In Mims v. Boland, Ga., 138 S.E.2d 902, 905 (1964), the plaintiff claimed she revoked her consent to a barium enema which was administered despite her revocation.Summary of this case from Coulter v. Thomas
DECIDED SEPTEMBER 11, 1964. REHEARING DENIED OCTOBER 15, 1964.
Action for damages. Fulton Superior Court. Before Judge Whitman.
William G. McRae, G. Seals Aiken, for plaintiff in error.
Greene, Neely, Buckley DeRieux, Ferdinand Buckley, contra.
1. (a) (1) Under proper factual conditions and circumstances, actions against medical practitioners based on assault and battery for acts arising out of their professional conduct are recognized in Georgia.
(2) The relation of physician and patient is a consensual one, and a physician who undertakes to treat another without express or implied consent of the patient is guilty of at least a technical battery.
(3) An unauthorized and unprivileged contact by a doctor with his patient in examination, treatment or surgery would amount to a battery.
(4) In the interest of one's right of inviolability of one's person, any unlawful touching is a physical injury to the person and is actionable.
(5) In the relationship of doctor and patient consent by the patient to the touching negates the contact as an actionable tort.
(6) In this case the evidence demanded a finding that the patient had consented to the barium enema administered by the defendants. Under this factual status, there could be no actionable battery.
(b) (1) After a doctor's treatment or examination has begun, the patient's consent previously given may be withdrawn so as to subject the doctor to liability for assault and battery if the treatment or examination is continued, provided however the physician's withdrawal under the medical circumstances then existing does not endanger the life or health of the patient.
(2) To constitute an effective withdrawal of consent as a matter of law after treatment or examination is in progress commensurate to subject medical practitioners to liability for assault and battery if treatment or examination is continued, two essential elements are required: (1) The patient must act or use language which can be subject to no other inference and which must be unquestioned responses from a clear and rational mind. These actions and utterances of the patient must be such as to leave no room for doubt in the minds of reasonable men that in view of all the circumstances consent was actually withdrawn. (2) When medical treatments or examinations occurring with the patient's consent are proceeding in a manner requiring bodily contact by the physician with the patient and consent is revoked, it must be medically feasible for the doctor to desist in the treatment or examination at that point without the cessation being detrimental to the patient's health or life from a medical viewpoint.
(3) The burden of proving each of these essentials is upon the plaintiff, and with regard to the second condition, it can only be proved by medical evidence as medical questions are involved.
(4) The evidence in this case meets neither of these two essential criteria.
DECIDED SEPTEMBER 11, 1964 — REHEARING DENIED OCTOBER 15, 1964.
Mrs. Jennie A. Mims sued Dr. F. Kells Boland, Jr., Dr. Freeman Epes and Frank Woolley to recover damages for an alleged battery that she claims occurred when the defendants persisted in performing medical examination upon her without her consent. Upon general demurrer the suit was dismissed as to Dr. Freeman Epes, and the case came to trial with the remaining parties.
Evidence introduced at the trial shows that in 1951 Dr. Boland performed surgery upon the plaintiff for cancer. In this operation he removed her rectum, most of her large colon and a third of her bladder, and created a colostomy through her abdominal wall. She previously had been operated upon at Duke University for cancer of the uterus. After the 1951 operation she remained under Dr. Boland's care, and had fairly regular examinations by him in order that any possible recurrence of the cancer might be promptly detected and prevented. Pursuant to an appointment that she had made with him, the plaintiff was examined at Dr. Boland's office on August 19, 1959, and then occurred the incident upon which this action is based.
During the examination Dr. Boland decided that a barium enema was to be administered to the plaintiff in order that X-rays of her colon show more clearly its condition. On previous occasions the plaintiff had been accustomed to taking the barium by mouth. In an X-ray picture the barium would act as a contrast medium delineating the intestinal tract, but oral administration of the barium would not so distend the intestine as to show as much as possible in the picture. In the form of an enema the barium would balloon the intestine and thus reveal conditions that might be hidden in an X-ray picture taken of the intestine containing barium administered only orally.
Dr. Boland himself was not immediately present when the enema was administered. Defendant Frank Woolley, an X-ray technician employed by Dr. Boland, actually administered the enema to the plaintiff, and took the necessary X-ray pictures. Dr. James W. Pilcher, also an employee of Dr. Boland, was involved in the barium enema examination in that he determined by fluoroscopy when the defendant Woolley had sufficiently filled the colon with the barium solution. Before the administration of the enema, Dr. Pilcher also explained to the plaintiff what was to be done to her and that it would cause her a certain degree of discomfort.
