Motor Vehicle Crash Fatalities and Fatality Rates (per Hundred Million Vehicle Miles Traveled), 1899-2009
A. Trespass
4. Consent
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protect his possession, or retake the property, by the use of necessary force.
He is not bound to stand by and submit to wrongful dispossession or larceny when he can stop it, and he is not guilty of assault, in thus defending his right, by using force to prevent his property from being carried away. But this right of defense and recapture involves two things: First, possession by the owner; and, second, a purely wrongful taking or conversion, without a claim of right. If one has intrusted his property to another, who afterwards, honestly, though erroneously, claims it as his own, the owner has no right to retake it by personal force. If he has, the actions of replevin and trover in many cases are of little use. The law does not permit parties to take the settlement of conflicting claims into their own hands. It gives the right of defense, but not of redress. The circumstances may be exasperating; the remedy at law may seem to be inadequate; but still the injured party cannot be arbiter of his own claim.
Public order and the public peace are of greater consequence than a private right or an occasional hardship. Inadequacy of remedy is of frequent occurrence, but it cannot find its complement in personal violence.
22 A. 1112. Why does Kirby’s claim of right in the money transform the legal situation from that of ordinary recapture of chattels?
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examined the ear, and confirmed defendant in his diagnosis. Defendant also further examined the right ear, and found its condition less serious than expected, and finally concluded that the left, instead of the right, should be operated upon; devoting to the right ear other treatment. He then performed the operation of ossiculectomy on plaintiff's left ear; removing a portion of the drum membrane, and scraping away the diseased portion of the inner wall of the ear. The operation was in every way successful and skillfully performed. It is claimed by plaintiff that the operation greatly impaired her hearing, seriously injured her person, and, not having been consented to by her, was wrongful and unlawful, constituting an assault and battery; and she brought this action to recover damages therefor.
The trial in the court below resulted in a verdict for plaintiff for $14,322.50.
Defendant thereafter moved the court for judgment notwithstanding the verdict, on the ground that, on the evidence presented, plaintiff was not entitled to recover . . . . The trial court denied the motion for judgment . . . . Defendant appealed . . . .
The . . . contention of defendant is that the act complained of did not amount to an assault and battery. This is based upon the theory that, as plaintiff's left ear was in fact diseased, in a condition dangerous and threatening to her health, the operation was necessary, and, having been skillfully performed at a time when plaintiff had requested a like operation on the other ear, the charge of assault and battery cannot be sustained; that, in view of these conditions, and the claim that there was no negligence on the part of defendant, and an entire absence of any evidence tending to show an evil intent, the court should say, as a matter of law, that no assault and battery was committed, even though she did not consent to the operation. In other words, that the absence of a showing that defendant was actuated by a wrongful intent, or guilty of negligence, relieves the act of defendant from the charge of an unlawful assault and battery. We are unable to reach that conclusion, though the contention is not without merit. It would seem to follow from what has been said on the other features of the case that the act of defendant amounted at least to a technical assault and battery. If the operation was performed without plaintiff's consent, and the circumstances were not such as to justify its performance without, it was wrongful; and, if it was wrongful, it was unlawful. [E]very person has a right to complete immunity of his person from physical interference of others, except in so far as contact may be necessary under the general doctrine of privilege; and any unlawful or
unauthorized touching of the person of another, except it be in the spirit of pleasantry, constitutes an assault and battery.
In the case at bar, as we have already seen, the question whether defendant's act in performing the operation upon plaintiff was authorized was a question for the jury to determine. If it was unauthorized, then it was, within what we have said, unlawful. It was a violent assault, not a mere pleasantry; and, even though no negligence is shown, it was wrongful and unlawful. The case is unlike a criminal prosecution for assault and battery, for there an unlawful intent must be shown. But that rule does not apply to a civil action, to maintain which it is sufficient to show that the assault complained of was wrongful and unlawful or the result of negligence. . . .
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The amount of plaintiff's recovery, if she is entitled to recover at all, must depend upon the character and extent of the injury inflicted upon her, in determining which the nature of the malady intended to be healed and the beneficial nature of the operation should be taken into consideration, as well as the good faith of the defendant.
Order affirmed.
Notes
1. Consent or utility? The operation was “in every way successful and skillfully
performed.” No one seems to have doubted that the surgeon adopted the prudent course of action once the operation had begun. Moreover, the surgeon even consulted with his patient’s family doctor during the surgery. To have obtained permission from the patient herself would have required that she be brought out of anesthesia and then put back under, no easy feat at the time, and a procedure with considerable risks to the patient herself.
Why on earth, then, would the court conclude that the undoubtedly correct
surgical decision was nonetheless a battery on the plaintiff? Isn’t this a wasteful decision, requiring future doctors and patients to expend unnecessary and foolish resources in time, money, and health?
2. Identifying Consent. It is not always easy to identify when consent has taken place.
Consider O’Brien v. Cunard Steamship Co., 28 N.E. 266 (Mass. 1891), in which a steerage passenger on the defendant’s steamship brought an action for intentional tort alleging that defendant administered a contaminated vaccine without her consent.
Plaintiff never said to anyone that she desired to be vaccinated. To the contrary, she told the ship’s surgeon that she had already been vaccinated, though it had left no mark. On the other hand, plaintiff waited in a line with 200 other women who were all vaccinated;
plaintiff presented her arm to the surgeon as the women before her had done; and plaintiff used the vaccination card she received to gain admission to the United States at the port of Boston.
Writing for the court, Judge Knowlton, held that the question of consent turned on a broad reading of the surrounding facts and circumstances:
In determining whether the act was lawful or unlawful, the surgeon's conduct must be considered in connection with the surrounding
circumstances. If the plaintiff's behavior was such as to indicate consent on her part, he was justified in his act, whatever her unexpressed feelings may have been. In determining whether she consented, he could be guided only by her overt acts and the manifestations of her feelings.
The court concluded about the women passengers that “[t]hey all indicated by their conduct that they desired to avail themselves of the provisions made for their benefit.”
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28 N.E. at 273-74. Does this kind of consent-by-conduct allay the kinds of concerns that motivate the consent requirement in the first place?
3. Boilerplate consent. Modern consent mechanisms in the medical care context are radically different from the informal inferences of O’Brien. Establishing consent in a medical context is now a matter of detailed medical paperwork. Consider the following excerpt from a standardized consent form at Yale-New Haven Hospital:
SECTION A
1. After discussing other options, including no treatment, with my doctor, I ask Dr.
_____________________________ and/or his/her partners to perform the following procedure(s): ____________________________________________
__________________________________________________________________
____________________________ Name or description of operation(s), procedure(s) and/or treatment(s). Indicate applicable level, side, or site. I understand that this procedure is for purposes of
__________________________________________________
2. I give permission to my doctor to do whatever may be necessary if there is a complication or unforeseen condition during my procedure.
3. My doctor has explained to me that some possible complications of the procedure(s) can include:
a. Bleeding; infection; accidental injury of other body parts; my condition returning or not being improved; or, possibly, death.
b. My doctor has discussed with me the additional risks listed below and their chances of happening. I do understand that other things can happen as well._____________________________________________________
____________________________________________________________
______
4. I agree to have anesthesia as necessary to perform the procedure(s). I understand that if an anesthesiologist is to be involved he/she will speak to me about the risks of anesthesia in more detail.
5. I understand that I may need to have a blood transfusion during or after the procedure(s). I understand that some risks of blood transfusions include: fever, allergic reaction, or getting an infectious disease. I agree to receive blood or blood products if my doctor decides it is necessary.
6. I give permission to the hospital to keep tissue, blood, body parts, or fluids removed from my body during the procedure and use them to make a diagnosis, after which they may be used for scientific research or teaching by appropriate persons within or outside the hospital. These materials will only be used for scientific research after review by an ethics board. I understand that I will no longer own or have any rights to these things regardless of how they may be used.
7. I understand that Yale-New Haven is a teaching hospital. Doctors who are in training may help my doctor with the procedure. My doctor will supervise these trainees and will be present at all important times during the procedure. I also
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understand that my doctor’s associate(s), surgical assistants and/or other non-physicians or trainees may assist or perform parts of the procedure under my doctor’s supervision, as permitted by law and hospital policy. If others who are not hospital staff will be present in the operating room, my doctor has spoken with me about this.
8. I understand the purpose and potential benefits of the procedure. My doctor has explained to me what results to expect, and the chances of getting those results. I understand that no promises or guarantees have been made or can be made about the results of the procedure(s).
9. I give permission to the hospital and the above-named doctor to photograph and/or videotape the procedure(s) for medical, scientific, or educational purposes.
Consent signed on _____________, 20__ at _______________AM / PM _____________________________________
Signature of Patient or Guardian (Circle one) _____________________________________
Signature of Doctor Performing Procedure _____________________________________
Signature of Person Obtaining Consent ___________________________________
Printed Name
____________________________________
Printed Name
Do boilerplate consent forms of modern medical practice undo the decision in Mohr? Or do they vindicate it? What if the consent form said only the following: “I give
permission to my doctor to do whatever she or he deems advisable for my health and wellbeing during my procedure.” Would this undo the decision in Mohr?