ABSTRACT
First, what form might the patient’s claim take? On the face of it, there would seem to be three possibilities – to sue in tort, either in battery or negligence, or to mount an action for breach of contract. In practice, however, it is the second of these, a negligence action, which offers the only appropriate channel for the vast majority of malpractice claims. The fi rst option, battery, which forms the civil analogue to the crime of assault, generally only arises as a possibility in those
rare cases where treatment is carried out without any consent at all. It is no use to the patient who, having given such consent, suffers injury, however poor the execution of the treatment subsequently turns out to be.
