Chambers v. Nottebaum

• Decision Date: 15 August 1957
• Docket Number: No. 57-42,57-42
• Parties: Silas E. CHAMBERS, Appellant, v. Walter NOTTEBAUM, Appellee.
• Court: Florida District Court of Appeals

Page 716

96 So.2d 716

Silas E. CHAMBERS, Appellant, v. Walter NOTTEBAUM, Appellee.

No. 57-42.

District Court of Appeal of Florida, Third District.

Aug. 15, 1957.

Rehearing Denied Sept. 13, 1957.

George S. Okell, Sr., Miami, for appellant.

Warren, Klein & Moore, Miami Beach, for appellee.

CARROLL, CHAS., Chief Judge.

Appellant was the defendant in the court below, against whom a jury verdict was rendered. Plaintiff was an adult college student, who was operated on for appendicitis by the defendant surgeon. He sued, alleging trespass to the person, claiming that a resulting permanent injury in the form of a partial paralysis of one of his legs was caused by the use of a spinal anesthetic administered by defendant, allegedly contrary to his express instructions.

The plaintiff's case was not one of malpractice but for trespass to the person, as pointed out in Donald v. Swann, 24 Ala.App. 463, 137 So. 178, 180, certiorari denied 223 Ala. 493, 137 So. 181, which said:

'* * * The distinction lies in the fundamental difference between an action for malpractice and an action for trespass to the person. Trespass to the person is an intentional act which is unlawful, while malpractice arises on account of negligence. Hershey v. Peake, 115 Kan. 562, 223 P. 1113.'

See also, Cady v. Fraser, 122 Colo. 252, 222 P.2d 422.

The defendant's answer contained a denial; contended that any restrictions respecting the use of an anesthetic had been released by the plaintiff himself or through his agent; and charged plaintiff with contributory negligence.

Based on his eighteen assignment of error, appellant has stated six questions here. We reduce them to these three: (1) sufficiency of the evidence; (2) failure to include an essential charge to the jury, and (3) a departure in pleading and variance in proof.

In determining the question of liability the jury was required to decide a number of issues on which there was conflicting testimony.

The plaintiff suffered from a lame appendix, for which he consulted the defendant a number of times during the summer of 1951, the year of the operation, while attending a local university summer school. In the middle of August, when he was through school for a period of weeks, it was his testimony that it was suggested by the doctor that he have his appendix taken out at that time for convenience. Plaintiff denied that there was any flare-up or emergency, but the testimony given by the doctor was to the effect that the plaintiff's condition was acute and an emergency situation had arisen.

The plaintiff and his mother testified that when the operation was arranged, on that day in August, the plaintiff informed the doctor that he would not permit a spinal anesthetic, and that the doctor agreed not to use that type of anesthetic. A second conflict was produced in the evidence when the doctor denied that, and testified he did not recall any such discussion.

A third conflict in the evidence related to the circumstances in connection with the plaintiff's mother signing for his admission at the hospital, which included an authority to use any anesthetic determined upon by the doctor. She was not acting for a minor. He had passed his twenty-first birthday. Acting for him as his agent, if the mother signed the authority to use any anesthetic, with his knowledge and consent, or otherwise under circumstances so as to bind him on that feature, it could operate to release any contrary instructions previously given about the spinal anesthetic. On that feature, the plaintiff testified that he was not in the room when she signed the paper in the hospital; that what she signed concerning anesthetics was not within his knowledge; and that his authority to her was limited to having her sign for his admission. His mother's testimony tends to corroborate that.

On the defendant's side there was contrary evidence, to the effect that the plaintiff was in the room; that he saw what his mother was doing; and that reference was made in his presence to the consent for the anesthetics which was included in the document his mother was signing.

The verdict for the plaintiff in this case resolved and settled those conflicts in the evidence, in favor of the plaintiff and against the defendant.

