Skinner, William P., Jr.

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University of North Carolina School of Law

NORTH CAROLINA LAW REVIEWVolume 34 | Number 4 Article 236-1-1956Torts -- Doctor's Liability for "UnauthorizedOperations"William P. Skinner Jr.Follow this and additional works at: http://scholarship.law.unc.edu/nclrPart of the Law CommonsThis Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina LawReview by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact law_repository@unc.edu.Recommended CitationWilliam P. Skinner Jr., Torts -- Doctor's Liability for "Unauthorized Operations", 34 N.C. L. Rev. 581 (1956).Available at: http://scholarship.law.unc.edu/nclr/vol34/iss4/23NOTES AND COMMENTSstatus before it will hold the carrier responsible for the duties imposedby reason of the carrier-passenger relationship.HORACE E. STACY, JR.Torts-Doctor's Liability for "Unauthorized Operations"While performing an authorized appendectomy on the plaintiff, de-fendant doctor punctured cysts on the plaintiff's left ovary and drainedfluid therefrom. He is charged with assault and trespass for performingthe unauthorized cyst punctures.' Plaintiff's testimony indicated expressconsent only to the removal of the appendix. Defendant's evidence didnot controvert this but showed by five duly qualified medical experts thatthe puncture of such cysts during an appendectomy is good surgical prac-tice performed in such situations. No emergency immediately endanger-ing the health of the patient was shown. Plaintiff appeals from theentry of nonsuit taken after the presentation of the above evidence. Thedecision of the lower court was affirmed on appeal.2"In such case the consent-in absence of proof to the contrary-will be construed as general in nature and the surgeon may extendthe operation to remedy any abnormal or diseased condition in thearea of the original incision whenever he, in the exercise of hissound professional judgment, determines that correct surgical pro-cedure dictates and requires such an extension of the operationoriginally contemplated."8There seems to be no disagreement among the cases that consent insome form must be present for any operation.4 The form that this con-sent takes is generally spoken of as either express consent or impliedconsent.Express consent is usually found when a very broad, general assentis given to the physician wherein he is told to remedy the situation5 orto do whatever is necessary to give relief.6 Consent to one operation isnot, however, consent to a second.7 Nor can a surgeon, during an' Kennedy v. Parrott, 243 N. C. 355, 90 S. E. 2d 754 (1956). An allegation ofnegligence in the cutting of a blood vessel on the ovary resulting in phlebitis of theleft leg was not urged on appeal although mentioned in the pleadings and in the trialbelow. [Record, p. 3.]'Kennedy v. Parrott, 243 N. C. 355, 90 S. E. 2d 754 (1956). Cf. RESTATEMENT,ToRts § 62, illustration 5 (1934).Id. at 362, 90 S. E. 2d at 759.'Wells v. Van Nort, 100 Ohio St. 101, 125 N. E. 910 (1919) ; White v. Hirsh-field, 108 Okla. 263, 236 Pac. 406 (1925) ; Valdey v. Percy, 35 Cal. App. 2d 485,96 P. 2d 142 (1939); Wall v. Brim, 138 F. 2d 478 (1943).McClallen v. Adams, 36 Mass. (19 Pick) 333, 31 Am. Dec. 140 (1837) ; Kingv. Carney, 85 Okla. 62, 204 Pac. 270 (1922) ; Rothe v. Hull, 352 Mo. 926, 180 S. W.2d 7 (1944).'McClees v. Cohen, 158 Md. 60, 148 Atl. 124 (1930).'Pratt v. Davis, 224 Ill. 300, 79 N. E. 562 (1906).19561NORTH CAROLINA LAW REVIEWauthorized operation on the plaintiff's hand, take fascia lata from thethigh even though good surgery justifies such a taking.8 But a doctor isauthorized to reopen an incision without additional authority if he 1te-lieves a needle was left within the patient's body.9 The surgeon has nodefense of consent, however, when the wrong person is treated eventhough the patient, trusting the physician, allows him to proceed withoutprotest.10 If the wrong member of the body is operated on, the surgeoncannot be excused by showing permission to operate elsewhere; as wheresurgeon was held liable for an unauthorized tonsillectomy, and the consentwas to operate on the septum of patient's nose."1 Of course an entirelydifferent operation cannot be performed 12 even though benefit may beshown to have resulted. 3 A specific prohibition to an operating surgeonnot to remove any bone or part of a bone during a foot operation cannotbe disregarded by the surgeon. 14 Nor can the sphincter muscle be cutwhen doctor is told specifically not to sever it.1' Even more obvious,consent to a small operation is not consent to a larger, more seriousoperation. 16 As can be seen from these few examples, the express con-sent decision often involves a determination of the extent of the patient'spermission as reasonably deduced from the patient's conduct under thecircumstances or from the actual agreement of the parties.On the other hand, most of the so-called implied consent cases arisewhere an emergency or unforeseen situation exists and the doctor takescertain remedial action without any consent whatsoever. The very useof the term "implied consent" is erroneous here; it is ". . . a fiction, sinceconsent does not exist, and there is no act which indicates it. It is moreaccurate here ...to say that the defendant is privileged because he isreasonably entitled to assume consent, and to act as if it had been given."'17'Franklyn v. Peabody, 249 Mich. 363, 228 N. W. 681 (1930).'Higley v. Jeffrey, 44 Wyo. 37, 8 P. 2d 96 (1932)."0 Gill v. Selling, 125 Ore. 587, 267 Pac. 812 (1928) ; Samuelson v. Taylor, 160Wash. 369, 295 Pac. 113 (1931). As to inferences of assent drawn from submis-sion, see Knowles v. Blue, 209 Ala. 27, 95 So. 481 (1923); Baxter v. Snow, 78Utah 217, 2 P. 2d 257 (1931)." Hively v. Higgs, 120 Ore. 588, 253 Pac. 363 (1927). See also, Hershey v.Peake, 115 Kan. 562, 223 Pac. 1113 (1924) ; Sullivan v. McGraw, 118 Mich. 39,76 N. W. 149 (1898) ; Krompoltz v. Hyman, 70 Pa. Super. Ct. 581 (1919) ; Mohrv. Williams, 95 Minn. 261, 104 N. W. 12 (1905)." Wells v. Van Nort, 100 Ohio St., 125 N. E. 910 (1919) ; Maercklein v. Smith,129 Colo. 72, 266 P. 2d 1095 (1954) ; see also Markart v. Zeimer, 67 Cal. App. 363,227 Pac. 683 (1924). As in the cases in note 11 supra, the malpractice-negligencecases and the assault and battery cases are hard to distinguish at times. This isoften important in connection with the running of the statute of limitations whichmay be different for the two causes of action.13 Church v. Adler, 350 Ill. App. 471, 113 N. E. 2d 327 (1953).Rolater v. Strain, 39 Okla. 572, 137 Pac. 96 (1913).1 Luzzi v. Priester, 295 S. W. 958 (Tex. Civ. App. 1927), a malpractice suit.10 Paulsen v. Gundersen, 218 Wis. 578, 260 N. W. 448 (1935). Cf. Robinsonv. Crotwell, 175 Ala. 194, 57 So. 23 (1911) ; Zoterell v. Repp, 187 Mich. 319, 153N. W. 692 (1915).17 PROSsER, TORTS § 18, p. 84 (2d ed. 1955). Also see RESTATEMENT, TORTS,Special Note § 62 at 116 (1934).[Vol. 34NOTES AND COMMENTSThe emergency or unanticipated condition generally must endanger thepatient's life or health in some immediate fashion; as where acute appen-dicitis which endangered the mother and child was discovered during aduly authorized operation for a tubal pregnancy.1 8 With this impliedconsent raised by an emergency or danger to life and health and withoutany direct, express consent whatsoever, it has been held that a surgeonmay amputate an arm which was badly injured,19 that a more seriousrupture on the right side of the groin could be remedied 6ven thoughspecific permission was only for the correction of the less serious left siderupture,20 that a surgeon could operate to remove an obstruction in theurinary system which the surgeon himself had introduced thereinto, 21and that a mangled and crushed foot could be amputated.22 If the trierof facts denominates the situation as "emergency" this is enough to up-hold defendant's verdict on appeal as to implied consent.23In every case in the above paragraph which found that there was im-plied consent, the element of emergency or danger to life or health waspresent.Other cases have used the term implied consent in a slightly differentway; as where a mother's consent to