Mink v. University of Chicago

• Decision Date: 13 October 1978
• Docket Number: No. 77 C 1431.,77 C 1431.
• Parties: Patsy Takemoto MINK et al., Plaintiffs, v. UNIVERSITY OF CHICAGO et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

460 F. Supp. 713

Patsy Takemoto MINK et al., Plaintiffs, v. UNIVERSITY OF CHICAGO et al., Defendants.

No. 77 C 1431.

United States District Court, N. D. Illinois, E. D.

March 17, 1978.

On Motion to Dismiss Amended Complaint October 13, 1978.

COPYRIGHT MATERIAL OMITTED

Robert A. Filpi, Paul F. Stack, Chicago, Ill., John Cary Sims, Alan B. Morrison and William B. Schultz, Washington, D. C., for plaintiffs.

John Cadwalader Menk, Algimantas Kezelis, Menk, Bishop & Kezelis, James W. Gladden, Jr., Roger W. Barrett, Mayer, Brown & Platt, Chicago, Ill., for defendant University of Chicago.

Richard C. Bartelt, Max E. Wildman, Wildman, Harrold, Allen & Dixon, Chicago, Ill., Lane D. Bauer, John C. Monica, Steven C. Parrish, Kansas City, Mo., for defendant Eli Lilly and Co.

MEMORANDUM OPINION

GRADY, District Judge.

Plaintiffs have brought this action¹ on behalf of themselves and some 1,000 women who were given diethylstilbestrol ("DES") as part of a medical experiment conducted by the defendants, University of Chicago and Eli Lilly & Company, between September 29, 1950, and November 20, 1952. The drug was administered to the plaintiffs during their prenatal care at the University's Lying-In Hospital as part of a double blind study to determine the value of DES in preventing miscarriages. The women were not told they were part of an experiment, nor were they told that the pills administered to them were DES. Plaintiffs claim that as a result of their taking DES, their daughters have developed abnormal cervical cellular formations and are exposed to an increased risk of vaginal or cervical cancer. Plaintiffs also allege that they and their sons have suffered reproductive tract and other abnormalities and have incurred an increased risk of cancer.

The complaint further alleges that the relationship between DES and cancer was known to the medical community as early as 1971, but that the defendants made no effort to notify the plaintiffs of their participation in the DES experiment until late 1975 or 1976 when the University sent letters to the women in the experiment informing them of the possible relationship between the use of DES in pregnant women and abnormal conditions in the genital tracts of their offspring. The letter asked for information to enable the University to contact the sons and daughters of the plaintiffs for medical examination.

The complaint seeks recovery on three causes of action. The first alleges that the defendants committed a series of batteries on the plaintiffs by conducting a medical experiment on them without their knowledge or consent. The administration of DES to the plaintiffs without their consent is alleged to be an "offensive invasion of their persons" which has caused them "severe mental anxiety and emotional distress due to the increased risk to their children of contracting cancer and other abnormalities." The second count is grounded in products liability and seeks to recover damages from defendant Lilly premised on its manufacture of DES as a defective and unreasonably dangerous drug. Finally, the plaintiffs allege that the defendants breached their duty to notify plaintiffs that they had been given DES while pregnant and that children born from that pregnancy should consult a medical specialist. Throughout the complaint plaintiffs claim the defendants intentionally concealed the fact of the experiment and information concerning the relationship between DES and cancer from the plaintiffs.

Both defendants have moved to dismiss the complaint for failure to state a claim. We will deny the motions as to the first cause of action, and grant the motions as to the second and third causes of action.

Battery

We must determine whether the administration of a drug, DES, to the plaintiffs without their knowledge or consent constitutes a battery under Illinois law. The defendants argue that the plaintiffs' first count is really a "lack of informed consent" case premised on negligence. Because the named plaintiffs have not alleged specific physical injury to themselves, the defendants contend they have failed to state a claim for negligence and the count should be dismissed.² However, if we find the action to be based on a battery theory, it may stand notwithstanding the lack of an allegation of personal physical injury.