The rule is well established which prevents a doctor from operating on a patient without his express or implied consent, or in a manner contrary to the patient's express instructions. A statement of this rule was made in Wall v. Brim, 5 Cir., 138 F.2d 478, at page 481:

'* * * The law is well settled that an operation cannot be performed without the patient's consent and that one performed without consent, express or implied, is a technical battery or trespass for which the operator is liable. The obligation underlying this rule is not satisfied by a consent obtained under a mistaken diagnosis that the operation is simple and without danger, when a later diagnosis, while the patient is still conscious and no emergency exists, discloses that the operation is both difficult and dangerous. The rule extends no further than to hold that if a physician advises his patient to submit to a particular operation and the patient weighs the dangers and results incident to its performance and finally consents, he thereby in effect enters into a contract authorizing his physician to operate to the extent of the consent given but no further. The same principle which supports the holding that a surgeon performing an operation without his patient's consent, express or implied, commits a battery or trespass for which he is liable in damages, also supports the holding that a surgeon may not perform an operation different in kind from that consented to or one involving risks and results not contemplated.'

An emergency arising may furnish an exception. The effect of an emergency situation on the rule is set out in 41 Am.Jur. 222-23, Physicians and Surgeons, § 110, as follows:

'The general rule that a surgeon operates at his peril without first obtaining the consent of his patient or someone legally authorized to consent for him is qualified in its application by most courts in cases of emergency or unanticipated conditions where some immediate action is found necessary for the preservation of the life or health of the patient, and it is impracticable to first obtain consent to the operation or treatment which the surgeon deems to be immediately necessary. According to the rule laid down by some courts, if in the course of an operation to which the patient has consented the physician discovers conditions not anticipated before the operation was commenced, and which, if not removed, will endanger the life or health of the patient, he is, although no express consent is obtained, justified in extending the operation to remove and overcome such conditions. * * * In such a case, where the emergency endangers the life or health of the patient, it is the surgeon's duty to do that which the occasion demands within the usual and customary practice among physicians and surgeons in the same or similar localities, without consent of the patient * * *.'

In the case of Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92, at page 93, 52 L.R.A.,N.S., 505, a New York Court of Appeals decision, the opinion prepared by Mr. Justice Cardozo, contains the following:

'In the case at hand, the wrong complained of is not merely negligence. It is trespass. Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages. Pratt v. Davis, 224 Ill. 300, 79 N.E. 562, 7 L.R.A.,N.S., 609, 8 Ann.Cas. 197; Mohr v. Williams, 95 Minn. 261, 104 N.W. 12, 1 L.R.A., N.S., 439, 111 Am.St.Rep 462, 5 Ann.Cas. 303. This is true, except in cases of emergency where the patient is unconscious, and where it is necessary to operate before consent can be obtained. * * *.'

An early leading case on this subject was Mohr v. Williams, 95 Minn. 261, 104 N.W. 12, 14-15, 11 L.R.A.,N.S., 439, in which the court said:

' * * * It was said in the case of Pratt v. Davis, 37 Chicago Leg.News, 213, referred to and commented on in Cent.Law J. 452: 'Under a free government, at least, the free citizen's first and greatest right, which underlies all others--the right to the inviolability of his person; in other words, the right to himself--is the subject of universal acquiescence, and this right necessarily forbids a physician or surgeon, however skillful or eminent, who has been asked to examine, diagnose, advise, and prescribe (which are at least necessary first steps in treatment and care), to violate, without permission, the bodily integrity of his patient by a major or capital operation, placing him under an anaesthetic for that purpose, and operating upon him without his consent or knowledge.' 1 Kinkead on Torts, § 375, states that general rule on this subject as follows: 'The patient must be the final arbiter as to whether he will 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 recognize 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.' 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. If the physician advises his patient to submit to a particular operation, and the patient weighs the dangers and risks incident to its performance, and finally consents, he thereby, in effect, enters into a contract authorizing his physician to operate...