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Curtis v. Jaskey

November 20, 2001

RACHEL CURTIS, PLAINTIFF-APPELLANT,
v.
DAVID G. JASKEY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Du Page County. No. 98--L--392 Honorable Edward R. Duncan, Judge, Presiding.

The opinion of the court was delivered by: Justice Grometer

Ordered published January 2, 2002.

RACHEL CURTIS, PLAINTIFF-APPELLANT,
v.
DAVID G. JASKEY, DEFENDANT-APPELLEE.

Appeal from the Circuit Court of Du Page County. No. 98--L--392 Honorable Edward R. Duncan, Judge, Presiding.

The opinion of the court was delivered by: Justice Grometer

Plaintiff, Rachel Curtis, appeals the judgment of the circuit court of Du Page County granting summary judgment in favor of defendant, David G. Jaskey. Plaintiff contends that the trial court erred in determining that her battery claim was barred because defendant was reacting to a medical emergency when he performed an episiotomy on her. For the reasons that follow, we reverse and remand this cause for further proceedings.

Plaintiff sought prenatal care from defendant for the first time in May 1996. She saw defendant three additional times in the period between her first visit and the delivery of her child. During the first visit, plaintiff asserts that she informed defendant that he was not to perform an episiotomy during childbirth and that defendant agreed to her request. Plaintiff further asserts that she reminded defendant of this condition during subsequent visits. Defendant disputes that he agreed that an episiotomy would, under no circumstances, be performed. Instead, he contends that he stated he would try to avoid performing one but would have to make the ultimate decision during delivery. Eventually, the decision was made to induce labor. After arriving at the hospital, plaintiff signed a consent form; however, she crossed out the portion of the form indicating that she was consenting to an episiotomy. Additional conflicting evidence concerning whether plaintiff consented to the procedure exists in the record but need not be set forth here. Approximately five hours after arriving at the hospital, plaintiff delivered her child. Plaintiff's labor progressed very quickly. Shortly before delivery, plaintiff's posterior fourchette began to tear. Defendant performed an episiotomy about two minutes prior to the birth.

Dr. Edward Axelrod testified on defendant's behalf in a discovery deposition. Axelrod opined that the circumstances under which defendant performed the episiotomy constituted a medical emergency. Jaskey, in his discovery deposition, also characterized the situation as an emergency. Axelrod added that, given the circumstances, with plaintiff being in the second stage of labor and in pain, it was impractical for Jaskey to obtain consent for the procedure at that time. Both doctors testified regarding the risks an episiotomy is designed to mitigate. The procedure prevents a ragged and uncontrolled tear that can sometimes extend into the vagina. Copious bleeding, the leading cause of maternal death, can result. Compared to a tear, episiotomies are less painful and more cosmetically appealing. They also facilitate healing.

In ruling upon defendant's motion for summary judgment, the trial court first acknowledged that there is no question that plaintiff did not consent to having an episiotomy performed upon her. However, the trial court felt that the real issue in the case was whether an emergency existed and whether obtaining plaintiff's consent was impractical. It answered both questions affirmatively, relying on the testimony of defendant and Axelrod. Accordingly, the trial court granted summary judgment for defendant.

Because this case comes to us following a grant of summary judgment, review is de novo. Corona v. Malm, 315 Ill. App. 3d 692, 694 (2000). Summary judgment is appropriate only when no genuine issues of material fact exist and the movant is entitled to judgment as a matter of law. Kenner v. Northern Illinois Medical Center, 164 Ill. App. 3d 366, 373 (1987). The record must be construed liberally in favor of the party opposing the motion and strictly against the movant. Largosa v. Ford Motor Co., 303 Ill. App. 3d 751, 753 (1999). Summary judgment is a drastic means of disposing of litigation and should be granted only where the movant's right to judgment is clear and free from doubt. Purtill v. Hess, 111 Ill. 2d 229, 240 (1986).

In the present case, two overriding factual issues are relevant. First, whether plaintiff consented to the episiotomy is hotly disputed. Plaintiff contends that not only did she not consent to the procedure but also she expressly forbade it. As we are required to construe the record liberally in plaintiff's favor, we must accept this contention for the purpose of resolving this appeal. Second, it is undisputed that defendant performed the episiotomy in circumstances that constituted a medical emergency. Defendant and Axelrod both testified to this. Whether an emergency existed involved making an assessment of plaintiff's medical condition and hence must be established by expert testimony. Schindel v. Albany Medical Corp., 252 Ill. App. 3d 389, 398 (1993). Because plaintiff introduced no expert testimony to controvert the two doctors' testimony regarding the emergency nature of the procedure, we must take their testimony as true in assessing whether summary judgment is appropriate in this case. See Evanston Hospital v. Crane, 254 Ill. App. 3d 435, 440-41 (1993).

A battery has been defined as the unauthorized touching of the person of another. Gaskin v. Goldwasser, 166 Ill. App. 3d 996, 1011-12 (1988). Thus, at common law, a patient must consent before a physician renders medical treatment of any kind. In re Estate of Longeway, 133 Ill. 2d 33, 44 (1989). The United States Supreme Court noted long ago that "[n]o right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251, 35 L. Ed. 734, 737, 11 S. Ct. 1000, 1001 (1891). In an early case involving a medical battery, Justice Cardozo made the following observation: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages." Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914), overruled on other grounds by Bing v. Thunig, 2 N.Y.2d 656, 667, 143 N.E.2d 3, 9 (1957). Our legislature has recognized this right. See 755 ILCS 40/5 (West 1996) ("[A]ll persons have a fundamental right to make decisions relating to their own medical treatment, including the right to forgo life-sustaining treatment"). Thus, the necessity of obtaining consent before a medical procedure is performed has long been a part of American law. See also Pratt v. Davis, 224 Ill. 300, 305 (1906).

A corollary to the requirement that a patient's consent must be obtained prior to the performance of a medical procedure is that a patient is entitled to refuse medical treatment. Longeway, 133 Ill. 2d at 45. In fact, absent consent, a patient cannot be compelled to submit to a medical procedure even where the patient's life is in jeopardy. Longeway, 133 Ill. 2d at 45. In a medical-battery case, a plaintiff may recover by establishing either a total lack of consent to the procedure performed, that the treatment was contrary to the patient's will, or that the treatment was at substantial variance with the consent granted. Hernandez v. Schittek, 305 Ill. App. 3d 925, 930 (1999). It is unnecessary for a plaintiff to establish hostile intent on the part of the defendant; rather, the gist of an action for battery is the absence of consent on the plaintiff's part. Gaskin, 166 Ill. App. 3d at 1012.

There are, of course, exceptions to this rule. At issue in this appeal is what is sometimes referred to as the emergency exception. See Longeway, 133 Ill. 2d at 45. This exception provides a defense to physicians who render care in an emergency situation and is reflected in two of Illinois' pattern jury instructions. See Illinois Pattern Jury Instructions, Civil, Nos. 105.06, 105.07 (2000) (hereinafter IPI Civil). The trial court relied on IPI Civil No. 105.07 in reaching its decision. That instruction provides that consent need not be obtained if "an emergency arises and treatment is required in order to protect the patient's health, and it is impossible or impracticable to obtain consent either from the patient or from someone authorized to consent for him." IPI Civil No. 105.07. As noted above, uncontroverted testimony indicates that a medical emergency existed. However, in this case, we are faced with a rather unique circumstance. Defendant argues, and the trial court held, that ...


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