Plaintiffs, Victor Carroll and Mrs. Cleo Carroll, instituted this action against Dr. Howard L. Chapman, and his liability insurer, National Surety Corporation, alleging that the doctor, a licensed chiropodist, performed an operation in a negligent manner upon her foot, which has resulted in disabling injuries, and that such operation was not explained, all of which amounted to an assault upon the person of Cleo Carroll without her knowledge and consent. Issue was joined through an answer in the nature of a general denial. Following trial, judgment was rendered in favor of plaintiffs, awarding Cleo Carroll $3,500.00 in damages and her husband, Victor Carroll, $825.00 for past and future medical expenses. From this decree the defendants have appealed, and plaintiff, Cleo Carroll, has answered the appeal asking that the award in her favor be increased to the sum of $13,000.00.
It is our understanding and appreciation of the position of appellees that they do not seriously contend the operation performed by Dr. Chapman was performed in an unskillful or negligent manner, but contend that the operation was performed without the consent of the patient. The record, in our opinion, clearly discloses the absence of any substantial proof of negligence or want of skill in the performance of the operation and subsequent treatment of the patient, Mrs. Carroll. The scope of our examination, therefore, is primarily concerned with evidence relating to whether or not the patient's consent was granted for the surgery undertaken by Dr. Chapman.
Dr. Chapman testified that he had been licensed to practice chiropody in Louisiana since 1938 and he is licensed also in the State of Arkansas. He related his education and training and association in professional societies, all of which seem to establish his qualification for practice in his chosen profession, which is classified under our law as a branch of medicine, the practice of which is subject to limitations set forth in LSA-R.S. 37:611-37:621. The statute states:
This action arises from surgical procedure by Dr. Chapman upon the right foot of Mrs. Carroll for the purpose of relieving a callous formation on the ball of or planta surface of the right foot. The relationship between the doctor and patient began in 1958, at which time Dr. Chapman removed callous from the bottom of the right foot without penetrating the outer skin. Thereafter the callous returned and worsened, resulting in an acute condition.
On February 8, 1960, Mrs. Carroll presented herself to the doctor whose examination disclosed an acute inflammation of the right forefoot and a severe nucleated callous under the ball of the foot. He testified that he recommended surgical correction of the cause of the condition, which, he stated, was due to unusual pressure brought about by a depressed metatarsal or possibly an enlargement of the metatarsal head of the second toe of the foot. His decision to resort to surgery was prompted by his experience which indicated mere excise of the callous would have brought about temporary relief only and that although the surgical procedure involved some risk, he did not explain such risk to the patient, but felt surgery was the proper remedy and that the chance of a deformity resulting would be unusual. He opined it was not possible before surgery to tell that someing might go wrong. Dr. Chapman related in detail preparatory procedure and then the operation, which he thus described:
Concerning the understanding between the patient and himself prior to the operation as to the nature of surgery to be performed, the testimony of Dr. Chapman discloses:
With reference to her understanding as to what type of surgery was contemplated,
"Are you ready for me to take it out permanently?" And I said, "Yes, sir, can you?" And he said, "Yes, I can," and I said, "Well, get your gas and go to digging." She denied further that the doctor explained to her the possibility of ill results from the operation. The doctor's testimony revealed he did not inform Mrs. Carroll of the risk involved. Mrs. Carroll testified that while she was on the operating table and the operation was in progress:
Dr. Chapman admitted on the witness stand that the operation was not a success in that it did not achieve the results intended, and it brought about an elevation of the second toe above the plane of the first and third toes of the right foot, which condition, he said, could result in some discomfort.
The only other expert testimony tendered was that of Dr. Ford J. Macpherson, orthopedist of Shreveport, who testified that such operations are not always successful. He further testified:
It is apparent that this prognosis was hopeful, but to a certain extent uncertain.
