Mohr
v. Williams
Supreme
Court of
95
Prosser,
p. 91-94
Facts: A doctor examined the
plaintiff and found a problem with her right ear, requiring surgery, but
nothing wrong with the left ear. After
putting the plaintiff under anesthesia, the doctor found the right ear didn’t
need to be operated upon, while the left ear had a serious condition that
needed surgery, which he successfully performed. The plaintiff sued for battery and won. The trial court granted a motion for a new
trial on the basis of excessive damages, and both parties appealed.
Issue: Can implied consent be
construed on the part of the plaintiff?
Rule: Any unlawful touching of
the plaintiff constitutes battery unless it is necessary.
Analysis: The court finds that the
patient did not give implied consent for the surgery on the left ear, and that
even though there wasn’t wrongful intent, there was still technical battery.
Conclusion: The order for a new trial
was affirmed.
Notes
and Questions
1.
It would seem that negligence could only lie if the
surgeon basically did his job poorly.
The evidence shows that is not the case.
2.
I think there is implied consent here because the
surgeon is justified in taking immediate action to preserve the boy’s life. Therefore, the surgeon is not liable.
3.
Here are the circumstances under which consent is
implied.
4.
That seems to be express non-consent. Unless the surgeon has reason to believe that
the person is more or less nuts, I don’t think they have a legal duty to do the
thing they’re being told not to do. On
the other hand, they may be liable for a tort if they perform the operation
without consent.
5.
The consent forms hospitals use should be as broad
as possible. If an individual patient
won’t agree to it, there ought to be an alternative, narrower form that can be
used. There probably shouldn’t be more
than two or at most three levels of consent.
6.
Again, if the plaintiff explicitly limits consent in
this way, I think the surgeon has no legal duty to go any further than
consent has been granted.
7.
This is a surprising result, though maybe not for
8.
I think this is a problem that is best addressed by
statute.
9.
The damages for not following a “do not resuscitate
order” are appropriately minor. However,
the family should not be forced to pay for unwanted health care.
10. It’s funny if
your religious beliefs require that appropriate treatment be forced upon you.
11. Age matters
when it comes to parental consent.
12. This is a good
line to set down.
13. That’s a tough
case. It seems that the parents are
applying a very heavy amount of authority.
I don’t know where you draw the line of parental power over a minor
child. I think children know more than
most adults give them credit for and probably should be able to make up their
own minds at a younger age.