Bang v. Charles T. Miller Hospital, 37215

• Decision Date: 14 February 1958
• Docket Number: No. 37215,37215
• Citation: 251 Minn. 427,88 N.W.2d 186
• Court: Minnesota Supreme Court
• Parties: Helmer BANG et al., Appellants, v. CHARLES T. MILLER HOSPITAL, Defendant, Frederic E. B. Foley, Respondent.

Page 186

88 N.W.2d 186

251 Minn. 427

Helmer BANG et al., Appellants, v. CHARLES T. MILLER HOSPITAL, Defendant Frederic E. B. Foley, Respondent.

No. 37215.

Supreme Court of Minnesota.

Feb. 14, 1958.

Syllabus by the Court.

Where a physician or surgeon can ascertain in advance of an operation alternative situations and no immediate emergency exists, a patient should be informed of the alternate possibilities and given a chance to decide before the doctor proceeds with the operation. Held under the record here that it was a question for the jury to determine whether plaintiff consented to the performance of the operation involved.

Bang, Nierengarten & Hoversten, William J. Nierengarten, Austin, for appellants.

Meagher, Geer, Markham & Anderson, O. C. Adamson, II, and David W. Nord, Minneapolis, for respondent.

Jule M. Hannaford, III, Curtis L. Roy and Dorsey, Owen, Barker, Scott & Barber, Minneapolis, amicus curiae for Minn. State Medical Assn. FRANK T. GALLAGHER, Justice.

Appeal from an order of the district court denying plaintiffs' alternative motion to vacate the dismissal of their action against Frederic E. B. Foley, herein referred as defendant, or for a new trial.

This was an action for damages for alleged assault or unauthorized operation by the defendant on his patient, Helmer Bang, referred to herein as plaintiff. The latter contends that the question as to whether he expressly or impliedly consented to the operating procedures involved was one of fact for the jury. At the close of plaintiffs' case, the defendant moved for a directed verdict upon the grounds that plaintiffs had failed to prove any actionable negligence or any cause of action against him. This motion was treated by the trial court as a motion for dismissal on the merits, which motion was granted. A similar motion was granted with respect to the other defendant, Charles T. Miller Hospital, but that action is not questioned on appeal.

The sole issue raised by the plaintiff on appeal is: Should the question of whether or not there was an assault or unauthorized operation have been submitted to the jury as a fact issue?

By way of a brief review, plaintiff began having urinary trouble in 1951 to 1952. He consulted a doctor in his home town of Austin, Minnesota, who sent him to the hospital for a cystoscopic examination which was made by two local doctors in Austin. Plaintiff testified that they informed him of an enlargement of the prostate gland and bladder soreness and recommended either Rochester or defendant in St. Paul as places he could go to have some tissue removed from the gland to overcome the trouble.

In any event, plaintiff consulted with the defendant on April 6, 1953, at the latter's office in St. Paul. The defendant testified that at that time the patient complained of diminished size and force of the urinary stream and increased frequency of urination. He said that the plaintiff described various urinary symptoms and that a rectal examination of the prostate was performed. Not being certain at that time of the exact nature of the plaintiff's ailment, the defendant informed plaintiff that he wished to make a cystoscopic examination the following day and suggested that plaintiff be admitted to the Miller Hospital in St. Paul for further investigation, which was done. He said that he informed his patient 'that the purpose of his going into the hospital was for further investigation with a view to making a prostate operation if the further examination showed that that was indicated.'

The important question for determination of the matter presently before us is whether the evidence presented a fact question for the jury as to whether plaintiff consented to the severance of his spermatic cords when he submitted to the operation. Defendant testified on cross-examination under the rules that he did not tell plaintiff at the time of the office visit, April 6, that any examination defendant had made or was going to make had anything to do with the spermatic cord, nor did he recall explaining to his patient what a prostate-gland operation involved. He also said that plaintiff's life was in no immediate danger because of his condition on that day.

He was further questioned:

'Q. Did you tell him in your office that if the later examination in the hospital the following day indicated prostate trouble it would be necessary for you as part of your operation to cut his spermatic cords? A. I am not certain that particular detail of the operation was explained to him.

'Q. Dr. Foley, is it not true that the only thing mentioned to Mr. Bang in your office was that a further examination was needed in order to confirm your diagnosis so that you would know what you were going to do next? A. That is correct.'

On the following day the operation was performed. When defendant was asked as to the procedure used, he replied:

'A. * * * the cysto-urethroscopic examination was made; following that I went over to the head of the table and talked to Mr. Bang, told him what the findings were, and that in my opinion the transurethral prostatic resection should be done and I had his consent that we proceed with that operation.

'Q. Did you at that time as I understand it now ask him for his consent? A. Yes.

'Q. * * * did you at the time you talked to Mr. Bang on the table tell him anything about what you were going to do about his spermatic cords? A. I do not recall definitely whether that particular detail of the operation was discussed with Mr. Bang or not.'

After identifying his signature to a carbon copy of some questions answered under oath by means of written interrogatories, the defendant was asked:

'Q. Were you asked the following question and did you give the following answer at that time? Did you inform Helmer Bang that in his specific case of a prostate gland resection that you intended to sever the spermatic cords of him as a part of the operation or that it was necessary to do so in his specific case? And did you so answer as follows, I did not inform Helmer Bang that as a part of the prostate gland resection it would be necessary to sever the spermatic cords of his.

'Q. Did you also answer, severance of the spermatic cords--bilateral was section (vas section) and ligation--is a routine part of this procedure in all cases of patients the age of Mr. Bang? A. Yes.

'Q. Did you give that whole answer?

'A. Yes.

'Q. Did you at the same time, Dr. Foley, were you asked the following question and did you answer as follows, this in interrogatory 6. Did you inform Helmer Bang that as a part of a prostate gland resection it would be necessary to sever the spermatic cords of his? And did you answer as follows: I do not recall that I explained to him this particular technical detail of the operation any more than its other details. But definitely I did not ask his permission to omit bilateral vas section and ligation (severance of spermatic cords)? A. Well, that is written down there as my answer.

'Q. If it is here as part of your answer would you say you did, Doctor? A. I would think so.

'Q. Did you ask his permission, Dr. Foley, to go ahead and sever the cords as part of the operation for any other reason? A. I have already said I am uncertain about that.'

While it will serve no useful purpose to go into detail with reference to all of the testimony of plaintiff and defendant, the former described his consent to the procedure as follows:

'Q. Did you on that occasion, which was the 6th of April, 1953, in Dr. Foley's office, tell Dr. Foley that he could proceed and do anything he wished as far as operating on you is concerned? A. Well, he said he would look up in there, if there was any correction needed on the bladder is what I understood he would do and I said that was o.k. on the bladder.

'Q. Did he mention the bladder? A. Well, he didn't, well, that is what I told him my trouble was.'

The patient recalled the start of the operation and, when questioned on direct...