The legal principle is well recognized that in the absence of exceptional circumstances, an operation without the patient's consent constitutes an assault for which the patient may recover appropriate damages. Rogers et vir v. Lumbermen's Mutual Casualty Company et al., La.App., 119 So.2d 649, (2d Cir. Certiorari denied 1960). In the cited case this court pointed out that the general rule so stated extends to the performance of operations different in nature from that in which a consent was given, and to operations involving risk and results not contemplated. Counsel for appellees rely upon the Rogers case wherein authority for an appendectomy only was given, but the doctor not only removed the appendix, but also performed a complete hysterectomy. Surgery performed by a chiropodist employing the use of a knife, appliances and anaesthetics is restricted by statute as set out above. In Whyte v. American Motorists Insurance Company
Clearly, the record shows an absence of express consent given by either Mrs. Carroll or her husband to perform an operation for the removal of a portion of a metatarsal bone in the foot. However, express consent is not always sacramental and under certain circumstances it may be implied or presumed. Thus, a patient who voluntarily submits himself for treatment, relying entirely upon the surgeon's skill and care to decide for him what shall be done, gives a general consent by implication, at least, to such operation as may, in the surgeon's skill and professional judgment, be reasonably necessary. As pointed out in Rogers v. Lumbermen's Mutual Casualty Company et al., supra, such consent in the case of a major operation cannot amount to permission to perform major surgery far beyond the foreseeability of the patient. 41 Am.Jur. § 109. In Hall v. United States, D.C., 136 F.Supp. 187, 5 Cir., 234 F.2d 811, the court was of the opinion that a doctor should discuss the nature of the operation contemplated in detail, if asked by the patient, but that he need not volunteer such information, and stated:
It is not to be presumed that as a general rule a patient would submit to major surgery without inquiring into the risk involved and the possible after-effects. The presumption is contrariwise with reference to a minor operation where the probability of ill consequences is rather remote. In Rolater v. Strain, 39 Okl. 572, 137 P. 96, 50 L.R.A.,N.S., 880, (1913) a judgment in favor of the plaintiff was affirmed where it was found that the patient had expressly instructed the surgeon not to remove any bone in her foot, but nonetheless he removed a sesamoid bone. There, as here, the doctor contended the removal was necessary to effect a cure. In refusing to find error in the finding of fact, the reviewing court observed the operation was not performed in the manner agreed upon and in the manner consented to by the patient, and, as a matter of fact, the actual operation performed was without her consent.
In the Restatement of the Law of Torts, § 62, there are set forth four conditions when an invasion of an interest of personalty of another, who has not consented thereto, does not make the actor liable. These embrace the exceptions to the general rule that the surgeon must have the consent of his patient. In the comment under this authoritative rule, it is pointed out implied consent, or implication of consent, is a fiction, but color must be given to this fiction by the fact that the circumstances must be such as to give the person rendering the services reason to believe that consent would be given if it were possible. The author then states:
We may observe that the relationship between a doctor and his patient is such that exact agreements are the exception rather than the rule. This is certainly true in cases where minor surgery and professional services are rendered and which do not
In this case the established and uncontradicted facts disclose that Dr. Chapman prepared Mrs. Carroll for surgery in a manner which plainly indicated the operation would involve something different from that undertaken some two years prior thereto, when the treatment consisted solely of removing, without penetrating the outer skin, a callous on the ball of her foot. It is noteworthy, we think, that Mrs. Carroll did not inquire as to whether the procedure could affect any of the bones of her foot, nor did she expressly prohibit the removal or restrict in any manner the methods to be employed by the surgeon. The operation as performed followed customary local usage, was not unusual, and although resulting in a deformity of the second toe, such an occurrence was, indeed, a rarity in that type of operation. Preparations for the operation included X-rays, urinalysis, blood tests, and all other professional procedure for the performance of surgery. Mrs. Carroll expressed surprise that the operation was through the top of her foot rather than through the bottom. When this was discovered by her, she was under a local anaesthetic and could have at that time discussed the matter of consent with the doctor. She made no complaint of any sort until months afterward when she realized that she would have a deformity of the second toe. The foregoing circumstances indicate Mrs. Carroll was in nowise concerned as to whether a small bone would be removed from her foot, or that it was any matter to be greatly concerned with, forasmuch as the doctor had informed her that he would remove the cause of her condition permanently. We have concluded she gave her implied consent and that her real grievance is occasioned by the result of the operation, which, however, does not sustain liability.
For the foregoing reasons the judgment from which appealed is annulled, set aside and reversed, and plaintiffs' demands are rejected at their cost.
Rehearing denied; AYRES, J., dissents.