Rogers v. Sells
| Decision Date | 04 November 1930 |
| Docket Number | Case Number: 25920 |
| Citation | 61 P.2d 1018,1930 OK 487,178 Okla. 103 |
| Parties | ROGERS v. SELLS. |
| Court | Oklahoma Supreme Court |
¶0 1. Physicians and Surgeons--Liability of Surgeon Operating Without Consent of Patient or Parent or Guardian Except in Case of Emergency.
A surgeon who operates without the consent of the patient or the patient's parents or guardian, in case of a minor, is guilty of an assault and battery unless there was an emergency which prevented any delay and which emergency created an implied consent
2. Same--Burden on Defendant Surgeon to Prove Existence of Emergency.
A surgeon who has performed an operation without first obtaining the consent of the patient or the parents or guardian of a minor patient, and relies on the defense of emergency, has the burden of proof to establish the existence of an emergency by a preponderance of the evidence.
3. Same--Evidence--Expert Opinion Based on Lay Testimony as to Objective Facts.
An expert may give his opinion in answer to hypothetical questions based upon the lay testimony as to commonplace and objective facts.
Appeal from District Court, Oklahoma County; Sam Hooker, Judge.
Action by Homer Sells, an infant, by his father, G. J. Sells, against Dr. McLain Rogers. Judgment for plaintiff, and defendant appeals. Affirmed.
Thos. H. Owen and Paul N. Lindsay, for plaintiff in error.
E. G. DeParade, Burton Duncan, James H. Ross, and S. J. Clay, for defendant in error.
¶1 Homer Sells, a minor, by his father and guardian, brought this action against the defendant, Dr. McLain Rogers, to recover damages for personal injuries growing out of an operation by defendant in amputating the foot of plaintiff. The petition sets out two causes of action, the first being for trespass and assault and battery in that the defendant operated on plaintiff without plaintiff's consent or the consent of his parents The second cause of action was for malpractice, but the jury found for plaintiff on the first cause of action only, and the question of the skill of defendant is out of the case.
¶2 It appears from the record that plaintiff was a boy, 14 years of age, and was in an automobile accident some 15 miles from the town of Clinton, Okla., and suffered a broken leg some few inches above the ankle. He was taken in a car from the scene of the accident to the defendant's hospital at Clinton; with some assistance he hopped on his good leg a short distance to the car, and then hopped a short distance from the car to the hospital and was put on a cart or wheel chair and taken to a ward. Plaintiff's brother and two other persons were with him until he arrived at the hospital, and immediately after getting the plaintiff in the hospital the brother went for the plaintiff's parents, who lived some eight miles from Clinton. This accident occurred about midnight.
¶3 Dr. Rogers testified he was called to the hospital where he found the plaintiff, and on examination, found that his right leg was crushed and mangled; that the muscles, blood vessels, and nerves were torn and some of the nerves severed, and that the foot had no circulation and that he deemed an immediate amputation necessary under the circumstances in order to preserve the life and health of the boy, and amputated the foot.
¶4 He was corroborated in this testimony by two nurses and an assistant who was not a surgeon but a bacteriologist and in charge of the X-ray. No X-ray was made of the foot. Three reputable surgeons approved, by way of expert testimony, the actions of Dr. Rogers.
¶5 It was admitted by the defendant that he operated without obtaining the consent of the parents of this boy, although the defendant, together with two nurses and the bacteriologist, all testified that Dr. Rogers told the boy that an amputation was necessary and that the boy said go ahead and do whatever was right. The boy denied this.
¶6 Plaintiff, his parents, his brother, and a Mrs. Pritchard and Dr. E. C. Wilson testified on behalf of plaintiff. Plaintiff testified as to the wreck and that his leg was broken; that he climbed over the front seat of the car to bet out and that he was helped in the other car and that he wiggled his toes on his way to the hospital, as well as after he got in the hospital, and that he wiggled his toes and could both see and feel them move; that the wound bled about two tablespoonfuls; that his leg was not swollen, but gave him considerable pain; that he was in the hospital about 45 minutes after the accident, and that Dr. Bullock, an assistant at the hospital, told him that he would have to put him to sleep to set the leg. Plaintiff further testified that he did not consent to the operation or even discuss an operation, and that the next thing he knew was about nine o'clock the next morning, when he awoke and discovered, for the first time, that his leg had been amputated; that he did not see Dr. Rogers the night of the accident and did not see him until the second day after he was taken to the hospital.
