# Hershley v. Brown

> Missouri Court of Appeals · June 21, 1983 · 655 S.W.2d 671

URL: https://www.frixlaw.com/law-library/cases/9767220

## Case

- **Full name:** Shelley HERSHLEY and Roy Hershley, Plaintiffs/Appellants, v. Merlin D. BROWN, Defendant/Respondent
- **Court:** Missouri Court of Appeals
- **Decided:** June 21, 1983
- **Citations:** 655 S.W.2d 671; 1983 Mo. App. LEXIS 3417
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Turnage, Wasserstrom, Tur-Nage, Clark
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9767220

## How later opinions describe it (automated extraction)

- holding a complaint alleged a battery where patient requested elective sterilization procedure involving burning, cauterizing, and removing portions of the fallopian tubes, but surgeon instead performed sterilization procedure by using a Wolfe ring instrument and implanting a …

## Opinion text

On Motion for Rehearing or Transfer
PER CURIAM.
Dr. Brown has filed a Motion for Rehearing or Transfer to the Supreme Court. He contends that the opinion severely restricts physicians in the exercise of their best medical judgment in the method to be employed in performing an operation. He contrasts the method by which the operation is to be performed with the nature of the operation itself. Thus, Dr. Brown contends the operation which Mrs. Hershley consented to in this ease was a sterilization and the method by which that operation was to be performed was a matter of medical judgment resting solely in the discretion of Dr. Brown.
This argument misconstrues both the pleading and the opinion. The opinion points out that Mrs. Hershley pleaded that the operation to which she consented was a cauterization and cutting of the fallopian tubes. She alleges this operation was not performed but an operation was performed by which the Wolfe ring was inserted. The opinion treats the operation to which Mrs. Hershley consented and the one actually performed as being different operations in conformity with the pleading. In Wall v. Brim, 138 F.2d 478, 481 (5th Cir.1943), the court held that an operation performed without the patient’s consent is a battery or trespass. The court stated:
[T]hat if a physician advises his patient to submit to a particular operation and the patient weighs the dangers and results incident to its performance and finally consents, he thereby in effect enters into a contract authorizing his physician to operate to the extent of the consent given but no further. The same principle which supports the holding that a surgeon performing an operation without his patient’s consent, express or implied, commits a battery or trespass for which he is liable in damages, also supports the holding that a surgeon many not perform an operation different in kind from that consented to or one involving risks and results not contemplated.
See also 70 C.J.S. Physicians and Surgeons 48g, page 967 (1951); Powell, Consent to Operative Procedures, 21 Md.L.Rev. 189, 194 (1961).
In Lloyd v. Kull, 329 F.2d 168, 170 [4] (7th Cir.1964), the court stated that a written consent for an operation does not constitute a consent for any other operation when there is no evidence that a necessity arose during the authorized operation.
Construing the petition favorably to Mrs. Hershley, as this court must at this stage of the proceedings, the petition alleges a different operation was performed than the one for which consent was given. The opinion does not limit the physician in the exercise of his medical judgment in performing an operation but simply restates the well established law that a physician may not perform an operation different from the one for which consent was given in the absence of evidence showing a medical necessity to do so.
The Motion for Rehearing is overruled and the Motion to Transfer is denied.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9767220. Public record. Not legal advice.