Lewis v. Hendricks

GRIFFIN, J. Plaintiffs, husband and wife, brought this action against defendant, an osteopathic physician and surgeon, for damages. The first three causes of action allege that defendant has been guilty of malpractice upon Mrs. Lewis. The other three are based on the claim that defendant performed an operation upon her without her consent. A jury verdict was returned in favor of defendant. On this ap'peal, the one question involved is the giving of certain instructions offered by defendant which plaintiffs claim were prejudicially erroneous.

Before the selection of the jury, the trial court, in explaining the nature of the action to the jury, stated that it was what is commonly known as a malpractice case, and that the complaint alleges that the defendant was negligent. No mention was made of the last three counts pertaining to the lack of consent. The court, in instructing the jury, at plaintiff’s request, in effect instructed it in several different instructions that by undertaking professional service to a patient, a physician and surgeon impliedly represents that he possesses that degree of learning and skill ordinarily possessed by physicians and surgeons of good standing, practicing in the same locality; that it is his duty to use the care ordinarily exercised in like cases by reputable members of the profession practicing in the same locality; and that a violation of any of these duties is a form of negligence called malpractice. It then concludes with the clause:

“If you would find that the defendant failed in any of the duties I have mentioned, and that such failure was a proximate cause of injury to the plaintiff, then your verdict must be in plaintiff’s favor.”

The court then gave plaintiffs’ requested instruction that:

“When an adult patient is in possession of her faculties and in such physical health as to be able to consult about her condition, and no emergency exists making it impracticable [586]to confer with her, her consent is necessary to authorize a surgical operation upon herself.

“If a surgeon perforins an operation on such a person without her consent, the surgeon’s acts in so doing are an assault and battery, and he will be liable in damages for any injury proximately resulting from the operation. (B.A.J.I., 1950 Supp. 214-P.)”

It should be here noted that the court refused to give defendant’s proffered instruction on this same subject matter, i. e.: