Franklyn v. Peabody

• Decision Date: 24 January 1930
• Docket Number: No. 106.,106.
• Citation: 228 N.W. 681,249 Mich. 363
• Parties: FRANKLYN v. PEABODY.
• Court: Michigan Supreme Court

249 Mich. 363

228 N.W. 681

FRANKLYN

v.PEABODY.

No. 106.

Supreme Court of Michigan.

Jan. 24, 1930.

Error to Circuit Court, Wayne County; Jesse H. Root, Judge.

Action by Vera Franklyn against Charles W. Peabody. Judgment for defendant, notwithstanding a verdict for plaintiff, and both parties bring error; defendant's assignment to be considered only in case the judgment is not affirmed. Reversed, and new trial ordered.

Argued before the Entire Bench.

Longley & Middleton, of Detroit, for defendant.

Colby & Costello, of Detroit, for plaintiff.

WIEST, C. J.

Plaintiff had a stiff finger, resulting from an injury. She visited the Ford Hospital in the city of Detroit, and was advised by Dr. Peabody, defendant herein, that an operation would be beneficial. Defendant is a member of the staff of the hospital, and had charge of the assigning of such cases to assistant doctors. Plaintiff's case was assigned to Dr. Fallais. The day of the operation, Dr. Fallais and Dr. Peabody were otherwise engaged, and Dr. Johnston was assigned to perform the operation. An anesthetic was administered. Dr. Johnston opened the finger and palm of the hand and discovered that the superficial and deep tendons adhered together, and to separate them it was necessary to sheath each in added fascia. Upon discovering this, Dr. Johnston summoned Dr. Peabody, and the two doctors discussed the need of added fascia, and Dr. Peabody agreed with Dr. Johnston that it would be necessary, in order to obtain the best results, to remove some fascia from a limb of plaintiff and transplant it to her hand, and also told Dr. Johnston to go ahead and perform the operation in that manner. The plaintiff was unconscious, and therefore not consulted, and Dr. Johnston made an incision in her right thigh, obtained therefrom fascia lata, and sheathed the tendons of the finger.

Plaintiff claims that the operation on her thigh resulted in a muscle hernia, causing her pain and disability, and brought this suit against the Ford Hospital and Dr. Peabody to recover damages.

The trial judge discharged the Ford Hospital, did not grant the motion in behalf of Dr. Peabody for a directed verdict, and submitted the case to the jury, and plaintiff was awarded a verdict of $10,000 for the injury to her leg.

The declaration counted on malpractice and an assault and battery or trespass to plaintiff's person by an unauthorized operation upon her thigh. The proofs were directed to the latter count, and the recovery was for an assault and battery. After verdict, defendant renewed his motion and asked for judgment in his favor non obstante veredicto, and also moved for a new trial. The court entered judgment for defendant, and plaintiff reviews by writ of error. Defendant also assigns error upon the trial, to be considered only in case the judgment is not affirmed.

Accepting plaintiff's claim as true, Dr. Johnston, in operating upon her thigh, without her consent, committed a trespass to her person for which he would be liable to respond in damages in an action for assault and battery. Authority to this effect is ample.

The governing rule, supported by modern authority, is well stated in 48 C. J. p. 1130: ‘Where a patient is in possession of his faculties and in such physical health as to be able to consult about his condition, and no emergency exists making it impracticable to confer with him, his consent is a prerequisite to a surgical operation by his physician; and a surgeon who performs an operation without his patient's consent, express or implied, commits an assault for which he is liable in damages.’

An exception to the rule exists, and the extent thereof is also stated in 48 C. J. p. 1131: ‘Where an emergency arises calling for immediate action for the preservation of the life or health of the patient, and it is impracticable to obtain his consent or the consent of any one authorized to speak for him, it is the duty of the physician to perform such operation as good surgery demands, without such consent. And if, in the course of an operation to which the patient consented, the physician discovers conditions not anticipated before the operation was commenced, and which, if not removed, would endanger the life of the patient, he will, although no express consent be obtained or given, be justified in extending the operation to remove and overcome them. * * * The implied appointment of the surgeon as the legal representative, during the period of unconsciousness, of a patient who has appointed no other person, does not give the surgeon a license to operate on the patient against his will or by subterfuge, or to perform a different operation than that consented to, or one involving risks and results not contemplated.’

See 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;Pratt v. Davis, 224 Ill. 300, 79 N. E. 562,7 L. R. A. (N. S.) 609,8 Ann. Cas. 197;Rolater v. Strain, 39 Okl. 572, 137 P. 96,50 L. R. A. (N. S.) 880.

The stated rule exacts careful diagnosis by the surgeon, and discovery, as far as possible, of the nature and extent of the proposed operation and consent thereto by the patient.

The operation on plaintiff's finger was not a major one, and the disclosure, when the finger and palm were opened, presented no emergency authorizing an operation on her thigh to obtain tissue for the finger. The case does not present the essentials of an implied authority arising from discovery, while performing an operation, of a condition so serious to the life or health of the patient as to demand a more extended or a further operation without consulting...