On December 22, 2017 an upstate New York appellate court upheld the right of a patient to sue a surgeon for exceeding the scope of a surgery she consented to. There was no discussion by the Court of the type of surgery the plaintiff did consent to. However, the Court noted that the plaintiff had a history of bowel difficulties and that she had expressed her strong desire not to undergo any further procedures which may impact her bowel. According to the sworn deposition testimony of the plaintiff, she told her surgeon: "don't touch my bowel" and that the surgeon responded, "Honey, I promise you nothing will happen to your bowel and if anything is close to your bowel, I will not touch it."

The plaintiff suffered a bowel perforation during the course of the surgery. The Court held that the plaintiff was entitled to have a jury decide who they believe. If plaintiff's testimony is believed, the surgeon will he held liable for money damages arising out of a battery--an intentional act for which there may be no insurance coverage. Tirado v Koritz, 2017 N.Y. Slip Op. 08954