Throne v. Wandell ( 1921 )

Assault and battery: Surgical operation without patient'sconsent: Sufficiency of evidence: Damages.

1. A surgical operation without the consent of the patient, if he is in possession of his faculties and in such physical health as to be able to consult about his condition, and no emergency exists making it impracticable to confer with him, is a technical assault.

2. In an action against a dentist for technical assault, plaintiff's testimony alone, though opposed to that of three witnesses for defendant, is held sufficient to support the finding of the jury that her teeth were extracted without her consent.

3. A judgment for $3,500 is excessive for the extraction, without plaintiff's consent, of six of her teeth, all but one of which had certainly been crowned and the other probably so, all of the teeth being broken down and the nerves dead so that they could not be filled and would, as time went on, have to be extracted. The damages should be reduced to $2.000. and the case is remanded for a new trial unless plaintiff consents to such reduction. "Where a patient is in possession of his faculties and in such physical health as to be able to consult about his condition, and where no emergency exists making it impracticable to confer with him, his consent is a prerequisite to a surgical operation by his physician." 30 Cyc. 1576, 1577. An operation without the consent of a patient under such circumstances constitutes a technical assault.Mohr v. Williams, 95 Minn. 261, 104 N.W. 12. See, also, cases in note in 1 L. R. A. N. S. 439-441.

The main question, therefore, involved in this case is: Were plaintiff's teeth extracted by Dr. Wandell without her consent? In order to pass upon this question it must be borne in mind that there is no dispute in the evidence that the plaintiff was advised by Dr. Baxter to obtain an X-ray examination and not to have the teeth extracted. It is true that the card made out by Dr. Baxter and handed to the plaintiff did not indicate anything with reference to an X-ray examination. On the contrary, the card indicated on its face that the teeth were to be extracted. The evidence is also undisputed that the plaintiff, before the extraction of her teeth, did not know what the card contained, and that she entered the office of Dr. Wandell for the purpose of having an examination made of her teeth so as to ascertain the cause of the pain. She testified positively that upon entering the defendant's office she told the defendant that she had been sent by Dr. Baxter for an examination to determine the cause of the pain, and she also testified that the defendant told her he would ascertain the cause. Right here there is a very sharp conflict in the testimony of the plaintiff on one side and the testimony of the defendant and his two assistants on the other side. The defendant and his assistants testified that the defendant inquired of the plaintiff what teeth were to be extracted and that the plaintiff replied that it was indicated upon the card. This testimony of the defendant and his assistants is denied by plaintiff, and in view of the undisputed facts and circumstances in the case seems highly improbable, for if this testimony is to be believed, then knowledge was brought home to the plaintiff that she was not to submit to an examination but to an extraction of the teeth in question. Such testimony is not in harmony with the distress shown by the plaintiff immediately after ascertaining the fact that her teeth had been extracted. There is no contention on the part of the defendant that after plaintiff manifested her distress he called her attention to the claim made by him that she directed the extraction of the teeth indicated on the card. While in number the defendant has three witnesses opposed to the testimony of the plaintiff, standing alone it would appear from all the facts and circumstances in the case that plaintiff's testimony is not only highly credible, but that the jury was warranted in answering the question of the special verdict in the manner in which it did. The issue having been squarely presented to the jury by the first question in the special verdict, and there being credible evidence to support the answer of the jury thereto, such answer to such question must stand.

We now come to the error assigned based upon the amount of damages awarded by the jury. True, the court saw fit to make a material reduction in the damages. We are, however, convinced that the amount of damages in the reduced form is still greatly excessive. The teeth extracted were far from being perfect teeth. All but one of the teeth, to a certainty, had been crowned, and as to the sixth tooth Dr. Baxter was of the opinion that it also had been crowned, but he was not entirely certain on the subject. These teeth were broken-down teeth. The nerves were dead so that the teeth could not be filled. It was only a question of time when the teeth would have had to be extracted and supplanted by some artificial means. Giving due credit to plaintiff's claim of distress and humiliation and pain, we are nevertheless firmly convinced that the highest amount which the court ought to have permitted to stand in the judgment by way of damages is the sum of $2,000.

The judgment of the circuit court is therefore reversed, and the case remanded for a new trial unless defendant, within twenty days after receiving written notice of the filing of theremittitur in the court below, serves upon plaintiff's counsel consent in writing to judgment in plaintiff's favor for the sum of $2,000 and costs as heretofore taxed. In case such consent as indicated is filed, judgment may be rendered upon application of plaintiff to the court having jurisdiction of the action, without notice.

By the Court. — It is so ordered.