Ashcraft v. King (278 Cal. Rptr. 900) 1991

…In 1983, plaintiff Daisy Ashcraft, age 16, was diagnosed as having scoliosis, a curvature of the spine, destined to become debilitating if not corrected. Ms. Ashcraft was referred to defendant John D. King, M.D., an orthopedic surgeon.

Ms. Ashcraft went to Dr. King's office for a consultation. She was accompanied by her mother, Lulu Ashcraft. At that meeting Dr. King recommended surgery and described the procedure generally. During the course of the consultation Dr. King and the Ashcrafts discussed the subject of blood transfusions, including the use of family-donated blood in the operation.

Lulu Ashcraft and Dr. King gave very different accounts of the conversation about use of family-donated blood, and their two versions were among the principal factual issues at trial. We discuss this testimony in more depth below. (See pp. 612-613, post.) Essentially, plaintiff's mother testified she insisted the operation be performed using only family-donated blood. Dr. King conceded the subject of family-donated blood was discussed but only in terms of whether it was "possible" for the family to donate blood to be used in Ms. Ashcraft's operation. Both parties agree Dr. King informed Ms. Ashcraft and her mother they should contact officials at Children's Hospital, where the operation would be performed, to arrange for family-donated blood.

Ms. Ashcraft's mother and father and several other relatives went to Children's Hospital and gave blood before and during the operation. None of this blood ever went to Daisy Ashcraft. Instead, all of the blood Ms. Ashcraft received during the operation came from the general supplies on hand at Children's Hospital.

At the time of this surgery, in 1983, no test was available to determine whether blood was contaminated with the human immunodeficiency virus (HIV), the cause of AIDS. It was not until 1987 the hospital discovered Daisy Ashcraft had been transfused during surgery with blood from an HIV positive donor. Ms. Ashcraft went to the hospital for a blood test the day she received this information. The test was positive.

In her medical malpractice suit against Dr. King, Ms. Ashcraft sought damages on the theories of negligence and battery. The battery theory rested on Ms. Ashcraft's contention she had specifically conditioned her consent to surgery on the understanding only family-donated blood would be used in her transfusions but Dr. King willfully ignored that condition.

After all the evidence was received, the trial court granted Dr. King's motion for nonsuit on the battery cause of action. The case was submitted to the jury only on the negligence theory. After five days of deliberation, the jury returned a verdict in favor of defendant by a vote of nine to three.

I. A Patient Has the Right to Impose Express Limitations or Conditions on a Doctor's Authority to Perform an Operation. A Doctor Is Subject to Liability for Battery for Exceeding the Conditions Imposed by the Patient.

As a general rule, one who consents to a touching cannot recover in an action for battery. Thus, one who gives informed consent to a surgery cannot recover for resulting harm under a theory of battery. (Cobbs v. Grant (1972); Keister v. O'Neil (1943) 59 Cal.App.2d 428, 434-.) However, it is well recognized a person may place conditions on the consent. If the actor exceeds the terms or conditions of the consent, the consent does not protect the actor from liability for the excessive act.

The rule of conditional consent has been applied in battery actions against physicians and surgeons in California and many other jurisdictions. (Grieves v. Superior Court (1984 ….)

In the present case, Ms. Ashcraft's claim of battery rested on the theory that although the operation was consented to, the consent was subject to a specific condition: only family-donated blood would be used. If Ms. Ashcraft could establish the existence of this condition and its breach by Dr. King, she would establish a battery….

A battery is any intentional, unlawful and harmful contact by one person with the person of another. (Delia S. v. Torres (1982).) A harmful contact, intentionally done is the essence of a battery. A contact is "unlawful" if it is unconsented to. (Estrada v. Orwitz (1946) In order to recover on a theory of battery, Ms. Ashcraft had to establish: (1) her consent to the operation was conditioned on the use of only family-donated blood; (2) defendant intentionally violated this condition while performing the operation; (3) Ms. Ashcraft suffered harm as a result of defendant's violation of the condition.

