Brief Fact Summary.
Helmer Bang suffered from urinary problems and after several consultations with various doctors, he ultimately saw Frederic E. B. Foley, who after examinations performed a prostate gland operation. The operation involved cutting Bang’s spermatic cord, which was never communicated to Bang nor consented to by Bang.
Synopsis of Rule of Law.
A patient should be given the opportunity to decide whether or not an operation is to be performed after having been given information of alternative options. Exceptions include when the physician/surgeon are unable to determine alternative solutions prior to an operation and in immediate emergency situations. Without falling under an exception, a patient’s consent to an operation (or someone legally authorized to consent on patient’s behalf if patient is not competent/able to) is required.
Where a physician or surgeon can ascertain in advance of an operation alternative situations and no emergency exists, a patient should be informed of the alternative possibilities and given a chance to decide before the doctor proceeds with the operation.View Full Point of Law
Plaintiff is Helmer Bang. He was suffering from urinary problems and consulted with a doctor, who referred him to the hospital to have a cystoscopic exam. Two local doctors at the hospital performed this exam. These doctors informed Plaintiff of an enlarged prostate gland and pain in the bladder. These doctors gave two recommendations of where to go to have tissue removed from the prostate gland as a remedy. One of these options was Frederic E. B. Foley (Defendant), whom Plaintiff met with. Defendant performed a prostate exam and also wanted a cystoscopic exam to be done and referred him to Miller Hospital to make further findings in order to determine whether a prostate operation was necessary. Defendant did not have any conversation with Plaintiff about the spermatic cord. Defendant did not remember informing Plaintiff of the details/procedure of a prostate operation. Defendant testified there was no immediate emergency or life threatening conditions for Plaintiff’s operation. Plaintiff filed a cause of action for assault/unauthorized operation by Defendant seeking damages. Defendant made a motion for a directed verdict for insufficient evidence to prove negligence/any cause of action against him. Trial court granted (and treated it as a motion to dismiss on the merits). District court denied Plaintiff’s motion to either vacate the court’s dismissal of the cause of action against Defendant or for a new trial. Plaintiff appealed.
Whether the question of if an assault or unauthorized operation occurred is a question of fact to be decided by the jury.
Determining if Plaintiff consented to the operation performed was a question of fact for the jury to decide. The trial court erred in dismissing the action. Reversed. New trial granted.
This Court references the case Mohr v. Williams, which reasoned that doctors must be given â€œreasonable latitudeâ€ in performing their duties â€œso as to not unreasonably interfere with the exercise of [their] discretionâ€ and to not limit them in emergency situations from acting according to their best judgment â€œfor the welfare of the patient.â€ There are emergency situations when a patient’s consent is deemed implied â€œas might reasonably be necessary for the preservation of his life or limb.â€ These situations could occur prior to an operation, for instance if a patient is not conscious, or, if a life-threatening situation occurs during an operation. In this case, the patient was not at risk of an immediate life-threatening emergency. The operation of severing Plaintiff’s spermatic cords, which causes sterilization, should have been consented to after being explained to Plaintiff. In explaining the operation, the doctors should have also informed Plaintiff of the risk of infection without doing the operation. Plaintiff should have been given the opportunity to consent after being given all information and all alternative options/outcomes.