an operation on her child was con-sidered as implying consent of the child.2 4 But, in the usual use of theterm the consent arises from the presence of emergency or possible direresults. Most of the cases listed which denied an implied consent did soexpressly because there was no emergency. It seems in one case thatJustice Cardozo lists "emergency" as the only direct exception to theexpress consent rule.235 A recent Kentucky case states directly that amere endangering of the patient's life or health some time in the futureis not such an emergency as would imply consent presently.2 6 It will benoted that in the principal case, the testimony of the expert witnesseswas that the cysts were certainly not immediately dangerous. The de-fendant himself testified:"I say they [the cysts] were dangerous. I can't say how long itwould have been before she would have had to have an operation;it possibly could have been two or three months before it wouldhave been necessary for her to have had an operation. It is pos-" Barnett v. Bachrach, 34 A. 2d 626 (D. C. Mun. App. 1943) ; see also Sullivanv. Montgomery, 155 Misc. 448, 279 N. Y. Supp. 575 (1935).J' ackovach v. Yocum, 212 Iowa 914, 237 N. W. 444 (1931)._- Bennan v. Parsonnett, 83 N. J. L. 20, 83 At. 948 (1912)..1Delahunt v. Finton, 244 Mich. 226, 221 N. W. 168 (1928).22Luka v. Lowrie, 171 Mich. 122, 136 N. W. 1106 (1912)."Barnett v. Bachrach, 34 A. 2d 626 (D. C. Mun. App. 1943).24 Barfield v. South Highlands Infirmary, 191 Ala. 553, 68 So. 30 (1915).-' Schloendorff v. N. Y. Hospital, 211 N. Y. 125, 105 N. E. 92 (1914)."Tabor v. Scobee, 254 S. W. 2d 474 (Ky. 1951).1956]NORTH CAROLINA LAW REVIEWsible if I had not done anything to this ovary or ovaries, that shemight never have had to have an operation.27The expert witnesses testified to the effect that "[ilt is the acceptedtheory to puncture them whether they are dangerous or not."28  (Em-phasis added.) The customary and usual practice of surgeons was estab-lished; that surgeons usually remedy such conditions is adequatelyshown.29  But no emergency or immediate danger was shown. It issubmitted that the principal case goes further in "implying" consent80in a non-emergency, non-danger situation than any previous case.8 1The basis of the North Carolina court's decision, then, would notseem to be any "emergency" theory. The court, rather, believes thatmodem medical practice with its use of anaesthesia and isolated operatingrooms demands that some change be made in the former strict consentrules. It quotes extensively from Bennan v. Parsonnet,32 a New Jerseycase, to show the historic development of modern surgery and the needfor a change in the law. The rule as quoted in the first paragraph aboveis then stated with a citation to three cases.83 It is interesting to notethat two of the three cases and the Bennan case were "emergency" or"danger to life and health" types of cases; the other case was a "volun-tary submission" case.34The consent raised from this non-emergency, modern medicine doc-trine allows the surgeons themselves to establish the limits as to what agiven operation should cover once the surgeon sees the exact internalcondition after incision. Some latitude is necessary, certainly. The factsof the principal case as presented by the five experts seem to make acase for such freedom. The limits of this type of consent still have tobe drawn. How far afield may the surgeon go in remedying non-emergency situations? The limiting line in emergency cases is not im-2" Kennedy v. Parrott, 243 N. C. 355, 90 S. E. 2d 754 (1956), [Record, p. 30.]28 Kennedy v. Parrott, 243 N. C. 355, 90 S. E. 2d 754 (1956), [Record, p. 48;also pp. 34, 38, 42 and 51.]"0 See Russell v. Jackson, 37 Wash. 2d 66, 221 P. 2d 516 (1950), where physi-cians testified that if a cyst on an ovary is discovered during an operation it is com-mon practice to remove it.'0 It is realized that the term "implied consent" is specifically-and correctly-avoided by the North Carolina court as a "fetish," Kennedy v. Parrott, 243 N. C.355, 361; 90 S. E. 2d 754, 758, but for uniformity's sake the term