At trial it was undisputed no family-donated blood was used in the operation on Ms. Ashcraft. It was also undisputed some of the blood given Ms. Ashcraft in the operation was contaminated with the HIV, the cause of AIDS, and that as a result Ms. Ashcraft is HIV positive.

Therefore, the questions on appeal are whether, accepting all evidence favorable to the plaintiff as true, indulging every legitimate favorable inference that can be drawn from it, and disregarding all conflicting evidence and inferences, there was sufficient evidence from which the jury could have determined Ms. Ashcraft's consent to the operation was conditioned on the use of family-donated blood only and that defendant intentionally exceeded this condition in performing the operation.

We have concluded Ms. Ashcraft's evidence was sufficient to meet this test and, thereby, overcome the motion for nonsuit.

A. Consent Conditional on Family-donated Blood

Lulu Ashcraft, Ms. Ashcraft's mother, testified that when she and Ms. Ashcraft first discussed the surgery with the defendant, Dr. King, "he said that they will recycle her blood and he said there may be some more blood required, and I told Dr. King that I wanted . . . only family blood." Dr. King responded that Ms. Ashcraft should make arrangements for family-donated blood directly with the hospital. On cross-examination, Lulu Ashcraft testified she specifically remembered telling Dr. King, at their first meeting, she wanted "only family blood," and, in her deposition testimony read to the jury….

Based on the testimony of Ms. Ashcraft and her mother that they wanted only "family blood" used in the operation and defendant's acknowledgement: "that's fine," and his instruction to the Ashcrafts to contact the hospital to make arrangements, the jury could have found Ms. Ashcraft's consent to the operation was conditioned on the use of "family blood."

In an action for civil battery the element of intent is satisfied if the evidence shows defendant acted with a "willful disregard" of the plaintiff's rights. (Lopez v. Surchia (1952)) In the context of battery in a medical procedure, "[w]hen the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present." (Cobbs v. Grant.)

Evidence in this case showed defendant had permission to operate on condition he used family-donated blood but that he operated using blood from the hospital's general supply. Under the rationale of Cobbs, this evidence was sufficient to allow the jury to infer an intent to willfully disregard plaintiff's conditional consent.

Defendant responds that even if Ms. Ashcraft's consent to surgery was conditioned on the use of family-donated blood his violation of that condition did not result in a battery because the condition related only to a "collateral matter." The cases defendant cites do not support his argument. (See Freedman v. Superior Court (1989); Rains v. Superior Court (1984).) Freedman and Rains dealt with the question whether a battery action would lie against a doctor on the basis of the patient's mistaken consent to treatment. In Rains, the plaintiffs, psychiatric patients, agreed to beat each other up after defendants fraudulently represented to them this "sluggo therapy" would have a therapeutic benefit. In Freedman, the plaintiff consented to use of the drug Pitocin during labor on defendant's representation it would prevent infection when, in fact, it was being prescribed to induce labor. The court in Freedman held: "To vitiate consent the mistake '"must extend to the essential character of the act itself, which is to say that which makes it harmful or offensive . . . rather than to some collateral matter which merely operates as an inducement. . . ., quoting Rains.) In Rains, the court held "sluggo therapy's" lack of therapeutic value vitiated plaintiff's consent but in Freedman the essential character of the treatment was therapeutic "and the deception by the physician as to the specific medical objective was a collateral matter not vitiating consent."

The irrelevance of Freedman and Rains to the present case is readily apparent. Ms. Ashcraft did not contend she made a mistake in consenting to the operation or that defendant engaged in any fraud or misrepresentation as to the therapeutic character of the proposed treatment.

Where, as here, the patient has expressly conditioned her consent on certain acts being performed by the doctor, the patient has made that condition or event a matter of primary importance. To label such a condition merely "collateral" is to ignore the patient's "right, in the exercise of control over his own body to determine whether or not to submit to lawful medical treatment." (Cobbs v. Grant)….