Bang v. Charles T. Miller Hospital

Supreme Court of Minnesota · Torts

TortsConsent to Medical TreatmentUnauthorized OperationAssault and Batterymedical consentunauthorized operationassaultbattery

Facts

Plaintiff consulted defendant about urinary problems and was told he needed further examination at the hospital to determine what should be done next, with a possible prostate operation if indicated. Defendant performed a cystoscopic examination and then a transurethral prostatic resection, during which plaintiff's spermatic cords were severed as a routine part of the procedure for patients of plaintiff's age. Defendant testified he did not inform plaintiff at the office visit that the operation might involve the spermatic cords and did not recall definitely discussing that detail before surgery; plaintiff testified defendant never told him that cutting the spermatic cords was necessary or intended. There was also testimony that plaintiff generally left treatment decisions to the doctor, did not place express limitations on the surgeon, and expected the doctor to do what was necessary to cure his condition.

Issue

Whether the evidence created a jury question on whether plaintiff expressly or impliedly consented to the severance of his spermatic cords during the prostate operation. More specifically, the issue was whether the trial court erred in dismissing the action instead of submitting the claimed assault or unauthorized operation to the jury.

Rule

Ordinarily, a patient must be consulted and must consent before a physician may operate. A physician may proceed without express consent only when an immediate operation is necessary to save the patient's life or health, or under exceptional circumstances where consent may be implied, including when unforeseen conditions discovered during a consented-to operation endanger the patient's life or health. Where a physician can ascertain alternative situations in advance and no immediate emergency exists, the patient should be informed of those alternatives and given the opportunity to decide before the doctor proceeds.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Milwaukee, Dana Keller agreed to arthroscopic knee surgery at Lakeshore Surgical Center after Dr. Nikhil Saran explained that he would repair damaged cartilage. Before the operation, Dr. Saran already knew there were two likely techniques if he found joint instability: one would use a graft from Dana's own tissue, and the other would require removing a healthy tendon from her ankle, causing permanent weakness there. He never discussed the ankle-tendon option, and during surgery he chose it even though Dana's condition was not life-threatening.

If Dana sues for unauthorized operation, which is the strongest argument against dismissing her claim as a matter of law?

Explanation. Ordinarily, a patient must be consulted and consent before a physician operates. The majority recognizes limited implied-consent situations, including immediate necessity to save life or health and unforeseen dangerous conditions discovered during a consented-to operation. But where alternative situations can be ascertained in advance and no immediate emergency exists, the patient should be informed of those alternatives and allowed to decide. Because the undisclosed ankle-tendon procedure was a known alternative before surgery and no emergency existed, consent is at least a fact question for the jury. (Derived from Bang v. Charles T. Miller Hospital (n.d.).)