True "informed consent" cases concern the duty of the physician to inform his patient of risks inherent in the surgery or treatment to which he has consented. While early cases treated lack of informed consent as vitiating the consent to treatment so there was liability for battery, the modern view "is that the action . . . is in reality one for negligence in failing to conform to the proper standard, to be determined on the basis of expert testimony as to what disclosure should be made." W. Prosser, Law of Torts § 32, at 165 (4th ed. 1971). Nonetheless, a battery action may still be appropriate in certain circumstances. Where the patient has not consented to the treatment, it is meaningless to ask whether the doctor should have revealed certain risks necessary to make the consent an "informed" one. The distinction between battery and negligence is elucidated in Trogun v. Fruchtman, 58 Wis.2d 569, 596, 207 N.W.2d 297, 311-12 (1973):

The courts of this country have recognized essentially two theories of liability for allegedly unauthorized medical treatment or therapy rendered by physicians to their patients. The first of these theories is the traditional intentional tort of battery or assault and battery which is simply defined as the unauthorized touching of the person of another. Underlying this theory of liability is, of course, the general feeling that a person of sound mind has a right to determine, even as against his physician, what is to be done to his body. Under this theory, liability is imposed upon a physician who has performed non-emergency treatment upon a patient without his consent.

* * * * * *

The second theory of liability, permitted by a majority of courts, is grounded upon negligence principles rather than on intentional tort. . . . "This doctrine of `informed consent' . . . concerns the duty of the physician or surgeon to inform the patient of the risk which may be involved in treatment or surgery."

As for the application of the distinction, we find the analysis of the court in Cobbs v. Grant, 8 Cal.3d 229, 104 Cal.Rptr. 505, 512, 502 P.2d 1, 8 (1972), persuasive:

The battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented. When the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present. However, when the patient consents to certain treatment and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears; rather, the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information. In that situation the action should be pleaded in negligence.

Illinois courts have adopted the modern approach to true informed consent cases, and have treated them as negligence actions. Green v. Hussey, 127 Ill.App.2d 174, 262 N.E.2d 156 (1970); Miceikis v. Field, 37 Ill.App.3d 763, 347 N.E.2d 320 (1976). However, they have not overruled earlier cases which recognize a cause of action in battery for surgery performed without a patient's consent.³ Pratt v. Davis, 224 Ill. 300, 79 N.E. 562 (1906); Church v. Adler, 350 Ill.App. 471, 113 N.E.2d 327 (1953). Thus, it appears the two separate theories continue to exist in Illinois, and battery may be the proper cause of action in certain situations, for example, where there is a total lack of consent by the patient.⁴ See, Illinois Pattern Jury Instructions: Civil, Comment to § 105.05, at 327.

The question thus becomes whether the instant case is more akin to the performance of an unauthorized operation than to the failure to disclose the potential ramifications of an agreed to treatment. We think the situation is closer to the former. The plaintiffs did not consent to DES treatment; they were not even aware that the drug was being administered to them. They were the subjects of an experiment whereby non-emergency treatment was performed upon them without their consent or knowledge.

This case is thus distinguishable from the other DES cases cited by the defendants. There is no indication that the plaintiffs in Rheingold v. E. R. Squibb & Sons, Inc., 74 Civ. 3420 (S.D.N.Y.1975) and Needham v. White Laboratories, 76 C 1101 (N.D.Ill. 1976), were unwitting participants in a drug experiment. The plaintiffs in this action are in a different position from patients who at least knew they were being given some form of drug. The latter must rely on a negligence action based on the physician's failure to disclose inherent risks; the former may bring a battery action grounded on the total lack of consent to DES drug treatment. Accordingly, we will analyze the plaintiffs' first cause of action under a battery theory.

Battery is defined as the unauthorized touching of the person of another. To be liable for battery, the defendant must have done some affirmative act, intended to cause an unpermitted contact. "It is enough that the defendant sets a force in motion which ultimately produces the result. . . . Proof of the technical invasion of the integrity of the plaintiff's person by even an entirely harmless, but offensive, contact entitles him to vindication of his legal right by an award of nominal damages, and the establishment of the tort cause of action entitles him also to compensation for the mental disturbance inflicted upon him." W. Prosser, Law of Torts § 9, at 35 (4th ed. 1971).

"The gist of the action for battery is not the hostile intent of the defendant, but rather the absence...