Hernandez v. United States

• Decision Date: 14 February 1979
• Docket Number: No. 75-50-C5.,75-50-C5.
• Citation: 465 F. Supp. 1071
• Parties: Senovia T. HERNANDEZ, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Kansas

465 F. Supp. 1071

Senovia T. HERNANDEZ, Plaintiff, v. UNITED STATES of America, Defendant.

No. 75-50-C5.

United States District Court, D. Kansas.

February 14, 1979.

Senovia L. Hernandez, pro se.

James Buchele, U. S. Atty., Mary Briscoe, Asst. U. S. Atty., Topeka, Kan., for defendant.

MEMORANDUM AND ORDER

ROGERS, District Judge.

This is a Federal Tort Claims Act case brought pursuant to 28 U.S.C. §§ 1346 and 2671 et seq. Plaintiff alleges that he was subjected to unconsented surgery at the Veterans Administration Hospital in Topeka, Kansas. The surgery was minor in nature, consisting of the removal of a small mass from plaintiff's left breast. Plaintiff's original complaint alleged that the defendant's agents were "guilty of professional negligence, assault, battery and trespass against the person of the claimant." As noted, plaintiff does not complain of the manner in which the surgery was performed, but of the fact that he did not consent to it.

By Order of January 26, 1976, this Court denied a motion to dismiss in which defendant contended that this action is barred by the assault and battery exception to the waiver of sovereign immunity contained in 28 U.S.C. § 2680(h). 28 U.S.C. § 2680(h) states that the limited waiver of sovereign immunity contained in the Federal Tort Claims Act (F.T.C.A.) shall not apply to:

Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contractual rights.

It was recognized that a plaintiff cannot escape a § 2680(h) exception merely by labeling a cause of action as something which it is not. United States v. Faneca, 332 F.2d 872 (5th Cir. 1964) (student fired on by a group of marshals could not avoid assault and battery exception by labeling cause "negligence"); Klein v. United States, 268 F.2d 63 (2d Cir. 1959) (person illegally searched and detained could not escape assault and battery, false arrest, and false imprisonment exceptions by labeling cause "negligence"); and Alaniz v. United States, 257 F.2d 108 (10th Cir. 1958) (person shot by policeman without provocation could not escape assault and battery exception by pleading "negligence"). However, we concluded that upon the scanty pleadings and record before us at that time, we could not say that assault and battery was the sole genuine claim which plaintiff could assert. In denying defendant's motion to dismiss, we invited a summary judgment motion upon proper development of the record.

This action now comes before the Court first upon defendant's motion for summary judgment. The record before the Court consists of two depositions of the plaintiff, the deposition of plaintiff's primary witness, and the depositions of the two doctors who allegedly operated on plaintiff without his consent. The Court deems the record adequate for resolution of the summary judgment motion. We are mindful that summary judgment is to be denied unless the moving party demonstrates entitlement to it beyond a reasonable doubt. Madison v. Deseret Livestock Co., 574 F.2d 1027, 1037 (10th Cir. 1978); Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 516 F.2d 33, 36 (10th Cir. 1975). Further, the Court must examine all the evidence in the light most favorable to the party opposing the motion. Mogle v. Sevier County School Dist., 540 F.2d 478, 482 (10th Cir. 1976), cert. denied, 429 U.S. 1121, 97 S.Ct. 1157, 51 L.Ed.2d 572 (1977); Frey v. Frankel, 361 F.2d 437, 442 (10th Cir. 1966).

Defendant's summary judgment motion makes two basic arguments. First, it is contended that the record shows that plaintiff's actions constituted "implied consent." The Court concurs. There is no doubt from the depositions that plaintiff knew he was going to be operated on. He was so told by Dr. Cenni. He was placed in hospital "pajamas". He was taken to the surgical clinic. More importantly, only a local anaesthetic was applied. Plaintiff was fully awake throughout the operation and could see what was going on. He could have objected to the procedure at any time, but failed to do so. Plaintiff's testimony that he was "afraid" to object is simply not credible in light of the many objections which he did voice earlier. Plaintiff was a competent adult who was fully awake at all times. He could have objected to the procedure. He did not. He cannot now claim that he did not consent to the operation simply because the routine procedure of obtaining a written consent was somehow overlooked. Summary judgment could be granted on this ground alone, but defendant offers a second argument.

