Bennan v. Parsonnet

• Decision Date: 13 July 1912
• Citation: 83 N.J.L. 20,83 A. 948
• Parties: BENNAN v. PARSONNET.
• Court: New Jersey Supreme Court

83 A. 948

83 N.J.L. 20

BENNAN

v. PARSONNET.

Supreme Court of New Jersey.

July 13, 1912.

(Syllabus by the Court.)

Action by Harris Bennan against Victor Parsonnet. Verdict for plaintiff. Heard on rule to show cause. Verdict set aside.

The plaintiff applied to the defendant to operate upon a rupture in his left groin that had been unsuccessfully operated upon two years before by another surgeon. Upon learning that the plaintiff was a poor man, the defendant engaged to operate free of charge. At the time fixed for the operation the plaintiff was placed under the anæthetic by two assisting surgeons who, when Dr. Parsonnet came into the operating room, directed his attention to a rupture they had just discovered in the patient's right groin, which, upon examination and the employment of the usual diagnostic tests, was determined by the three surgeons to be a serious menace to the patient and likely to cause his death should strangulation occur, dangers not to be apprehended from the rupture that had once been operated upon. Dr. Parsonnet thereupon operated upon the more serious rupture, intending to operate also upon the other, which he was prevented from doing by the patient's condition under the anæthetic. The patient, upon being informed that the operation would be completed on a following day, apparently acquiesced, but later declined to go on with the operation, and brought this action against the defendant for assault and battery.

The jury under the charge of the court found that the defendant had performed an operation upon the plaintiff without his consent, and rendered a verdict of $1,000 against him.

Argued February term, 1912, before GUMMERE, C. J., and SWAYZE and GARRISON, JJ.

Philip J. Schotland, of Newark, for the rule.

Charles B. Dunn, of Paterson, opposed.

GARRISON, J. (after stating the facts as above). This verdict cannot be permitted to stand. It is against the clear weight of evidence. The trial court charged the jury that the operation was a legal wrong to the plaintiff, unless he had consented to its performance, explaining to them that such consent as to conditions discovered after the operation had actually commenced might be inferred from circumstances, and that it should be inferred if the condition thus discovered endangered the life or health of the patient, leaving to them the question whether the condition for which the defendant had operated was of this character. Upon the question thus submitted to the jury, the evidence was overwhelmingly against the verdict. The testimony of unimpeached medical witnesses that the rupture that was operated upon was a serious menace to the health of the plaintiff, and even to his life, should it become strangulated, was not even attempted to be contradicted. Upon this point the direct testimony of the witnesses, who had personal knowledge of the facts, was corroborated by that of Dr. Edward J. He, who is shown by the testimony to be a surgeon of great experience and a recognized authority in his profession.

A verdict rendered in the face of this testimony can rest only upon the assumption of superior knowledge by the jury.

The duty of the jury was to render a verdict upon the evidence, and that it did not do.

The verdict must, therefore, be set aside without regard to whether the question that was left to the jury was or was not the precise question that should have been submitted to them. We think that it was not. It is true that the judge in his charge laid down the common-law rule with substantial correctness, but it is also true that the introduction of anæthesia into the practice of surgery has modified the application of the common-law rule in certain fundamental respects of which the law must take notice.

The trial judge in his charge followed the opinion of Judge Brown in Mohr v. Williams, decided by the Supreme Court of Minnesota, 95 Minn. 261, 104 N. W. 12, 111 Am. St. Rep. 462, 5 Ann. Cas. 303, which as annotated in 1 L. R. A. (N. S.) 439, correctly presents the common-law rule upon the subject. That rule is thus stated in 1 Kinkead on Torts, p. 395: "The patient must be the final arbiter as to whether he shall take his chances with the operation or take his chances of living without it. Such is the natural right of the individual which the law recognizes as a legal one. Consent, therefore, of an individual, must be either expressly or impliedly given before a surgeon may have the right to operate."

In general justification of this common-law rule, Judge Brown says this in his opinion :

"There is logic in the principle thus stated, for in all other trades, professions, or occupations contracts are entered into by the mutual agreement of the interested parties, and are required to be performed in accordance with their letter and spirit. No reason occurs to us why the same rule should not apply between physician and patient."

Without stopping to point out the fallaciousness of the premise that a surgical operation can be contracted for or performed according to plans and specifications, it is enough to say that the entire foundation of the supposed analogy is swept away by the...