patients, breach of fiduciary duty could be a readily available cause of action if they do not manage carefully their conflicts of interest and of obligation. Battery and Informed Consent The most prevalent problems in research have stemmed from the consent process. In the earliest lawsuits the problem was a complete lack of information and consent - classically, battery. More recently litigants claim that information has been inadequate rather than absent. Both these scenarios deserve special attention. Butte y When research is surreptitious and completely unconsented, as in the government-sponsored radiation studies during the mid-twentieth century, then battery - defined as unconsented, offensive touching,s1 - seems an obvious claim. Yet courts permit only limited room for this tort in health care, particularly when they view research injuries as simply a form of medical malpractice. As argued just below, however, certain kinds of research conduct should be deemed a distinctive kind of battery, here dubbed “medical research battery.” Historically, informed consent doctrine began in battery, focusing on surgeries to which the patient had not consented, or which went well beyond the agreed-on procedure.82 However, informed consent tentional tort for which malpractice insurance provided no coverage. Battery can also carry costly punitive damagesF5 Moreover, battery requires no expert testimony, no finding that the procedure was performed negligently,86 and no causal connection between the battery and the injurie~.~7 One need only prove the touching was unconsented and offensive. Following that transition, many courts have been reluctant to find a cause of action for battery in health care - even where a plaintiff was ostensibly subjected to undisclosed research - so long as there was some sort of consent. Thus, in Heinrich v. Sweeps the court denied a claim for battery. The plaintiffs did not contend there was no consent at all, rather that the consent was inadequately informed, hence a matter of negligence rather than battery. Nevertheless, battery still has a role.89 Courts commonly recognize a medical battery action in three main scenarios. The first is a complete lack of consent. For instance, when pregnant women were given DES (diethylstilbestrol) to prevent miscarriage without their knowledge or consent, ultimately leaving their daughters at higher risk for cancer, a federal district court was willing to find battery even though the women themselves were not injured. “The essence ... [ofthe] question in a battery case involving a physician is what did the patient agree with the physician to have done, and was the ultimate contact by the physician within the scope of the patient’s ons sent,''^^ Second, battery has been found where a procedure is substantially different from or beyond that to which the patient consented (in essence, a substitution of one treatment for another). In Karl. J. Pizxalotto, M.D., Ltd. v. Wi2son,g1 for instance, a patient had agreed to conservative surgery but instead received an unwanted, unconsented hy~terectomy.9~ Third, courts are willing to find battery when a different doctor is substituted for the one the patient agreed would perform the procedure (“ghost surgery”). Thus, when a patient’s kidney stone surgery was performed by a different doctor in the physician‘s medical group the New Jersey Supreme Court held that the substitution constituted battery.g3 These latter two scenarios, in which something to which the patient did not consent is substituted for something to which he did consent (different procedure, different doctor), emphasize that battery is a matter of agreements and boundaries. The consent marks a boundary, outside of which the physician may not go without further consultation and agreement. In undisclosed research, a very distinctive kind of substitution takes place, arguably even more offensive than medical battery. It is a substitution of goals. Clinical research pursues a fundamentally different goal from ordinary medical care. While medical practice seeks to benefit the individual patient, research seeks scientific knowledge. Therefore, when patients are subjected to research without their knowledge or consent, the investigator has covertly made a profound change of goals. While the patient believes his personal welfare is the primary goal, the real goal is now to benefit society by following a protocol, even sometimes contrary to the patient’s best interest. At the same time the physician has also shifted his relationship with the patient from a fiduciary physician-patient relationship to a nonfiduciary investigator-subject connection. Accordingly, where research is substituted for or added to treatment and the investigator 478 THE JOURNAL OF LAW, MEDICINE & ETHICS E. Haavi Morreim has not clearly informed the patient, courts should recognize “medical research battery” as a cognizable a cause of action with the full panoply of battery damages, including punitive damages.g4 As a practical matter, batterywill probably remain limited as an avenue of tort remedy, even in research. First, in the current era, a complete failure to inform someone that he has been participating in research is probably relatively rare. Between the recent spate of lawsuits and the flurry of government penalties for regulatory missteps, the research community has become