¶7 Mrs. Pritchard said that she was at the scene of the accident and observed plaintiff's leg and that the bone was sticking out of his leg and through the skin about an inch; that he only bled a few drops; that the leg was not swollen and was not turning black.
¶8 Plaintiff's brother, likewise, testified that the leg was broken above the ankle; that the bone stuck out of the wound and that there was some dirt on it and that it bled very little and it was not swollen or turning black, and that nothing was said about the operation at the hospital.
¶9 Dr. E. C. Wilson, a reputable surgeon, testified hypothetically and upon the state of facts as disclosed by the lay witnesses: he contradicted the opinion of defendant and his experts, stating that he would have stopped the bleeding first and have taken an X-ray to determine the condition of the foot; that it would only take ten or fifteen minutes to make an X-ray picture and that he would have cleaned the wound and set the leg, which he said was not a difficult matter, and further stated that he did not consider it an emergency. That the only necessity for haste would be to stop the hemorrhage and that he would not have amputated the foot unless the car had mangled and destroyed the main blood vessels, and that there were four of them; that under the conditions as described by the lay witnesses, and under the treatment as indicated by himself, unless there had also arisen some involved complications he would not have amputated the leg, and he would not have operated immediately if the plaintiff was in shock. This resolves the case into a disputed question of fact, i.e., the condition of the boy's leg at the time of the operation based upon expert testimony which in turn is on the one hand based on scientific testimony, and the other on lay testimony, together with the question of the burden of proof.
¶10 The defendant seeks a reversal of this case upon three grounds.
¶11 First, that the court erred in giving instruction No. 2, which told the jury that as the amputation was admittedly done without express consent and that the defendant seeks to justify on the ground of an emergency or implied consent, that the burden was upon the defendant to prove the existence of an emergency by the preponderance of the evidence.
¶12 Second, that there was no competent evidence on the part of the plaintiff, or, In other words, that the evidence of the lay witnesses was incompetent and expert testimony based thereon was likewise incompetent.
¶13 Third, that the trial court did not approve the verdict.
¶14 This is an action in tort. There is no difference between it and that of an ordinary personal injury case. Defendant admits that he performed the operation, or committed the assault, but seeks to excuse himself or justify on the ground that there was an emergency, or, in other words, sets up an affirmative defense. This being the case, the burden was on him to prove it by the preponderance of the evidence....
To continue reading
Request your trial
-
Franklin v. U.S., 92-6056
...330, 336 (1970) (medical battery); Grannum v. Berard, 70 Wash.2d 304, 422 P.2d 812, 814-15 (1967) (same); see also Rogers v. Sells, 178 Okl. 103, 61 P.2d 1018, 1018-19 (1936) (surgery on minor without parental consent deemed a battery). We therefore conclude that, for purposes of § 2680(h),......
-
Sharpe v. Pugh, 523
...for an operation on a child. Zoski v. Gaines, 271 Mich. 1, 260 N.W. 99; Moss v. Rishworth, Tex.Com.App., 222 S.W. 225; Rogers v. Sells, 178 Okl. 103, 61 P.2d 1018; Browning v. Hoffman, 90 W.Va. 568, 111 S.E. 492; Commonwealth v. Nickerson, 5 Allen, Mass., 518; Franklyn v. Peabody, 249 Mich.......
-
Lacey v. Laird
...the operation was necessary in that if the tonsils were not removed serious results might have followed. In the case of Rogers v. Sells, 178 Okl. 103, 61 P.2d 1018, where a boy 14 years of age suffered a fracture of a leg in an automobile accident whereupon he was taken to a hospital where ......
-
Reed v. Scott
...Traction Co. v. Griggs, supra, in several cases. Clearly, a non-expert may testify as to an objective fact. In Rogers v. Sells, 178 Okl. 103, 61 P.2d 1018, 1020 (1936), this court said: A lay witness may testify to an objective fact; he certainly has the right to use his senses the same as ......