IRVING ZARETSKY, APPELLANT,
v.
MILTON B. JACOBSON AND SOLOMON B. GOLDMAN, APPELLEES
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A patient sued two physicians for performing an aortagram procedure without consent and allegedly doing so negligently, resulting in spinal cord damage and paralysis. The lower court granted summary judgment for the defendants, but the appellate court reversed, finding disputed material facts about consent precluded summary judgment.
The court held that a genuine issue of material fact existed regarding whether the patient consented to the aortagram procedure, which precluded summary judgment. The conflicting accounts in the depositions—the patient denying knowledge of the procedure and the defendants impliedly asserting he knew and consented—created a factual dispute that must be resolved by trial.
“The rule is well established which prevents a doctor from operating on a patient without his express or implied consent, or in a manner contrary to the patient's expressed instructions.”
Establishes the fundamental legal principle governing physician consent requirements
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Join FLexlaw to unlock all legal intelligenceZaretsky underwent what he believed was hernia surgery but the defendants performed an aortagram—a diagnostic procedure—without his knowledge or conse…
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HORTON, Judge.
The appellant, plaintiff in the court below, brought an action against the appel-lees who are physicians, charging that the appellees took the appellant into surgery to perform what he, the appellant, thought was an operation on a hernia, and instead, the appellees, without the appellant’s knowledge and consent, performed a highly technical and dangerous operation known as an aortagram; that during the course of the operation, the appellees inserted a large needle into the skin at the tip of one of the appellant’s ribs for the purpose of entering the aorta and that the needle was inserted in a careless and negligent manner by the appellees or one of them so that it came in contact with the spinal cord, or, in the alternative, ruptured a blood vessel next to the spinal cord, damaging nerves controlling the lower extremities of the appellant’s body and as a result thereof, caused the appellant to suffer a paralysis in the lower part of the body. The appel-lees filed answer to the complaint denying the material allegations, to wit: (a) the lack of consent and (b) negligent treatment. The appellee, Goldman, denies that he made any tests upon the appellant or undertook any operative procedures upon him.
After depositions had been taken of the appellant, appellees and others, the appel-lees moved for a summary judgment upon the pleadings and depositions on file, upon the theory that there was no genuine issue as to any material fact and that the appel-lees were entitled to a judgment as a matter of law. The lower court granted the motion and entered summary final judgment in favor of the appellees. This appeal is from that judgment.
The appellant has made three assignments of error, all of which go to the alleged error of the lower court in entering the summary final judgment, and contending that there was a genuine issue as to material fact that precluded the entry of such a judgment. In the main, the appellant contends that the aortagram was performed without his knowledge and consent, but also urges the sufficiency of the depositions to show negligent performance of the aortagram on the part of the appellees.
The appellees in their brief have posed only one question which, in substance, goes to the lack of expert medical testimony to support the allegations of specific negligence, in the absence of which, they contend, the summary judgment would be justified.
An examination of the pleadings discloses that there are two issues of fact raised — first, whether or not the appellant gave his consent to the diagnostic procedure know as an aortagram, and secondly, whether or not in performing the aorta-gram, the appellees did so in a negligent manner. A reading of the record, including the depositions, convinces this court that the issue of consent raised by the pleadings was not fully and adequately concluded so as to warrant the entry of the summary judgment. In Chambers v. Notte-baum, Fla.App.1957, 96 So. 2d 716, 718, this court commented at length on the question of consent to an operation by a patient. We said there:
“The rule is well established which prevents a doctor from operating on a patient without his express or implied consent, or in a manner contrary to the patient’s expressed instructions.” See Wall v. Brim, 5 Cir., 138 F. 2d 478, 481.
Further considering the depositions, it is well to point out that the appellant has specifically denied that he knew or was advised by the appellees that he was to undergo an aortagram procedure. It is also true that the appellees, without specifically saying so, just as vigorously contend that the appellant knew that such procedure was to be conducted, and thereby impliedly gave his consent. This in itself created a conflict which we feel precluded the lower court in deciding as a matter of law that no genuine issue of material fact existed. When a genuine issue as to a material fact does exist in a cause, the court should not resolve the matter by entering a summary judgment. See Wilson v. Bach-rach, Fla.1953, 65 So. 2d 546.
This court having concluded that the entry of a summary judgment was error, it therefore becomes unnecessary at this time to pass upon the other questions raised. Accordingly, the summary final judgment appealed from should be and is hereby reversed.
Reversed.
CARROLL, CHAS., C. J., and PEARSON, J., concur.
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Rochelle Ditlow and her husband v. Kaplan, 181 So. 2d 226 (Fla. 3d DCA 1965)…ich occurred, is approximately one in five hundred. Before operating upon the plaintiff, the defendant-doctor was required to obtain [*228] her informed consent. Chambers v. Nottebaum, Fla.App.1957, 96 So. 2d 716; Zaretsy v. Jacobson, Fla.App.1958, 99 So. 2d 730. There is little dispute with regard to the above proposition but the problem arises when a determination is sought to be made as to whether informed consent exists in given factual circumstances. The plaintiff contends that the defendant failed to…
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Bowers v. Talmage, 159 So. 2d 888 (Fla. 3d DCA 1963)…e were conflicts in the evidence presenting an issue for the jury on the material question of whether informed consent for the operation was obtained from the parents. Their consent to the operation was requisite. Zaretsky v. Jacobson, Fla.App.1958, 99 So. 2d 730, Chambers v. Nottebaum, Fla.App.1957, 96 So. 2d 716; 25 Fla.Jur., Physicians and Surgeons, § 80. Unless a person who gives consent to an operation knows its dangers and the degree of danger, a “consent” does not represent a choice and is ineffectual…
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Brown v. Wood, 202 So. 2d 125 (Fla. 2d DCA 1967)…of law, the plaintiffs can bring their action only in assault and battery. The appellees cite four Florida cases, Russell v. Harwich, Fla.App.1964, 166 So. 2d 904; Bowers v. Talmage, Fla.App.1963, 159 So. 2d 888; Zaretsky v. Jacobson, Fla.App.1958, 99 So. 2d 730; and Chambers v. Nottebaum, Fla.App.1957, 96 So. 2d 716, which they claim uphold the trial court’s determination. A close reading of the Russell, Bozvers, and Zaretsky cases will show that they do not deal with the issue at hand and do not support a…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wilson v. Bachrach, 65 So. 2d 546 (Fla. 1953)
- Silas E. Chambers v. Nottebaum, 96 So. 2d 716 (Fla. 3d DCA 1957)
- Wall v. Brim, 138 F.2d 478 (5th Cir. 1943)