In order to introduce the barium into the plaintiff's colon, it was necessary to insert into plaintiff's colostomy a bardex catheter tube, through which the barium solution would be poured. With respect to the particular manner in which plaintiff was injured, her petition reads as follows: "Plaintiff alleges that Defendant Woolley, without her consent and over her vigorous protest, plaintiff attempting to take said tube from Defendant Woolley's hands, willfully inserted the large tube with thong-like things on the end into her colostomy in a violent manner and perforated Plaintiff's colon. . . [I]nsertion of said tube into Plaintiff's colostomy in such a violent manner tore the adhesions and mucosa around the opening of the colostomy and caused abscesses and colitis. . . Defendant Woolley, notwithstanding plaintiff's protests, maliciously, willfully, wantonly, and with a reckless, conscious, or intentional disregard for the rights, interests and welfare of the Plaintiff, violently shoved said tube into Plaintiff's colostomy, thereby injuring Plaintiff in the manner and particulars alleged. . . Plaintiff was suffering terribly from said willful action of Defendant Woolley and begged him to stop, but he kept right on and willfully poured a full quart of barium into the tube. . ." Continuing, the petition alleges that the barium entered plaintiff's abdominal cavity, that "Dr. Epes" (actually Dr. Pilcher) passively acquiesced in this treatment of plaintiff and that she was thus severely and permanently injured.
The trial of this case required three weeks and the jurors finally began their deliberations on the last day of the third week. They reached a verdict for the defendants within ten minutes.
The plaintiff moved for a new trial upon the general grounds and upon a number of special grounds. The motion for new trial was denied and the plaintiff excepts to that judgment.
1. In addition to numerous special grounds, the plaintiff in error excepts to the judgment of the trial court denying movant's motion for new trial on the general grounds. We have therefore carefully reviewed the evidence and from this have concluded that final disposition of this appeal must rest on the general grounds albeit in a fashion not contemplated by the appellant.
(a) As declared by plaintiff's counsel, this case has its basis in assault and battery, not upon the theory of medical malpractice. Although the suit is against a physician and his laboratory technician for conduct within the scope of the relationship of a physician to his patient, its determination depends, not upon the principles applicable to actions for negligence or malpractice, but upon the rules relating to a suit for damages growing out of a trespass alleged to have been committed upon the person of the plaintiff. This form of action against medical practitioners has been recognized in Perry v. Hodgson, 168 Ga. 678 ( 148 S.E. 659) and in Keen v. Coleman, 67 Ga. App. 331 ( 20 S.E.2d 175).
The relation of physician and patient is a consensual one, and a physician who undertakes to treat another without express or implied consent of the patient is guilty of at least a technical battery. See 41 Am. Jur. 220, Physicians and Surgeons, §§ 107, 108. Generally, it is settled law that an unauthorized surgical operation by a physician upon the body of his patient is a wrongful and unlawful act for which the surgeon will be liable in damages. Jeter v. Davis, 33 Ga. App. 733, 741 (6) ( 127 S.E. 898). See: 13 Ga. B. J. 13, 20; Pratt v. Davis, 224 Ill. 300 ( 79 NE 562) where the plaintiff was not advised as to the extent of surgery to be performed, and thus, did not consent to surgery more radical than she expected; Mohr v. Williams, 95 Minn. 261 ( 104 N.W. 12) where plaintiff consented to an operation on her right ear, and the physician operated on the left ear instead; Schloendorff v. Society of New York Hospital, 211 N.Y. 125 ( 105 NE 92) where the physician operated over the patient's express prohibition of any surgery at all; Rolater v. Strain, 39 Okla. 572 ( 137 P. 96) where the physician exceeded express prohibitions as to the nature and extent of the operation for which the patient had consented.
Most of the cases of battery of a patient by a physician have involved surgical operations. However, all of the cases of this and other jurisdictions, together with the general law governing assault and battery or trespass to the person, lead inescapably to the conclusion that any unauthorized and unprivileged contact by a doctor with his patient in examination, treatment or surgery would amount to a battery. In the interest of one's general right of inviolability of his person, any unlawful touching of that type is a physical injury to the person and is actionable.
In the relationship of doctor and patient, as in other situations involving a touching of another's person, consent to the act by the person affected negates the contact as an actionable tort. "As a general rule there can be no tort committed against a person consenting thereto, if that consent is free and not obtained by fraud, and is the action of a sound mind." Code § 105-1803. Byfield v. Candler, 33 Ga. App. 275 ( 125 S.E. 905). Consent to medical or surgical treatment may be manifest by acts and conduct, and need not necessarily be shown by writing or by express words. Kritzer v. Criton, 101 Cal.App.2d 33 ( 224 P.2d 808). It may be implied from voluntary submission to treatment with full knowledge of what is going on. Baxter v. Snow, 78 Utah 217 ( 2 P.2d 257).
The evidence in this case discloses that plaintiff had committed herself to Dr. Boland's care, and had been under his care for a number of years, apparently to the mutual satisfaction of doctor and patient and with previously good results. It was through her initiative that the appointment of August 19, 1959, was arranged, and manifestly there was express general consent to an examination. Although she testified that she thought that she was to be administered the barium orally as on previous occasions, yet none of her testimony, nor that of any other witness, is subject to the inference that her consent to the examination did not extend to and include the enema when she discovered that the barium was to be administered by enema and not orally. In absence of this inference no jury question was presented on the issue of consent and the evidence demanded a finding that she did consent to the enema. In this circumstance there could be no actionable assault and battery because of the use of that technique.
