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MAYR v. OSBORNE

Record No. 151985.

795 S.E.2d 731 (2017)

Matthew T. MAYR, et al. v. Catherine OSBORNE, Administrator of the Estate of Michael J. Osborne.

Supreme Court of Virginia.

February 2, 2017.

Attorney(s) appearing for the Case

J. Jonathan Schraub ( Paige Levy Smith ; Sands Anderson , on briefs), McLean, for appellants.

Gary B. Mims ( Matthew C. Perushek ; Sickels, Frei & Mims, on brief), Fairfax, for appellee.

Amicus Curiae: Virginia Trial Lawyers Association ( Les S. Bowers ; Gentry Locke , on brief), in support of appellee.

PRESENT: All the Justices

OPINION BY JUSTICE STEPHEN R. McCULLOUGH

The surgeon in this case mistakenly fused the wrong level on Mr. Osborne's spine. Instead of operating on level C5-C6, the surgeon operated on level C6-C7. The issue we must resolve is whether a plaintiff in such a situation can proceed on a theory of battery or whether the law confines a plaintiff to recovery under a negligence theory.1

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