Plaintiff brought suit against Defendant for assault and battery. Defendant, an excellent physician and ear specialist, examined Plaintiff’s right and left ear. Defendant informed Plaintiff of the result of his examination and advised her to have an operation on her right ear. Plaintiff was not informed that her left ear was in any way diseased. Plaintiff agreed to undergo surgery on her right ear.
While Plaintiff was unconscious, when Defendant found Plaintiff’s left ear to be in a more serious condition than her right ear. Defendant also found the right ear to be less serious than expected. Defendant concluded that the right ear should not be operated upon and that instead, Plaintiff’s left ear should be operated upon. Plaintiff was unconscious, was not informed, and did not consent to her left ear being operated upon. The operation on Plaintiff’s left ear was in every way successfully and skillfully performed. However, Plaintiff claimed that Defendant’s operation on her left ear greatly impaired her hearing. Plaintiff brought suit against Defendant for assault and battery to recover damages for the hearing impairment in her left ear.
The lower court trial resulted in a verdict for Plaintiff for $14,322.50. The trial judge set aside the verdict as excessive and ordered a new trial. Both parties appealed.
Issue
While Plaintiff was unconscious, when Defendant found Plaintiff’s left ear to be in a more serious condition than her right ear. Defendant also found the right ear to be less serious than expected. Defendant concluded that the right ear should not be operated upon and that instead, Plaintiff’s left ear should be operated upon. Plaintiff was unconscious, was not informed, and did not consent to her left ear being operated upon. The operation on Plaintiff’s left ear was in every way successfully and skillfully performed. However, Plaintiff claimed that Defendant’s operation on her left ear greatly impaired her hearing. Plaintiff brought suit against Defendant for assault and battery to recover damages for the hearing impairment in her left ear.
The lower court trial resulted in a verdict for Plaintiff for $14,322.50. The trial judge set aside the verdict as excessive and ordered a new trial. Both parties appealed.
Issue
Did Plaintiff impliedly consent to an operation on her left ear when she consented to an operation on her right ear?
Held
No. Judgment affirmed.
* An operation that is performed without the consent of the patient is wrongful unless the circumstances were such as to justify its performance without it. If the operation is wrongful it is unlawful. There is no evidence that the left ear involved a serious or life threatening situation. The circumstances were such that consent should have been obtained. Whether or not consent was obtained is a question left to the jury. If the operation was not consented to, then it was unlawful.
* The amount of Plaintiff’s recovery, if she is entitled to recover at all, must depend upon the character and extent of the injury inflicted. The beneficial nature of the operation and the good faith of Defendant should be taken into consideration.
* An operation that is performed without the consent of the patient is wrongful unless the circumstances were such as to justify its performance without it. If the operation is wrongful it is unlawful. There is no evidence that the left ear involved a serious or life threatening situation. The circumstances were such that consent should have been obtained. Whether or not consent was obtained is a question left to the jury. If the operation was not consented to, then it was unlawful.
* The amount of Plaintiff’s recovery, if she is entitled to recover at all, must depend upon the character and extent of the injury inflicted. The beneficial nature of the operation and the good faith of Defendant should be taken into consideration.
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