(b) With respect to consent the evidence in this case presents another and unusual question for consideration, i.e., whether after treatment or examination has begun, the patient's consent previously given may be withdrawn so as to subject the doctor to liability for assault and battery if the treatment or examination is continued. After exhaustive research we have found no reported precedent in this or any other jurisdiction to guide us in this area.
In the interest of the individual's right of freedom from unwanted contacts and invasions upon his body, we can not go so far as to say that once the examination or treatment has begun with the patient's consent the patient can in no event and by no means withdraw his approval. On the contrary even after the treatment or examination is underway we wish to emphasize that consent once given can be withdrawn sufficiently to subject a doctor to suit for assault and battery if he continues the contact, provided however the physician's withdrawal under the medical circumstances then existing would not endanger the life or health of the patient. This presents a medical question.
It is difficult to set a standard to govern the doctor's conduct where the patient protests in the midst of treatment or examination. If the doctor should desist in midstream, so to speak, it might forfeit the patient's life or well-being and might result in the doctor's liability for malpractice or indictment for some criminal offense or might bring upon him the reproach and condemnation of his own profession. These possibilities of accusal should not be left to chance, so a standard must be devised to regulate conduct in this scope of activity.
To constitute an effective withdrawal of consent as a matter of law after treatment or examination is in progress commensurate to subject medical practitioners to liability for assault and battery if treatment or examination is continued, two distinct things are required: (1) The patient must act or use language which can be subject to no other inference and which must be unquestioned responses from a clear and rational mind. These actions and utterances of the patient must be such as to leave no room for doubt in the minds of reasonable men that in view of all the circumstances consent was actually withdrawn.
(2) When medical treatments or examinations occurring with the patient's consent are proceeding in a manner requiring bodily contact by the physician with the patient and consent to the contact is revoked, it must be medically feasible for the doctor to desist in the treatment or examination at that point without the cessation being detrimental to the patient's health or life from a medical viewpoint.
The burden of proving each of these essential conditions is upon the plaintiff, and with regard to the second condition, it can only be proved by medical evidence as medical questions are involved.
To permit a lesser standard would be to subject the medical profession to an endless possibility of harrassment and would place upon them a potential of punishment in every case where their examination or treatment results in less than complete success. The possibility of irresponsible harrassment is something the medical profession should not be called upon to bear, dealing as it does with human life and human frailty.
The evidence in this case falls far short of meeting either of the two essential criteria. The testimony of the plaintiff herself offers nothing to show a revocation of her consent within the meaning of the first condition. Her strongest testimony even remotely approaching the point is as follows:
"When [defendant Woolley] . . . started giving me the enema he was going to insert [the bardex catheter tube] . . . into the colostomy and I told him, 'Better let me insert that tube because I am in the habit of taking an enema and I know how to insert these rubber tubes without hurting, because there is such a crook in the colostomy, it has to go part one way and then has to be turned, because it can't go just right straight down.'
"He said, 'No, you don't know how to do it,' and he continued with this thing, and I tried to take it out of his hand and he wouldn't let me have it. He said, 'No, you can't do it.'
"So with that he shoved that thing right into my colostomy and right on in and just nearly killed me.
"And then when he started pouring that barium into that tube that had been inserted, he poured so much I said, 'Dr. Woolley, I can't take all of the barium because I don't have but a very small part of my large colon,' and of course he didn't know anything about what I had had done and he still kept giving me more.
"I said, 'That is just all I can take. It's just killing me,' and I just kept getting very, very terrible pains and suffering terrible all the time he was giving it to me. . .
"I was in such intense pain and that I didn't think I could stand it and I just kept begging both of them [defendant Woolley and Dr. Pilcher] not to give me any more of it. . .
"Oh I just suffered terrible, I suffered torture, started into just rigors and just shaking, and they had to hold me on the table. . ."
This testimony merely shows protestations by the plaintiff of pain and discomfort and disagreement with the defendants in the manner they administered the barium enema. That is not enough.
Even had the first essential been met (which we have held was not the case), then the suit would fail nevertheless because the second essential was not proven. There is no medical testimony in the record by any doctor showing that it would have been medically feasible for the defendants to have desisted in the barium enema at any stage of the examination.
The evidence demanded a finding that there was no revocation of consent and continuation of the examination by means of the barium enema did not constitute an assault and battery.
The evidence having demanded a verdict for the defendant, the judgment is affirmed on the general grounds.
It is not necessary for us to consider the numerous special grounds as the judgment here constitutes a final determination of the cause and no retrial will occur.
Judgment affirmed on the general grounds. Jordan and Eberhardt, JJ., concur.