Fausette v. Grim

• Decision Date: 01 May 1916
• Parties: CORA FAUSETTE, by her Guardian and Curator, WILLIS A. JOHNSON, Respondent, v. EZRA GRIM and EDWARD GRIM, Appellants
• Court: Kansas Court of Appeals

186 S.W. 1177

193 Mo.App. 585

CORA FAUSETTE, by her Guardian and Curator, WILLIS A. JOHNSON, Respondent, v. EZRA GRIM and EDWARD GRIM, Appellants

Court of Appeals of Missouri, Kansas City

May 1, 1916

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

193 Mo.App. 585 at 596.

Original Opinion of May 1, 1916, Reported at: 193 Mo.App. 585.

Motion for rehearing overruled.

OPINION

ON MOTION FOR REHEARING.

TRIMBLE J.

--In reaching the conclusion arrived at in the foregoing opinion that plaintiff was not entitled, under the evidence adduced to go to the jury upon her charge that defendants negligently advised an operation, we have not overlooked the fact that plaintiff testified that defendants assured her the operation would not affect her pregnancy. Perhaps such false assurance that the operation would have no effect upon pregnancy might be a circumstance to be taken into consideration along with other facts in determining whether or not the operation was negligently advised and, therefore, the fact of such false assurance would not be inadmissible under a charge of negligent advice in regard to an operation. But such false representation or assurance, alone and of itself, would not be sufficient to establish the charge that the operation was unnecessary, and so palpably unnecessary, that a reasonably skilful and prudent surgeon would not have advised it. An operation might be imperatively necessary and yet, for various reasons, a patient might not be told the truth as to an incidental or auxiliary effect thereof. No doubt a patient's consent to an operation is an essential prerequisite to the surgeon's right to perform an operation, if the patient is in possession of his faculties or is in such condition that consent can be obtained. [Pratt v. Davis, 224 Ill. 300, 79 N.E. 562; Mohr v. Williams, 95 Minn. 261, 104 N.W. 12.] And if a surgeon should obtain the patient's consent by a false and fraudulent representation, the surgeon might be liable upon that cause of action. [Pratt v. Davis, supra.] In such case he would perhaps be liable to an action for deceit. [2 Am. & Eng. Ency. of Law (2 Ed.), 803; 30 Cyc. 1579.] But that is not the charge in this case. And it may be well to observe that, if it had been, no issue of whether the defendant assured plaintiff the operation would not result in an abortion was anywhere submitted to the jury.

Nor have we overlooked defendant's contention...