is used throughoutthis note."1 Cf. McGuire v. Rix, 118 Neb. 434, 225 N. W. 120 (1929) and Boydston v.Giltner, 3 Ore. 118 (1869). Although stating rather liberal rules to absolve thephysician, both cases differ in their holdings from the principal case. See REsTATE-M.tENT, TORTS §§ 54 and 62 (1934).2283 N. J. L. 20, 83 Atl. 948 (1912).3 King v. Carney, 85 Okla. 62, 204 Pac. 270 (1922) ; Baxter v. Snow, 78 Utah217, 2 P. 2d 257 (1931) ; Jackovach v. Yocum, 212 Iowa 914, 237 N. W. 444 (1931)." Baxter v. Snow stated, inter alia, that voluntary'submission to a physicianfor diagnosis and treatment would raise a presumption of consent absent contraryevidence. See note 10 supra.[Vol. 34NOTES AND COMIIENTSpossible to draw since it will extend only to the affected area, but wherethis emergency boundary is not present some difficulty will be encoun-tered. It remains to be seen how the court will handle an extensionwhich is not so universally conceded by the medical experts to be the((usual practice of surgeons."The general rule still subsists that "every human being of adult yearsand a sound mind has a right to determine what shall be done with hisown body; and a surgeon who performs an operation without his pa-tient's consent commits an assault, for which he is liable in damages.35To this the North Carolina court quickly would add, however, that oncethe general permission is given, the doctor may operate as good surgerydemands, correcting also certain other situations even if no dire emer-gency is present. The limiting boundaries are still to be delineated.WILLIAM P. SKINNER, JR.Trial Practice-Hearings for a New Trial-Right of Trial Court toTake Testimony Outside the Record and to Deny the Right of CrossExaminationIn North Carolina,' as in many other jurisdictions,2 the trial courthas the inherent power to set aside a verdict and order a new trial.3Where there is no question of law or legal inference ihvolved in a motionfor a new trial, it is addressed to the sound discretion of the trial judgewhose ruling, in the absence of abuse, is not reviewable on appeal. 4 Thispower is considered essential for the orderly administration of justicesince the judge is in a position to observe the trial objectively and protectthe proceedings from unfair influences which may never appear in therecord.5 Since the judge may exercise his discretion and give no reasons" Schloendorff v. N. Y. Hospital, 211 N. Y. 125, 129; 105 N. E. 92, 93 (1914)(a much quoted phrase of Justice Cardozo).'Bird v. Bradburn, 131 N. C. 488, 42 S. E. 936 (1902)." Common law authority of a trial court to set aside a verdict and order a newtrial is inherent in all courts of common law in the United States. 39 Af. JUR.,New Trial § 4 (1942).' This common law power has been partially codified in N. C. GEN. STAT. §1-207which specifically sets out the trial courts' right to set aside a verdict and grant anew trial upon exceptions, insufficient evidence, or for excessive damages.' Muse v. Muse, 234 N. C. 205, 66 S. E. 2d 689 (1951) ; Pruitt v. Ray, 230 N. C.322, 52 S. E. 2d 876 (1949).Speaking of the judge's duty to set the verdict aside when he perceives thatjustice has not been done, the court said: "His discretion to do so is not limited tocases in which there has been a miscarriage of justice by reason of the verdicthaving been against the weight of the evidence (in which, of course, he will bereluctant to set his opinion against that of twelve), but he may perceive that therehas been prejudice in the community which has affected the jurrors, possibly un-known to themselves, but perceptible to the judge-who is usually a stranger-ora very able lawyer has procured an advantage over an inferior one, an advantagelegitimate enough in him, but which has brought about a result which the judgesees is contrary to justice. In such, and, many other instances which would not1956]

Torts -- Doctor\u27s Liability for  Unauthorized Operations

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Torts -- Doctor\u27s Liability for Unauthorized Operations

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