Supreme Court of Minnesota, 1905.
95 Minn. 261, 104 N.W. 12.
Doctor is going to perform surgery on left ear, but as he is about to perform the surgery, he notices that the left ear is fine, but the right ear is the one that needs to be operated on. The patient is already under the anesthesia and the doctor goes ahead and performs the surgery on the unconsented to ear.
Can a doctor be liable for offensive touching he performs a necessary surgery that the patient will probably consent to later?
Arguments for Both Parties
Defendant argues that because there was no actuated, wrongful intent, and that the surgery was performed deftly, the defendant cannot be liable via the intentional tort of assault and battery, or negligence, respectively.
The court holds for the Plaintiff because the Defendant’s actions, while they may be perfectly reasonable under circumstances of emergency, they were not reasonable here, and thus they constituted offensive contact.
“Every person has a right to complete immunity of his person from physical interference of others except so far as contact has been given privilege by said person, and any unlawful or unauthorized touching, except it be in the spirit of pleasantry, constitutes and assault and battery.”
If it is not a medical emergency, or one of the below reasons, a doctor cannot provide treatment without consent, even if treatment is similar to which the patient has already consented. Medical care providers may act in the absence of express consent if:
- The patient is unable to give consent (unconscious, intoxicated, incompetent)
- There is serious risk of bodily harm if treatment is delayed long enough to get consent;
- A reasonable person would consent to treatment under the circumstances
- The provider has no reason to believe the patient would refuse treatment
Society wants doctors to act in the ways that they think are best, without consent of patients, during states of emergency. But consent and privilege are always preferred, and the law should deliver accordingly.