104 N.W. 12 (Minn. 1905)
In 1905 plaintiff Mohr consulted defendant Williams, a physician and surgeon in St. Paul who specialized in disorders of the ear and maintained an extensive practice there.1 Defendant examined her right ear and found a large perforation in the lower portion of the drum membrane together with a large polyp in the middle ear that indicated probable disease of the ossicles.2 He also examined the left ear but could not complete a full diagnosis because of foreign substances present.3
After informing plaintiff of the right-ear findings and recommending surgery to remove the polyp and diseased ossicles, plaintiff consulted her family physician and held one or two additional meetings with defendant.4 Plaintiff agreed to undergo the proposed operation on her right ear only.5 She was never told that her left ear was diseased and understood that the necessity for surgery applied solely to the right ear.6
Plaintiff went to the hospital and was placed under anesthesia.7 Defendant then conducted a thorough examination of the left ear and discovered a small hooded perforation high in the drum membrane with granulated edges and dead diseased bone on the inner wall of the middle ear.8 Defendant called Dr. Davis, plaintiff's family physician who attended at her request, to confirm the findings.9 Upon re-examining the right ear and determining that its condition was less serious than anticipated, defendant performed an ossiculectomy on the left ear, removing a portion of the drum membrane and scraping away the diseased bone.10 The procedure was completed skillfully and without technical complication.11
Plaintiff later asserted that the operation impaired her hearing and injured her person.12 She brought suit claiming the surgery was performed without her consent and therefore constituted an assault and battery.13 The case was tried to a jury that returned a verdict for plaintiff in the amount of $14,322.50.14 Defendant moved for judgment notwithstanding the verdict or, alternatively, for a new trial on the ground that the damages were excessive.15 The trial court denied the motion for judgment but granted a new trial on the ground, as stated in the order, that the damages were excessive.16 Both parties appealed from the orders entered on the post-trial motions.17
Whether the patient consented to the operation performed on her left ear?18
No. The established facts demonstrate that plaintiff agreed to surgery solely on her right ear after defendant described only the perforation and polyp in that ear.21 Plaintiff was never informed of any disease in her left ear and understood the necessity for operation applied exclusively to the right side.22 Defendant performed an independent examination of the left ear after anesthesia was administered and then elected to operate on that ear instead.23 Dr. Davis attended at plaintiff's request solely to calm her fears and held no authority to consent to any change in the planned procedure.24
These facts establish that no express consent existed for the left-ear operation and that the circumstances do not support a finding of implied consent through the family physician's silence.25
The patient did not consent to the operation performed on her left ear.26
Whether the patient's consent was necessary before the physician could operate on the left ear?27
A patient must provide consent before a physician may perform a surgical operation.28 Consent is implied only in true emergencies where the patient is unconscious and immediate action is required to preserve life or limb.29 Consent is also implied when unanticipated conditions threatening health are discovered during an operation to which the patient has already consented.30
Yes. The established facts show that defendant discovered the left-ear condition through an independent examination conducted after determining the authorized right-ear operation was unnecessary, rather than during the course of the consented procedure.31 Plaintiff had experienced no particular difficulty with her left ear, and the evidence presented no immediate threat requiring prompt intervention to save life or health.32 The trial court correctly treated the existence of an emergency as a question of fact for the jury rather than a matter of law.33
Because the operation on the left ear was neither an emergency nor an extension of the authorized right-ear procedure, plaintiff's consent remained necessary.34
The patient's consent was necessary before the physician could operate on the left ear.35
Whether the operation performed without consent constituted an assault and battery?36
Yes. The established facts establish that defendant performed the ossiculectomy on plaintiff's left ear without her consent and outside any recognized exception for emergency treatment.39 The operation therefore constituted an unlawful physical invasion of plaintiff's person.40 Although the procedure was skillfully executed and produced beneficial results, the lack of authorization rendered the touching wrongful under civil standards.41
The court correctly distinguished the civil claim from criminal assault, noting that an unlawful intent need not be shown to sustain recovery in tort.42
The operation performed without consent constituted an assault and battery.43
Whether the trial court properly granted a new trial on the ground that the damages awarded were excessive?44
In actions for unliquidated personal-injury damages, a trial court may grant a new trial when the verdict appears clearly excessive and given under the influence of passion or prejudice.45 Such rulings rest in the sound discretion of the trial court and will be reversed only upon a showing of abuse.46
Yes. The jury returned a verdict of $14,322.50 in this personal injury action.47 After reviewing the evidence the trial court determined that the award was excessive.48 Applying the appropriate standard under the fourth subdivision of section 5398 of the General Statutes of 1894, the court granted a new trial without abusing its discretion.49
Because the damages were unliquidated and within the jury's discretion, the trial court's order granting a new trial was proper and is affirmed.50
The trial court properly granted a new trial on the ground that the damages awarded were excessive.51