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Brushett v Cowan (1990), 69 DLR (4th) 743 (Nfld CA)


B was a patient that had problems with her knee and thigh. C advised her to get a muscle biopsy. B went to hospital and consented to the procedure. C did muscle biopsy and also bone biopsy. B had to get a fracture repaired because she put weight on the leg. C said that he had told her to use the crutches and not put weight on the leg.

At trial: Court held that bone biopsy was battery. Negligence of doctor did not cause injury; B was contributorily negligent 20%. C appealed


The full extent of consent is determined by looking at all of the circumstances arising from the doctor-patient relationship.


Battery in medical procedures can only occur when there is no consent at all. Intent of procedure was to find the medical problem for which she consulted C. Bone biopsy comes under “alternative measures”


Appeal allowed in part. Decision in favour of C: no battery (negligence finding upheld).

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