just leave a little extra in case you change your mind,” that was a threat of assault. A threat to violate my consent. And he knew that I was unable to defend myself because I was about to be anesthetized. Unconscionable.

Most women who have been subjected to this type of battery, were not assaulted in advance, but rather told afterwards that their battery was in their best interest. “I left you a little extra in case you change your mind,” “I left you some cleavage.” The surgeons routinely admit to battery, but they don’t call it that, of course. They frame their decision to batter the patient in paternalistic, confusing terms. This is a psychological manipulation technique known as gaslighting (not currently defined in US law).

“Gaslighting refers to a form of intimidation or psychological abuse where false information is presented to the victim. The purpose of such act is to make them doubt their own memory and perception. This term is also known as ambient abuse.” (3)

Patients hear their surgeon, to whom they entrusted their bodily integrity and their literal life, telling them something that is factually untrue, to their face, while they are in an extremely vulnerable state post-op and dependent on the offender for their surgical aftercare. In my case, because my surgeon had assaulted me as I was lying on the OR table, his gaslighting afterwards was along the lines of flatly denying the physical evidence on my chest, rather than re-casting it as a positive (the usual strategy). My surgeon told me that he had not left extra skin, and that it would “tighten up.” He lied.

Let me be perfectly clear. As a patient who was battered, my intention is not to sue the hospital and receive compensation personally. My intention is to bring this unethical, illegal practice to the public light, and put a stop to it for good. And I will do whatever it takes to make that happen.

Kim Bowles

Not Putting on a Shirt

(1) https://www.ama-assn.org/delivering-care/informed-consent

(2) https://biotech.law.lsu.edu/map/BatteryNoConsent.html

(3) https://definitions.uslegal.com/g/gaslighting/

Published by Not Putting on a Shirt

Founder of Not Putting on a Shirt, a mastectomy patients' rights organization that advocates for optimal surgical outcomes for patients going flat.

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