A physician performed scheduled surgery on her patient’s right ear for a condition caused by prolonged and repeated infections in that ear. During the surgery, the physician determined that her patient had been particularly susceptible to this condition due to a previously unsuspected anatomical abnormality. The physician reasonably believed that this same abnormality was likely to exist in the patient’s left ear. Though the patient had not had many infections in the left ear, if a similar course of recurring infections were to transpire involving that ear, it would probably develop the same condition as the right and require surgery. The physician therefore decided to perform surgery on her patient’s left ear, although she had received his consent only to operate on the right ear. The surgery was performed with due care and was successful. The applicable jurisdiction permits the extension of an operation beyond the consented procedure only in emergency situations.
In an action by the patient against the physician:
A. The patient will not recover because the extension of the operation was successful.
B. The patient will not recover because the extension of the operation was carried out with due care.
C. The patient will recover at least nominal damages on a negligence theory.
D. The patient will recover at least nominal damages on a battery theory.
{ 13 comments… read them below or add one }
D
Answer D is correct. The patient will recover at least nominal damages. The patient here need only show that the extension of the operation was an intentional, unpermitted, offensive contact in order to recover at least nominal damages in battery. The patient may recover in battery regardless of whether he was harmed. Battery is a tort where no physical harm need be shown, and no actual damage need be proven.
Answer A is incorrect. The patient here can show that the extension of the operation was an intentional, unpermitted, offensive contact. Therefore, the patient may recover in battery regardless of whether or not he was harmed. Battery is a tort where no physical harm need be shown, and no actual damage need be proven. Actual harm is an element of the prima facie case of negligence, but is not required for most intentional torts.
Answer B is incorrect. The patient may recover in battery regardless of whether he was harmed and whether or not the physician’s conduct was incompetent (i.e., negligent). Battery is a tort where no physical harm need be shown, and no actual damage need be proven. Also, no negligence or incompetence need be shown in battery. The patient here need only show that the extension of the operation was an intentional, unpermitted, offensive contact.
Answer C is incorrect. In a negligence action, actual harm must be shown. The plaintiff must establish that he suffered damage as a result of the defendant’s conduct. Damages will not be presumed and nominal damages cannot be awarded in a negligence action. Nominal damages are only appropriate in a suit based on an intentional tort where no actual harm can be shown.
D is correct – Nominal damages under battery. Battery is harmful and offensive touching. There was no implied consent for doctor to work on Patients left ear. Thus it offensive touching for a reasonable person under the circumstances.
C – no recovery under negligence because no damage
A and B – wrong because Patient will recover
The answer is D -
Battery is the intentional tort of un-consented and intended physical harm on another. Here, the patent did not consent to surgery on the right ear, the doctor did intend physical touching on the right ear and per4formed surgery on the right ear without consent. All elements are satisfied for a claim by the patient for a battery action against the doctor.
The best answer is D. The statute in the jurisdiction only covers emergency situations, and in the fact pattern, this was not an emergency situation. Thus A and B are eliminated. Choice C is incorrect because there is no basis for negligence because the physician operated with due care and the operation was a success. Despite this, the patient did not consent to an operation on the left ear.
Answer D
Answer (D)
The answer is D. A battery is committed where one commits harmuful or offensive contact with the person of another or an object closely connected to the person of another. One may consent to such contact. Where one consents to a certain degree of contact, any contact that exceeds consent is sufficient for an action in battery. Here, the patient consented to the operation on her right ear. However, when Dr. operated on Patient’s left ear, Dr, exceeded the degree of contact to which patient consented. Therefore, Dr is liable to Patient for the tort of battery and Patient may at least recover nominal damages as a result.
A is wrong because the fact that the operation was successful is irrelevant because Dr exceeded Patient’s consent to contact.
B is wrong because thie is not a case where Dr breached his duty to adhere to the standard of care.
C is wrong because a claim of battery provides a stronger ground for success by Patient.
(D)
D is the correct answer.
D – I guess. I like A also because for a plaintiff to have a valid cause of action in tort law, there must be a harm. Here harm is questionable because the surgery was a success, although we could argue that the harm was surgery on a possibly healthy ear. However, I like D because the touching was likely offensive since the plaintiff filed suit. Plus causation works here. I like D.
B- doesnt matter if there was due care or not, a statute was violated which under negligence per se breaches duty. So no to B
C- same harm problem as A.
(D) is the correct answer.
(C) is wrong because there is no breach of duty and no damages required for negligence.
(A) is irrelevant.
(B) is incorrect because it does not take into account the elements of battery.
The answer is D.