Can a physician be held liable for battery under a medical malpractice program?

Defendants demurred to the complaint on the ground that plaintiffs' admission of their consent to the use of violence upon them, bars a cause of action for battery because consent to offensive touching is vitiated only where the touching is different in nature from that to which consent was given. Defendants argued that under the rule stated in Cobbs v. Grant (1972) 8 Cal.3d 229, 239-241, 104 Cal.Rptr. 505, 502 P.2d 1, a physician may not be liable for battery upon a patient unless he performs a treatment which is "substantially different" from that to which the patient gave consent. Defendants concluded that because the alleged violent touchings of which plaintiffs now complain are physically identical to the contact consented to, plaintiffs' consent is not vitiated and there can be no cause for battery. Defendants also challenged as unsupported by authority or logic the plaintiffs' theory that their consent is vitiated because it resulted from the "coercive persuasion" employed during the course of the program. ¹

Respondent sustained the demurrer without leave to amend. The basis of this ruling was not enunciated.