Grannum v. Berard
Decision Date | 19 January 1967 |
Docket Number | No. 38485,38485 |
Citation | 422 P.2d 812,70 Wn.2d 304 |
Court | Washington Supreme Court |
Parties | , 25 A.L.R.3d 1434 Harold GRANNUM, Appellant, v. William P. BERARD, and Jane Doe Berard, his wife, Respondents. |
Holmes, Haggarty & Shuey,
Benjamin P. Shuey, Seattle, for appellant.
Williams, Lanza Kastner & Gibbs, Henry E. Kastner, Seattle, for respondents.
This is an action to recover damages for technical assault and battery resulting from the performance of an alleged unauthorized operation on the plaintiff (appellant), Harold Grannum, by the defendant (respondent), Dr. William P. Berard, a physician and surgeon.
The complaint alleges that Dr. Berard performed a 'septal reconstruction' upon Mr. Grannum on April 20, 1963, at Cabrini Hospital in Seattle, without his consent and that as a result of the operation he has suffered permanent damage to his health.
The record shows that Dr. Daniel R. Kohli, M.D., plaintiff's personal physician, hospitalized the plaintiff following a scuffle he had with his eldest son on Saturday, April 13, 1963. Plaintiff's original complaint of severe chest pain was diagnosed as a minor muscle strain instead of the suspected coronary. He could have been released the day following admission, except that Dr. Kohli thought it advisable he remain hospitalized until his domestic problems could be somewhat settled.
Because of plaintiff's complaints regarding his nose and his difficulty in breathing through one nostril, Dr. Kohli asked the defendant to see the patient. Dr. Berard, a specialist in ear, nose and throat examined the plaintiff on Tuesday, April 16, 1963. He found an external nasal deformity in that the bony part of plaintiff's nose, the pyramid, had been broken in a childhood accident and never set. The right nasal bone was higher than the left. As a consequence of this injury the septum continued to grow in a manner markedly deflected into the right side and was obstructive to breathing. In the presence of infection, this obstruction would tend to make the plaintiff have recurrent sinusitis and sore throat. Following this examination Dr. Berard advised that corrective surgery be performed. The plaintiff agreed.
On the following day, Wednesday, April 17th, Dr. Kohli discussed the proposed surgery with the plaintiff and his oral assent was again given on that day. On the 18th of April Dr. Berard consulted with the plaintiff, at which time he selected Saturday, April 20th, for the day of the operation so that he would not miss more time from work by carrying the matter over into the next week. On Friday, April 19th, the hospital admitting nurse, Mother Pia, obtained the plaintiff's written consent to the operation, 'Authorization for Medical and/or Surgical Treatment,' (exhibit 1). The operation went ahead as planned and in terms of gravity has been termed as minor surgery.
At the trial no proof of negligence was offered and the plaintiff's theory of recovery was limited to an alleged showing of common law battery based on his claimed incapacity to consent to surgery while under the influence of drugs.
The trial court directed a verdict for the defendant and the plaintiff has appealed, contending that judgment entered on the verdict should be reversed and the cause remanded for submission to the jury on the issues of lack of consent and damages. He contends that his signature on the surgery authorization form and his indications of oral consent were ineffective, since his mental and emotional condition as affected by heavy dosages of drugs was such that he was incapable of exercising a sufficient mental faculty to make an intelligent choice whether to authorize the operation.
The rule is well established that in surgical cases, consent to such procedure must be obtained from either the patient, or, if the patient is under some disability, from a near relative capable of giving consent. 70 C.J.S. Physicians and Surgeons § 48, et seq., 1 Harper & James, Torts § 3.10, p. 235; The Law of Medical Practice § 1.05, p. 10. Such consent to surgery may be manifested in a number of ways: as an express consent the patient may sign a formal written permission or agree orally; he may give implied authority by his conduct, as in voluntarily submitting to an operation, or by failing to object. See 'Law of Hospital, Physician, and Patient,' Hayt, Hayt & Groeschel, pp. 253--54 (2d ed. 1952).
The mental capacity necessary to consent to a surgical operation is a question of fact to be determined from the circumstances of each individual case. In Peterson v. Eritsland, 69 Wash.Dec.2d 587, 419 P.2d 332 (1966), we stated:
The mental competency or capacity of an individual to execute an agreement, when challenged, presents a factual issue to be determined by the trier of the fact, with the test being whether the person in question, at the time of executing the contract, possessed sufficient mind or reason to enable him to understand the nature, the terms and the effect of the transaction. Page v. Prudential Life Ins. Co. of America, 12 Wash.2d 101, 120 P.2d 527 (1942); Harris v. Rivard, 64 Wash.2d 173, 390 P.2d 1004 (1964). This is true whether the questioned mental condition...
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