Lacey v. Laird

Decision Date12 December 1956
Docket NumberNo. 34737,34737
Citation139 N.E.2d 25,166 Ohio St. 12
Parties, 1 O.O.2d 158 LACEY, a Minor, Appellant, v. LAIRD, Appellee, et al.
CourtOhio Supreme Court

Syllabus by the Court.

1. Even though a surgical operation is beneficial or harmless, it is, in the absence of a proper consent to the operation, a technical assault and battery for which the patient may recover damages, but only nominal damages, and the surgeon is entitled to have the jury so instructed.

2. 'Nominal damages' are those recoverable where a legal right is to be vindicated against an invasion thereof which has produced no actual loss of any kind, or where, from the nature of the case, some injury has been done, the extent of which the evidence fails to show. 'Nominal damages' are limited to some small or nominal amount in terms of money.

3. Performance of a surgical operation upon an 18-year-old girl with her consent will ordinarily not amount to an assault and battery for which damages may be recoverable, even though the consent of such girl's parents or guardian has not been secured.

This is an action for damages originating in the Common Pleas Court of Cuyahoga County, wherein the plaintiff, Martha Lacey, a minor past 18 years of age, seeks damages against the defendant, Arthur W. Laird, through her amended petition setting up two causes of action, one for assault and battery and the other for malpractice.

For her first cause of action, the plaintiff alleges that on October 5, 1951, Laird, a surgeon, and his office secretary, Katherine Cunningham, also a defendant, performed a plastic operation upon plaintiff's nose without her consent and over her positive protests and thus violated her person and bodily integrity, and that such act was committed intentionally, maliciously and willfully.

For the second cause of action, plaintiff sets out allegations of malpractice on the part of the defendants. However, during the course of the trial, Cunningham was called for cross-examination and immediately thereafter she was dismissed as a defendant.

At the conclusion of plaintiff's case, Laird moved the court to direct a verdict for him as to each cause of action. The trial court sustained the motion as to the malpractice cause but overruled the motion as to the assault and battery cause.

The jury rendered a verdict in favor of the plaintiff on her first cause of action in the sum of $3,500, upon which verdict judgment was entered.

An appeal was prosecuted to the Court of Appeals, which court reversed the judgment of the trial court.

The cause is now in this court on the appeal of plaintiff, her motion to certify the record having been allowed.

Plaintiff, who was 18 years of age on October 5, 1951, testified that approximately a week before the operation, after seeing the advertisement of Laird in the telephone directory, in form, 'Reshape Your Nose, Plastic Surgery,' with face profiles before and after treatment, she went to Laird's office and was there interviewed by Cunningham, in which interview she, the plaintiff, advised Cunningham that she was 18 years of age, and that she did not have funds with which to pay for an operation, whereupon Cunningham advised her that a loan of money would be secured for her for that purpose; that after her conference with Cunningham a date was set for a plastic operation on plaintiff's nose, the date being October 5, 1951; and that on that date Laird performed a plastic operation on her nose without her consent and over her active protests. The plaintiff on trial testified further:

'A. I was scared, I made an attempt to jump off the chair.

* * *

* * *

'A. Well, at first, when he was sticking the needles in my nose, he was hurting me and I told him to stop it. He was hurting me. He says 'No, you sit back. You will be all right.' And after that he stuck another needle in it and I was crying. He told me it wasn't hurting me but it was.'

The testimony of Laird was to the effect that plaintiff called at his office and made an appointment for treatment; that at that time she specifically stated she was 21 years of age; and that later she called at his office on several occasions for followup treatments.

The plaintiff claims that, as a result of this assault and violation of her bodily integrity, permanent changes in the tissues and structure of her nose were made with a detrimental effect upon her physical appearance, and that she was caused to suffer severe mental shock, humiliation, depression and a general personality and nervous breakdown, as a result of which she was unable to return to her employment.

The Court of Appeals, in reversing the judgment in favor of the plaintiff and remanding the cause to the Common Pleas Court for further proceedings, rendered no opinion, but its entry states, as follows, the errors upon which it based its reversal:

'1. In rejecting testimony offered by the defendant-appellant.