The second basis for summary judgment is defendant's reassertion of the assault and battery exception to the F.T. C.A. Although there appears to be some unresolved dispute as to whether the § 2680(h) exceptions are to be interpreted in light of federal or state law compare Ramirez v. United States, 567 F.2d 854, 856 (9th Cir. 1977) with Moffitt v. United States, 430 F.Supp. 34, 37 (E.D.Tenn.1976), it is clear that under either an unconsented surgery is normally considered to be an assault and battery. Kelly, The Physician, the Patient, and the Consent, 8 K.L.R. 405 (1960); 61 Am.Jur.2d Physicians, Surgeons, Etc., § 155 at 283 (1972). A reading of plaintiff's depositions makes it quite clear that what plaintiff claims and seeks to prove is that Drs. Cenni and Pellegrini operated on plaintiff despite being clearly told that plaintiff did not want them to do so. If the Court believed the doctors' testimony, it would find that plaintiff's claim of unauthorized surgery is barred by his consent. If the Court ignored the clear evidence of implied consent and believed plaintiff's testimony, it must find this action barred by the assault and battery exception of § 2680(h).

In his brief in opposition to the motion for summary judgment, plaintiff attempts to bring this action within the "informed consent" doctrine, citing Natanson v. Kline, 187 Kan. 186, 354 P.2d 670 (1960) and Funke v. Fieldman, 212 Kan. 524, 512 P.2d 539 (1973). In Natanson v. Kline, supra, the Kansas Supreme Court rendered a landmark decision by holding that a physician's liability for failing to inform the patient of the risks or alternatives to a proposed medical treatment should be grounded in negligence law rather than battery. As pointed out in Note, The Evolution of the Doctrine of Informed Consent, 12 Ga.L.Rev. 581, 581-582 (1978):

A cause of action for battery is stated where the patient alleges either that he did not consent to the treatment rendered or that his consent was ineffective because the physician did not inform him of what would be done to him in the course of the treatment. Where, however, the patient alleges that his consent was vitiated by the doctor's failure to disclose to him the risks of the proposed procedure of the available alternatives, his cause of action is in negligence, not battery. (emphasis supplied)

The record in this case clearly discloses that plaintiff claims that he did not consent to the treatment rendered. Therefore, his claim is battery. He cannot bring this claim within the "informed consent" line of cases, for he does not claim that he consented, but his consent was vitiated by inadequate disclosure.

In our order denying defendant's earlier motion to dismiss, we cited certain cases involving assault and battery defenses in F.T.C.A. medical malpractice cases as indicating the possibility that plaintiff might be able to evade the bar of § 2680(h). Now that the record is fully developed, it is clear that these cases do not aid plaintiff.

In Moos v. United States, 225 F.2d 705 (8th Cir. 1955), the court held that the assault and battery exception of § 2680(h) barred a plaintiff's claim after a surgeon had mistakenly operated on plaintiff's right leg when the surgery was planned for plaintiff's left leg. The Moos decision is obviously unfavorable to plaintiff. In an identical factual situation, in Lane v. United States, 225 F.Supp. 850 (E.D.Va.1964), the court took an opposite view holding that the mistake of operating on the wrong knee constituted at most a "technical" battery and was, in essence, mere negligence which was actionable under the F.T.C.A. The Lane view is generally recognized as the more reasonable approach. But our case (accepting plaintiff's testimony) involves more than a "technical" battery. This case, unlike Lane, involves an "intentional wrong" which elevates the status of the doctors' acts to the level of a full-blown battery.

In Fontenelle v. United States, 327 F.Supp. 801 (S.D.N.Y.1971), the court rejected Moos in favor of Lane, concluding that an intentional wrongful act on the part of the doctors was requisite to application of the assault and battery exception. Fontenelle does not aid plaintiff, for it was an "informed consent" case which, for reasons discussed above, is not relevant here.

Finally, in Hulver v. United States, 393 F.Supp. 749 (W.D.Mo.1975), the court faced a situation in which a doctor had operated on a spot which plaintiff testified he had told the doctor not to touch. The doctor testified that he would never operate on an area of the body which the patient told him not to touch. This left open the possibility that the doctor might have negligently operated on an area which he did not intend to touch. Therefore, summary judgment on the grounds of the assault and battery exception was denied. But see Hulver v. United States, 562 F.2d 1132, 1136 n. 2 (8th Cir. 1977) Plaintiff's testimony can only be construed as claiming that Drs. Cenni and Pellegrini intentionally operated on him after he told them not to. Plaintiff claims a wrongful...