Schmeltz v. Tracy

• Decision Date: 05 March 1935
• Citation: 177 A. 520,119 Conn. 492
• Court: Connecticut Supreme Court
• Parties: SCHMELTZ v. TRACY.

177 A. 520

119 Conn. 492

SCHMELTZ v. TRACY.

Supreme Court of Errors of Connecticut.

March 5, 1935

Appeal from Superior Court, Hartford County; Frank P. McEvoy, Judge.

Action by Marjorie F. Schmeltz, guardian, against Dwight W. Tracy for damages for injuries alleged to have resulted from the negligent and unauthorized surgical treatment of plaintiff's minor daughter. From a verdict and judgment for defendant, plaintiff appeals.

No error.

Argued before MALTBIE, C.J., and BANKS, AVERY, HAINES, and JENNINGS JJ.

John A. Danaher, of Hartford, for appellant.

Cyril Coleman and Lawrence A. Howard, both of Hartford, for appellee.

HAINES, Judge.

The defendant, a physician and surgeon in Hartford specializing in dermatology, was consulted by the plaintiff in the fall of 1931 in regard to a skin ailment of her minor daughter which was diagnosed by the defendant as acne.

The first four paragraphs of the first count of the complaint allege a contract with the defendant for the treatment of the acne, but there is no further reference to this contract anywhere in the complaint, and the court correctly told the jury, " there is now no claim before you as to any lack of treatment in regard to the acne." The remainder of the first count alleges the negligent removal of several moles from the face of the girl, with resulting injuries to her. The second count alleges that these same moles were removed by the defendant without and against the consent of the plaintiff or of the girl and with like resulting injuries.

The court directed the jury to disregard the first count for the reason that no proof of negligence had been made, and this is assigned as error. Before correction by the court, it appeared from the finding that the plaintiff offered evidence to prove and claimed to have proved that the girl's skin was of a type which scarred easily; that the defendant knew or should have known this; and that conservative practice required that, under such circumstances, one mole should first be removed and the result awaited before removing others. Later, however, the court struck out this finding as to the susceptibility of the girl's skin and the defendant's knowledge of it. This latter action of the court is also assigned as error, but the evidence of record sustains the court, and there is now nothing in the finding to show that the court was in error in instructing the jury to disregard the first count based on negligence.

Relying upon seven paragraphs of the charge which are assigned as error, the plaintiff contends that the court misconceived the nature of the second count and inadequately and incorrectly charged the jury thereon. The jury were reminded that there was a flat contradiction in the evidence as to whether consent to the operation was given, and were told that that was the precise question for them to decide since the plaintiff and the girl had the right to be consulted before the moles were removed. After some further comments, the court said: " If you find that the defendant removed these moles without the permission of the plaintiff and her mother or either of them, then you will come to the consideration of the effect of that removal. Just what difference in the situation did that cause? What was the altered condition of the girl Colette? She had a right, of course, to go on bearing her countenance just as it was if she wished, and if through the action of the defendant in doing something which he had no permission to do she sustained injury and damage, she is entitled to fair compensation which will put her as nearly as you can by your verdict in the position in which she was originally. So you see how essential it is for you to determine in the first place what her condition and position was before she was operated upon. *** Now it must appear also, if you are going to award the plaintiff damages, that not only was her injury due to the act of the defendant in operating upon her without her permission, but that the action of the defendant or operation by him was the proximate cause of the injury to the plaintiff." Later in the charge the court also said: " The precise claim before you is as to whether or not there was consent or permission given, *** whether or not an injurious result flowed from that and whether or not the injurious result, if you find there was such, was occasioned by the actions of the defendant or whether there was this intervening cause of the interference of the plaintiff," referring to the defendant's claim that the scarring was caused by the picking of the scabs by the girl, contrary to his orders. Finally, the jury were told that if they found that the injuries alleged did result from the act of the defendant and that the defendant acted without consent and permission, then they should give compensation.

From these instructions, the jury must have understood that they could not give a verdict for the plaintiff unless both the lack of consent and the damages which were alleged were established. This was erroneous, for if the lack of consent was established, the removal of the moles was in itself a trespass and had the legal result of an assault. " Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages." Schloendorff v. New York Hospital, 211 N.Y. 125, 129, 105 N.E. 92, 93, 52 L.R.A (N. S.) 505, Ann.Cas. 1915C, 581; Pratt v. Davis, 224 Ill. 300, 79 N.E. 562, 7 L.R.A. (N. S.) 609, 8 Ann.Cas. 197; Mohr v. Williams, 93 Minn. 261, 104 N.W. 12, 1 L.R.A. (N. S.) 439, 111 Am.St.Rep. 462, 5 Ann.Cas. 303. Even if it be shown that the substantial injuries which the plaintiff suffered are due to her own improper conduct, this is not a defense to a charge of assault; the issue is whether the assault was committed. Proof of the assault entitles the plaintiff to a verdict for at least nominal damages and to such special damages in addition as the plaintiff has alleged, and proved to have proximately resulted from the assault. A violation of a legal right like that alleged in the instant case imports damage. Morrow v. Ursini, 96 Conn. 219, 221, 133 A. 388; Brett v. Cooney, 75 Conn. 338, 341, 53 A. 729, 1124. The failure to instruct the jury in accordance with the above principles was erroneous, but the limit of prejudice which this failure could have caused the plaintiff in any event was the loss of a verdict for nominal damages and costs, with the latter limited to the amount of the damages. Gen. St. § 5670. We have held that errors...