'2. In charging that a minor, 18 years old, cannot consent to a simple operation.

'3. In charging that there was a technical battery in the case.

'4. In answering erroneously the question propounded by the jury; all of which was prejudicial to the substantial rights of the defendant-appellant.'

Sindell, Sindell, Renswick & Bourne and Fred D. Shapiro, Cleveland, for appellant.

Lawrence E. Appleton and Louis P. Fernberg, Jr., Cleveland, for appellee.

PER CURIAM.

Judgment affirmed.

WEYGANDT, C. J., and HART and ZIMMERMAN, JJ., concur except as to paragraph three of the syllabus.

MATTHIAS, STEWART, BELL and TAFT, JJ., concur in the syllabus and in the judgment.

HART, Judge (concurring).

The claimed errors upon which the Court of Appeals based its reversal of the judgment will be discussed in the order named by that court in its entry of reversal.

First, it is claimed that the trial court erred in refusing to admit certain evidence offered by Laird. Plaintiff in her petition charges that the operation on her nose was without her permission and consent and over her remonstrance and, in support of those allegations, testified that she protested the treatment and attempted to get out of Laird's surgical chair. To rebut such allegations and testimony, Laird, testifying in his own defense, was asked the following questions:

'Q. Now, Doctor, did you at any time forcefully and against the will of Martha Lacey perform an operation on her nose?'

'Q. Did you at any time at all perform an operation on Martha Lacey's nose without her consent?'

Objection to these questions was made by counsel for plaintiff. The trial court sustained the objections and refused to permit Laird to answer. Counsel for plaintiff claim that the court was justified in excluding such rebuttal testimony as being irrelevant and immaterial in the light of three undisputed facts in the case, namely, that Laird performed a nonemergency operation on the plaintiff; that the plaintiff was a minor at the time of said operation; and that Laird failed to secure the consent of plaintiff's parents to such operation.

It is apparent that the solution of the question here under discussion is linked up with and perhaps is dependent upon the existence or nonexistence of the second error of the trial court listed by the Court of Appeals, i. e., the charge to the jury that a minor 18 years of age cannot consent to what the court designated a 'simple' operation. The major issue presented in this case is whether, in the absence of an emergency, an operation performed upon a minor without the consent of the parents or persons standing in loco parentis is a legal wrong or a technical assault? The question has not heretofore been determined by this court.

On this subject the trial court charged the jury as follows:

'Now, the law of this state is that no person, adult or otherwise, may be opperated upon without their consent, express or implied. If a person is under the care of a reputable physician or under the care of a physician--and in an emergency your consent that that doctor use his best judgment is implied--this was not an emergency. I think no reasonable mind would disagree upon that subject. It was an operation, a corrective process, whatever you might want to call it, that was not an emergency.

'Now, the general rule is that a minor in cases such as this has no power to consent to such an operation; that the only persons who can consent for a minor, when it is not an emergency, are their parents, one or the other; that no one else in such case has any power to consent that such an operation may be performed. And so I think we must conclude as a matter of law in this case that neither of the parents having consented, expressly or implied, there being no evidence of that in this case, that there was in this case in fact a technical battery upon this plaintiff.'

Laird strenuously claims that the court erred to his prejudice in so charging on consent. In support of this claim, he cites the case of Bakker v. Welsh, 144 Mich. 632, 108 N.W. 94, 7 L.R.A.,N.S., 612, wherein the Supreme Court of Michigan stated the rule as follows:

'Where a full grown boy [age 17], accompanied by adult relatives, after several visits to a physician's office, and after due consideration, submits to the administration of an anaesthetic preparatory to the performance of a minor surgical operation, and dies during the administration of the anaesthetic, and there is nothing to indicate that his father's consent to the operation would not have been freely given if asked, and nothing to indicate to the physician that the father did not approve, the administrator of the boy's estate cannot recover damages from the physician for his death under the death act because the father's consent was not obtained.'

But it must be noted that in the later case of Zoski v. Gaines, 271 Mich. 1, 2, 260 N.W. 99, the same court, to some extent, modified the rule stated in the Bakker case, although the court did not expressly overrule it. In the Zoski case, the defendant...

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