Just this week, Four Corners aired their investigation into Melbourne surgeon Dr Simon Gordon, who is accused of removing tissue and organs (including reproductive organs) from women who he assessed as having ‘severe endometriosis’. Endometriosis is a chronic, often debilitating, and incurable condition where tissue similar to the uterine lining grows outside the uterus. It causes severe inflammation, scar tissue, chronic pain, and range of other serious symptoms. In some cases, organ removal is appropriate to treat the symptoms of endometriosis.

So why has Dr Gordon been the subject of this Four Corners investigation? It’s because other gynaecologists who have since seen his patients have said that many of the surgeries he performed were unnecessary and in some cases did ‘more harm than good’, with his patients experiencing severe pain and ‘compromised fertility’ as a result. Dr Gordon has now been referred to Victoria Police by Premier Jacinta Allan. Police will investigate whether there are grounds to charge Dr Gordon with a crime, but it’s also worth asking whether patients like these might be able to sue for compensation.

To consider this question, we need to think about whether a patient whose organs are unnecessarily removed might be able to sue in an area of law called tort. In simple terms, tort is the body of law that deals with civil wrongs. Most media coverage surrounding Dr Gordon’s patients has focussed on the concept of consent, and in tort law the doctrine most directly concerned with consent is called battery. The purpose of battery is to protect a person’s right to decide what happens to their body. This article therefore asks a focused question: if a surgeon removes an organ that did not need to be removed, can the patient successfully sue for battery?

Liability in Battery

Battery is the tort that protects bodily autonomy. A person is liable for the tort of battery where they make physical contact with another person’s body, in circumstances where they do not have any lawful justification for that contact. In a medical context, that justification is usually the patient’s consent to the treatment (or a genuine emergency situation where it is impracticable to obtain consent). In other words, medical treatment which involves touching another person will usually be a battery unless the practitioner has the person’s consent to treat them.

So the key issue in battery is not whether the operation turned out to be a good idea. It is whether the patient consented to the procedure that was performed. If a patient consents to the removal of a specific organ, and the surgeon removes exactly that organ, there will usually be no battery – even if the surgery later turns out to have been unnecessary or ill-advised. The law does not treat a bad medical decision, by itself, as battery (because the patient did consent to removal of the organ).

But there are limits. If a surgeon performs a materially different procedure from the one the patient agreed to, that can amount to battery. For example, in Candutti v ACT Health [2003] ACTSC 95, the plaintiff consented to a laparoscopic tubal ligation. She was instead subjected to a laparotomy with tubal ligation (a much more invasive procedure), which left her with a scar across her abdomen and continuing abdominal cramps and pain. In that case, the Court found that while the plaintiff consented to a procedure, she did not consent to the specific procedure actually performed on her. As such, the surgeon was liable in battery and the plaintiff was successful in receiving compensation for the battery. Cases like this might be relevant in a situation where a surgeon removes the wrong organ – for example, where the person is supposed to have their right (unhealthy) kidney removed but the surgeon accidentally removes their left (healthy) kidney. Unfortunately, situations like this do happen – see some other examples here, here and here!

The situation with Dr Gordon probably isn’t in the same category as cases like Candutti v ACT Health because Dr Gordon’s patients did actually have the same surgery that he told them he was going to perform. The issue wasn’t what they agreed to, but why they agreed to it.

In these circumstances, the case of Dean v Phung [2012] NSWCA 223 is more relevant. In that case, the plaintiff was injured at his job when a piece of timber struck him on the chin causing relatively minor injuries to his front teeth. His employer arranged for him to see a dental surgeon. Over about 12 months and 53 visits, the dentist carried out root canal therapy and fitted crowns on all of the appellant’s teeth. The dentist told the plaintiff these procedures were necessary, but in fact, the dentist deceived the plaintiff because the procedures were not required – the dentist was performing them just to obtain payment. The Court found that even though the plaintiff agreed to the procedures, his consent was invalid because he ‘was not aware of the nature and character of the dental acts: he believed that they constituted dental treatment that the practitioner regarded as necessary or appropriate. In fact, when the practitioner’s state of mind is taken into account, that was not their character. They were acts designed to generate income for the practitioner.’ Without making any allegations as to Dr Gordon’s motivations for the surgeries he performed, it may be that cases like Dean v Phung could be used to argue that Dr Gordon’s patients did not give genuine consent, thus making Dr Gordon liable for battery.

Conclusion

Using cases like Candutti v ACT Health and Dean v Phung, it’s possible that a person who has their organs removed unnecessarily could successfully sue in battery, but it will depend on the precise facts of their situation and exactly what they consented to.

Traditionally though, Australian courts have treated failures to provide adequate information as a matter for the tort of negligence rather than the tort of battery. In other words, the law typically distinguishes between no consent at all (which typically invokes battery) and poorly informed consent (which typically invokes negligence). Battery usually focuses on the absence of permission whereas negligence focuses on whether the doctor acted with reasonable care in diagnosing, providing information, and recommending surgery in the first place.

So in cases like this, battery will usually only succeed if the patient can show that the procedure performed was fundamentally different from what they agreed to, or that there was no real consent at all because the true character of the procedure was misrepresented. If the complaint is that the surgery should never have been recommended, the plaintiff may have a stronger claim in negligence.

Note that the content of this blog does not apply in all jurisdictions, does not constitute legal advice, and should not be relied upon. You should seek legal advice in relation to any particular matters you may have. All opinions expressed are our own, not necessarily those of any organisations with which we are connected.