Fact pattern and procedural history

Defendant physician was asked to evaluate a condition of the plaintiff patient’s right ear and determined it to be in need of surgical treatment. After the patient was anesthetized and prepped for surgery, the physician found that the condition of her right ear did not in fact require immediate intervention but the left ear did. The physician consulted with a family doctor, who confirmed the diagnosis, and the physician completed an ossiculectomy. Upon resumption of consciousness, plaintiff sued for hearing loss and battery. A jury found for the plaintiff but the award was set aside as excessive and both parties appealed.

Questions of law

Can an action for assault and battery be sustained if there was no evil intent on the part of the defendant and the plaintiff has previously consented to a similar operation? Is the finding of a diseased condition during one operation constitute an emergency defense?

Finding

The court refused to overturn the jury’s finding of no emergency, ruling that the physician should have sought the plaintiff’s consent. Moreover, the court held that the lack of wrongful intent or negligence did not preclude a finding of assault and battery, and that there was no implied consent. Being unauthorized, the alternate surgical intervention was therein unlawful (unlike in a criminal case, in which unlawful intent would be an element). The court did note that the degree of damages need be limited to actual injuries and that the benefit she received would be a factor.

Notes

More recent courts have interpreted implied consent more broadly, and this question has become generally moot due to the explicit consent to treatment forms which have become customary in hospitals and other medical settings.