Kennedy v. Parrott

Supreme Court of North Carolina · Torts

TortsMedical batteryConsentMedical malpracticeunauthorized operationbatterytrespass to the personimplied consent

Facts

Plaintiff submitted to defendant for an appendectomy. After making the incision, defendant discovered enlarged follicle cysts on plaintiff's ovaries and punctured them during the same operation while plaintiff was under anesthesia. Plaintiff alleged the puncturing was unauthorized and also sought damages for phlebitis, but she offered no expert testimony that defendant lacked skill, failed to use due care, or departed from sound surgical procedure. The record showed no real showing of resulting injury from the puncturing itself, and expert testimony indicated puncturing enlarged cysts was accepted surgical practice.

Issue

When a patient consents to a major internal operation and is under anesthesia, may the surgeon, without express additional consent, extend the operation to correct an abnormal condition discovered within the area of the original incision? Relatedly, did plaintiff present sufficient evidence to go to the jury on either negligence or unauthorized-operation theory?

Rule

In a major internal operation, where the exact condition cannot be fully diagnosed until the patient is anesthetized and the incision has been made, the patient's consent will, absent proof to the contrary, be construed as general in nature. Thus, when the patient is incapable of consenting and no one with authority to consent is immediately available, the surgeon may extend the operation to remedy any abnormal or diseased condition in the area of the original incision whenever, in the exercise of sound professional judgment, correct surgical procedure dictates and requires it. Proof of mere error of judgment is insufficient to establish negligence.

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

Elena Morris consented in Raleigh, North Carolina, to a major internal abdominal operation to remove a suspected inflamed section of bowel. After she was anesthetized and the incision was made, Dr. Victor Lang discovered a diseased fallopian tube in the same operative field that, in his sound professional judgment, should be removed immediately; no relative or other authorized decisionmaker was immediately available in the hospital.

If Elena later sues Dr. Lang for battery solely because she did not expressly authorize removal of the fallopian tube, what is the most likely result?

Explanation. The majority held that in a major internal operation, when final diagnosis occurs only after anesthesia and incision, the patient's consent is generally construed as general in nature absent proof to the contrary. If the patient is incapable of consenting, no authorized person is immediately available, and sound professional judgment dictates extending the operation to remedy an abnormal or diseased condition in the area of the original incision, the surgeon is not liable for battery for the added procedure.