Mohr v. Williams
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.
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.