Mims v. Boland, 40637
| Decision Date | 11 September 1964 |
| Docket Number | No. 3,No. 40637,40637,3 |
| Citation | 110 Ga.App. 477,138 S.E.2d 902 |
| Parties | Jennie A. MIMS v. F. Kells BOLAND, Jr., et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. (a) (1) Under proper factual conditions and circumstances, actions against medical practitioners based on assault and battery for acts arising out of their professional conduct are recognized in Georgia.
(2) The relation of physician and patient is a consensual one, and a physician who undertakes to treat another without express or implied consent of the patient is guilty of at least a technical battery.
(3) An unauthorized and unprivileged contact by a doctor to his patient in examination, treatment or surgery would amount to a battery.
(4) In the interest of one's right of inviolability of one's person, any unlawful touching is a physical injury to the person and is actionable.
(5) In the relationship of doctor and patient consent by the patient to the touching negates the contact as an actionable tort.
(6) In this case the evidence demanded a finding that the patient had consented to the barium enema administered by the defendants. Under this factual status, there could be no actionable battery.
(b)(1) After a doctor's treatment or examination has gegun, the patient's consent previously given may be withdrawn so as to subject the doctor to liability for assault and battery if the treatment or examination is continued, provided however the physician's withdrawal under the medical circumstances then existing does not endanger the life or health of the patient.
(2) To constitute an effective withdrawal of consent as a matter of law after treatment or examination is in progress commensurate to subject medical practitioners to liability for assault and battery if treatment or examination is continued, two essential elements are required: (1) The patient must act or use language which can be subject to no other inference and which must be unquestioned responses from a clear and rational mind. These actions and utterances of the patient must be such as to leave no room for doubt in the minds of reasonable men that in view of all the circumstances consent was actually withdrawn. (2) When medical treatments or examinations occurring with the patient's consent are proceeding in a manner requiring bodily contact by the physician with the patient and consent is revoked, it must be medically feasible for the doctor to desist in the treatment or examination at that point without the cessation being detrimental to the patient's health or life from a medical viewpoint.
(3) The burden of proving each of these essentials is upon the plaintiff, and with regard to the second condition, it can only be proved by medical evidence as medical questions are involved.
(4) The evidence in this case meets neither of these two essential criteria.
Mrs. Jennie A. Mims sued Dr. F. Kells Boland, Jr., Dr. Freeman Epes and Frank Woolley to recover damages for an alleged battery that she claims occurred when the defendants persisted in performing medical examination upon her without her consent. Upon general demurrer the suit was dismissed as to Dr. Freeman Epes, and he case came to trial with the remaining parties.
Evidence introduced at the trial shows that in 1951 Dr. Boland performed surgery upon the plaintiff for cancer. In this operation he removed her rectum, most of her large colon and a third of her bladder, and created a colostomy through her abdominal wall. She previously had been operated upon at Duke University for cancer of the uterus. After the 1951 operation she remained under Dr. Boland's care, and had fairly regular examinations by him in order that any possible recurrence of the cancer might be promptly detected and prevented. Pursuant to an appointment that she had made with him, the plaintiff was examined at Dr. Boland's office on August 19, 1959, and then occurred the incident upon which this action is based.
During the examination Dr. Boland decided that a barium enema was to be administered to the plaintiff in order that X-rays of her colon show more clearly its condition. On previous occasions the plaintiff had been accustomed to taking the barium by mouth. In an X-ray picture the barium would act as a contract medium delineating the intestinal tract, but oral administration of the barium would not so distend the intestine as to show as much as possible in the picture. In the form of an enema the barium would balloon the intestine and thus reveal conditions that might be hidden in an X-ray picture taken of the intestine containing barium administered only orally.
Dr. Boland himself was not immediately present when the enema was administered. Defendant Frank Woolley, an X-ray technician employed by Dr. Boland, actually administered the enema to the plaintiff, and took the necessary X-ray pictures. Dr. James W. Pilcher, also an employee of Dr. Boland, was involved in the barium enema examination in that he determined by fluoroscopy when the defendant Woolley had sufficiently filled the colon with the barium solution. Before the administration of the enema, Dr. Pilcher also explained to the plaintiff what was to be done to her and that it would cause her a certain degree of discomfort.
In order to introduce the barium into the plaintiff's colon, it was necessary to insert into plaintiff's colostomy a bardex catheter tube, through which the barium solution would be poured. With respect to the particular manner in which plaintiff was injured, her petition reads as follows: Continuing, the petition alleges that the barium entered plaintiff's abdominal cavity, that 'Dr. Epes' (actually Dr. Pilcher) passively acquiesced in this treatment of plaintiff and that she was thus severely and permanently injured.
The trial of this case required three weeks and the jurors finally began their deliberations on the last day of the third week. They reached a verdict for the defendants within ten minutes.
The plaintiff moved for a new trial upon the general grounds and upon a number of special grounds. The motion for new trial was denied and the plaintiff excepts to that judgment.
William G. McRae and G. Seals Aiken, Atlanta, for plaintiff in error.
Greene, Neely, Buckley & DeRieux, Ferdinand Buckley, Atlanta, for defendants in error.
1. In addition to numerous special grounds, the plaintiff in error excepts to the judgment of the trial court denying movant's motion for new trial on the general grounds. We have therefore carefully reviewed the evidence and from this have concluded that final disposition of this appeal must rest on the general grounds albeit in a fashion not contemplated by the appellant.
(a) As declared by plaintiff's counsel, this case has its basis in assault and battery, not upon the theory of medical malpractice. Although the suit is against a physician and his laboratory technician for conduct within the scope of the relationship of a physician to his patient, its determination depends, not upon the principles applicable to actions for negligence or malpractice, but upon the rules relating to a suit for damages growing out of a trespass alleged to have been committed upon the person of the plaintiff. This form of action against medical practitioners has been recognized in Perry v. Hodgson, 168 Ga. 678, 148 S.E. 659 and in Keen v. Coleman, 67 Ga.App. 331, 20 S.E.2d 175.
The relation of physician and patient is a consensual...
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...the medical context, several other States have permitted such claims, adopting the two-prong test articulated in Mims v. Boland, 110 Ga. App. 477, 483-484, 138 S.E.2d 902 (1964). That court held that a medical provider could be liable for battery if a patient withdraws consent during a trea......
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