¶1dissenting.
¶2This kind of lawsuit is sometimes referred to as a “money hunt.” Henchey consented to the surgical procedure which was performed on his mother and does not assert that the procedure was negligently performed. His quest for damages is premised solely on the fact that the surgery was performed by Dr. Vitale instead of by his partner, Dr. Wieman. Henchey did not know either doctor, but accepted Dr. Sparrow’s referral to Wieman because Sparrow thought Vitale was “too aggressive” and “uncompassionate.” Although Henchey did not specifically authorize Dr. Vitale to perform the surgery, neither did he specifically object to his doing so. Compare Johnson v. McMurray, 461 So.2d 775 (Ala.1984) and Taylor-Gove v. St. Joseph’s Hosp. Health Center, 242 A.D.2d 879, 662 N.Y.S.2d 675 (1997), both of which were cases wherein the patient had specifically objected to being treated by the physician who performed the surgery. Henchey does not claim that Dr. Vitale performed this surgery either “too aggressively” or “uncompassionately,” much less unprofessionally. Vitale performed the surgery only because Wieman was called out of town and was, thus, unavailable to provide follow-up care.
¶3The primary authorities cited by the majority, ie., Tabor v. Scobee, Ky., 254 S.W.2d 474 (1951), Schloendorff v. Society of New York Hosp., 211 N.Y. 125, 105 N.E. 92 (1914), overruled on other grounds, Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3 (1957), and Lounsbury v. Capel, 836 P.2d 188 (Utah Ct.App.1992), are all cases in which the patient did not consent to the type of surgery which was actually performed. In my view, the ancient tort of battery should be reserved for nonconsensual physical contact which is offensive or harmful to'the victim, and that claims of tortious conduct with respect to the practice of medicine should be addressed by application of negligence principles relative to malpractice and informed consent, not battery. I would reverse the Court of Appeals and reinstate the judgment of the trial court.
¶4JOHNSTONE, J., joins this dissenting opinion.