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Keywords

plaintiffdefendanttrialverdictjury instructions
plaintiffdefendantdepositiontrialverdictmotionsustainedrespondent

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Rothe v. Hull, 352 Mo. 926, 180 S.W.2d 7

Facts

Nadine Rothe experienced severe abdominal pain and was examined by John S. Hull, who subsequently arranged for her to undergo surgery at a hospital. During the operation, Hull removed both her appendix and Fallopian tubes, claiming that the tubes were diseased and needed to be removed. The plaintiff contended that she had not consented to the removal of her tubes, while Hull argued that he had implied consent based on the authorization given by her husband and her own statements.

Plaintiff was suddenly stricken with a violent pain in her abdomen. Defendant called at her home to attend her. He made an examination, obtained a blood specimen and went to his office for an examination of the specimen. After the examination, and over the telephone, he directed that plaintiff be taken to the hospital, where he arranged for the operation.

Issue

Did the trial court err in granting a new trial based on the claim that the jury instructions regarding implied consent were erroneous?

The court ruled that instructions Nos. IV and VII given at request of defendant were erroneous and for that reason sustained the motion for a new trial.

Rule

A physician may perform additional procedures during surgery if the patient has given implied consent for the physician to use their judgment regarding necessary medical interventions.

The instruction conforms to defendant's theory of implied authority to remove the tubes, if in his judgment they should be removed, but respondent says the instruction was not supported by the evidence.

Analysis

The court found that there was sufficient evidence to support the jury instructions that allowed for a verdict in favor of the defendant based on the theory of implied consent. The evidence indicated that the plaintiff had authorized Hull to use his judgment regarding her medical condition, which included the potential removal of her Fallopian tubes if deemed necessary.

We think the evidence was entirely adequate to support the instruction as given. It is immaterial that some of the quoted evidence appeared in the deposition.

Conclusion

The appellate court reversed the trial court's order for a new trial, directing that judgment be entered for the defendant based on the jury's verdict.

The court erred in granting plaintiff a new trial on the theory that instructions IV and VII were erroneous.

Who won?

John S. Hull prevailed in the case because the appellate court found that the jury instructions were appropriate and supported by evidence.

The judgment is reversed and the cause remanded with directions to enter judgment for the defendant on the verdict of the jury.

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