Danielson v. Roche

[833]

GOODELL, J.

This appeal is from a judgment in favor of defendant A. W. Morton for costs. A new trial was denied.

On December 31, 1947 appellant filed this action against Dr. A. W. Morton, Sts. John Hospital, and four fictitious defendants, for damages arising out of an abdominal operation performed on appellant by Dr. Morton in said hospital on February 26, 1935. A nonsuit ivas granted as to the hospital and no further action was taken thereon.

After this appeal was taken Dr. Morton died and his executors were substituted in his place.

On or about February 25, 1935 appellant, then living in a hotel in San Francisco, was in severe abdominal pain and Dr. Morton was summoned. He called, accompanied by a nurse, examined the patient, diagnosed her case as appendicitis and salpingitis, and advised an immediate operation. She was taken to the hospital and before the operation she signed the following writing: “I, the undersigned, having-engaged Dr. Morton, physician and surgeon, do hereby grant him the authority and give my consent for him to administer ■and perform all and singular any treatments or operation to or upon me which may now or during the contemplated services be deemed advisable or necessary.” Appellant testified that this writing was brought to her room by a nurse before the operation, that she had read it, and that the signature thereon was hers.

While operating, and while appellant was under a spinal anesthetic, Dr. Morton found that her Fallopian tubes were full of pus, which was a condition more serious than the inflammation which he had diagnosed. He therefore removed not only the appendix, but the diseased part of both tubes. It is that part of the operation involving the tubes which forms the basis of this action as appears from the following allegation: “That no medical necessity, justification or excuse existed for cutting and tying said fallopian tubes of plaintiff; that no medical or surgical emergency was involved therein; that plaintiff was then and there of full age and of sound mind, fully capable of consenting to any operation that might be necessary; that her consent was not obtained by said defendant, A. W. Morton ... to the said operation insofar as the same involved the fallopian tubes of plaintiff. ’ ’