Arballo v. Nielson

GRIFFIN J.

This action was brought by plaintiff and appellant Exiquia Arballo, mother of Ignacio Arballo, deceased, who at the time of his death was single and 46 years of age. Plaintiff was his sole heir at law. Defendants and respondents are two practicing physicians and surgeons who, it is alleged, operated upon deceased, without the consent of plaintiff, thereby committing a technical assault upon the son, who died shortly after the operation. The trial was had without a jury. Judgment went for defendants and plaintiff appealed.

The record comes before us upon a settled statement in lieu of a reporter’s and clerk’s transcript, under rule 7 of the Rules on Appeal.

The narrative statement, signed and certified by the trial judge, recites that defendants, on October 13, 1944, examined Ignacio and that the examination revealed a “mass in the lower right abdomen”; that the patient was suffering from nausea; that he entered the sanitarium for further treatment and that a eystoscopie examination revealed that the patient’s bladder was occupied by a stone approximately the size of a baseball; that throughout the examination he was conscious and in full possession of his mental faculties; that defendants advised the patient of the true condition and informed him that he could not survive if the stone was not immediately removed; that Ignacio consented to the operation; that an aggravated vesical abscess was found; that the patient died on October 22, 1944; that had said operation not been performed the patient would not have survived for more than a few days; and that at all times Ignacio was in the sanitarium his mother, plaintiff herein, or an adult sister, was present.

It further recites that plaintiff testified that she told Dr. Nielson that her son told her that he did-not want to be

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operated upon; that she told the doctor the same thing; that plaintiff spoke imperfect English; that Dr. Nielson did not understand anything said to him by plaintiff, if such conversation did take place; that she was absent from the sanitarium when the examination took place. It then recites that during the cystoscopic examination a nurse, employed by the sanitarium, and in charge of the case, advised Ignacio’s sister, who was present, that her brother was seriously ill and that the doctors believed that the only possibility of saving his life was an immediate operation; that there was evidence produced by plaintiff that the sister then signed a written consent to operation procedure; that the sister testified that she told the nurse that the signed consent should be executed by the plaintiff (mother), but that the nurse insisted that she sign it.