Corn v. French
Citation | 289 P.2d 173,71 Nev. 280 |
Decision Date | 27 October 1955 |
Docket Number | No. 3809,3809 |
Parties | Ruth CORN, Appellant, v. James B. FRENCH, Respondent. |
Court | Supreme Court of Nevada |
Emilie N. Wanderer, Las Vegas, for appellant.
Morse, Graves & Compton, Las Vegas, for respondent.
Plaintiff sued defendant for the unauthorized and unnecessary amputation of her right breast, alleging that the operation was contrary to her desire and consent and without making an appropriate diagnosis to ascertain presence of malignancy therein, it appearing from a post-operation pathological analysis that there was no malignancy. After the plaintiff had completed the presentation of her evidence, the court granted a motion for involuntary dismissal on the ground that upon the facts and the law the plaintiff had failed to prove a sufficient case for the jury. Rule 41(b), N.R.C.P. Plaintiff has appealed from that judgment of dismissal. Although she assigns a number of errors claimed to be prejudicial and although numerous points are discussed by both parties, we feel that the issue is narrowed to the question whether the jury could have found from the evidence presented by the plaintiff and the inferences reasonably to be drawn therefrom (1) that defendant had performed the operation without her consent and contrary to her instructions, and (2) that the defendant had been negligent in failing to make a biopsy or obtain a pathological examination of the tissue from plaintiff's breast before proceeding with the radical operation. We conclude that on both of these issues there was sufficient evidence to go to the jury, and it was therefore error to grant the motion for involuntary dismissal.
(1) Plaintiff testified that on August 12, 1950 she had an appointment with defendant at the latter's office at Boulder City, Clark County, Nevada: She then identified a document as the one which she had signed and which reads as follows: 'I hereby give my consent to James B. French, M.D., to perform an operation for mastectomy and hemorrhoidectomy upon myself, and to do whatever may be deemed necessary in his judgment.' It was witnessed by her husband and a hospital nurse. She testified further:
After the removal of her breast she testified to a subsequent conversation with Dr. French at the hospital and she understood him to say that she had had cancer but that he had removed it; that he had got it early and got every bit of it. She testified to a later conversation with the doctor at his office in Boulder City concerning some lumps on her ribs.
Junelle Sherwood testified that she was present at the hospital on August 14, 1950, and recalled the conversation between Mrs. Corn and Dr. French, in which she participated. She stated: 'I asked [Dr. French] if he was going to make a test on Mrs. Corn before--test of her breast, and he said that he was, he always did in that case.' She was unable to remember anything further, but on the following day she was recalled and testified:
Plaintiff's theory of this issue is, first, that when she signed the written consent to the operation she had never heard and did not know the meaning of the word mastectomy, and, secondly, that in any event she clearly and unmistakably made known to the defendant that he was just to make a test of the breast and that his answers showed that he completely understood such instructions; that the witness Junelle Sherwood substantially corroborated her testimony; that the jury had the right to believe this testimony and to determine that the operation was unauthorized. The trial court's reaction to this contention, when made in opposition to the motion to dismiss was as follows: Plaintiff's contention however is not that she had a right to repudiate her consent but that, even assuming that she signed the written consent with full knowledge of its meaning, she was not precluded from canceling or withdrawing it before the operation. Such right is not seriously denied by defendant. We gather that the court completely discredited the testimony of the plaintiff and her witness. Whatever right the court might have had to do this on a motion for new trial or under other possible circumstances, the rule is clear on motion for involuntary dismissal that the motion admits the truth of plaintiff's evidence and all inferences that reasonably can be drawn therefrom and that the evidence must be interpreted in the light most favorable to plaintiff and most strongly against defendant. 70 C.J.S., Physicians and Surgeons, § 63--Questions of Law and Fact, p. 1010, Valdez v. Percy, 35 Cal.App.2d 485, 96 P.2d 142. The issue of whether the plaintiff had withdrawn her consent should have gone to the jury.
(2) In any event, as 'the consent did not foreclose inquiry into negligent conduct in determining the advisability or necessity for the operation', Valdez v. Percy, 35 Cal.2d 338, 217 P.2d 422, 425, we turn next to the question as to whether there was sufficient evidence to go to the jury on the question of the defendant's alleged negligence in failing to make a biopsy or to have a pathological analysis of the breast tissue made as an aid to his diagnosis before performing the radical operation. The reaction of the learned trial judge to this was as follows: 'The testimony of Dr. Hemington, the plaintiff's own witness, was to the effect that he would have done the same thing under the same circumstances. That is, remove the breast without biopsy. And plaintiff, of course, is bound by that testimony and could not impeach that testimony by calling in some other doctor.
'It seems to me that no thought of bringing this suit ever arose until the pathologist's report showed that what had been taken from Mrs. Corn wasn't malignant, and when that proved to be the case why she thought that possibly she would still be alive today if her breast had not been removed, and it was unnecessary to remove it.
Respondent's position is stated by him as follows: ...
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