The Court Decides Perin v. Hayne 210 n.W.2d 609 (Iowa 1973) McCormick, J.

This is an appeal from a directed verdict for a doctor in a malpractice action. We affirm. The claim arose from an anterior approach cervical fusion performed on plaintiff Ilene Perin by defendant Robert A. Hayne.... The fusion was successful in eliminating pain, weakness and numbness in plaintiff's back, neck, right arm and hand caused by two protruded cervical discs, but plaintiff alleged she suffered paralysis of a vocal chord [sic] because of injury to the right recurrent laryngeal nerve during surgery.... The injury reduced her voice to a hoarse whisper. She sought damages on four theories: specific negligence, res ipsa loquitur, breach of express warranty and battery or trespass. After both parties had rested, the trial court sustained defendant's motion for directed verdict, holding the evidence insufficient to support jury consideration of the case on any of the pleaded theories. Plaintiff assigns this ruling as error. We must review each of the pleaded bases for recovery in the light of applicable law and the evidence. I. Specific negligence. Plaintiff alleges there was sufficient evidence to support jury submission of her charge [that] defendant negligently cut or injured the recurrent laryngeal nerve. Plaintiff had protruded discs at the level of the fifth and sixth cervical interspaces. The purpose of surgery was to remove the protruded discs and fuse the vertebrae with bone dowels from her hip. Removal of a disc ends the pinching of the nerve in the spinal column which causes the patient's pain. The bone supplants the disc. The procedure involves an incision in the front of the neck at one side of the midline at a level slightly below the "Adam's apple." Four columns run through the neck. The vertebrae and spinal cord are in the axial or bone column at the rear. In order to get to the axial column the surgeon must retract the visceral column which lies in front of it. The visceral column, like the vascular columns on each side of it, is covered with a protective fibrous sheath, called fascia. It contains the esophagus and trachea. The recurrent laryngeal nerve, which supplies sensitivity to the muscles that move the vocal chord [sic], is located between the esophagus and trachea. The surgeon does not enter the visceral column during the cervical fusion procedure. The same pliancy which enables the neck to be turned enables the visceral column to be retracted to one side to permit access to the axial column. The retraction is accomplished by using a gauze-padded retractor specifically designed for retraction of the visceral column during this surgery. The record shows the defendant used this procedure in the present case. Plaintiff was under general anesthetic. The anesthesia record is normal, and there is no evidence of any unusual occurrence during surgery. Defendant denied any possibility the laryngeal nerve was severed. He said it could not be severed unless the visceral fascia was entered, and it was not. He also believed it would be impossible to sever the nerve during such surgery without also severing the esophagus or trachea or both. [An expert witness for the plaintiff testified that it would be unusual to specifically encounter the laryngeal nerve during this surgery but that "the injury could occur despite the exercise of all proper skill and care."] Defendant testified he did not know the cause of the injury but presumed it resulted from contusion of the nerve incident to retraction of the visceral column. He thought plaintiff's laryngeal nerve may have been peculiarly susceptible to such injury. He insisted the surgery was done just as it always was and if he were doing it again he would do it the same way. He said one study has shown the surgery will result in paralysis of a vocal chord [sic] in two or three-tenths of one percent of cases in which it is used. He also said there is no way to predict or prevent such instances. ... In considering the propriety of the verdict directed for defendant we give the evidence supporting plaintiff's claim the most favorable construction it will reasonably bear. We recognize three possible means to establish specific negligence of a physician. One is through expert testimony, the second through evidence showing [that] the physician's lack of care is so obvious as to be within comprehension of the layman, and the third (actually an extension of the second) evidence that the physician injured a part of the body not involved in the treatment. The first means is the rule and the others are exceptions to it. In this case plaintiff asserts [that] a jury question was generated by the first and third means. We do not agree. Plaintiff alleges the laryngeal nerve was negligently cut or injured. The record is devoid of any evidence the nerve was severed during surgery.... The doctors agree the technique employed by defendant was proper. The sole basis for suggesting the expert testimony would support a finding of specific negligence is that the nerve was injured during retraction. Where an injury may occur despite due care, a finding of negligence cannot be predicated solely on the fact it did occur. ... Plaintiff also maintains there is evidence of negligence from the fact this is a case of injury to a part of the body not involved in the treatment. However, that is not so. The surgical procedure did include retraction of the visceral column. It was very much in the surgical field. ... Trial court did not err in directing a verdict for defendant on the issue of specific negligence. II. Res ipsa loquitur. Plaintiff also alleges the applicability of the doctrine of res ipsa loquitur. Our most recent statement of the doctrine appears in [a 1973 case]: Under the doctrine of res ipsa loquitur, where (1) injury or damage is caused by an instrumentality under the exclusive control of defendant and (2) the occurrence is such as in the ordinary course of things would not happen if reasonable care had been used, the happening of the injury permits, but does not compel, an inference defendant was negligent. The contest in this case concerns presence of the second foundation fact [from the quoted paragraph]. ... Defendant argues the second foundation fact for res ipsa loquitur is absent because it does not lie in the common knowledge of laymen to say injury to the laryngeal nerve does not occur if due care is exercised in anterior approach cervical fusion surgery. We must initially decide what has previously been an open question in this jurisdiction: may the common experience to establish the second foundation fact for res ipsa loquitur be shown by expert testimony? [The court proceeds to review cases from Wisconsin, California, Oregon, and Washington, plus three legal treatises on the subject. It quotes with favor the following:] In the usual case the basis of past experience from which this conclusion may be drawn is common to the community, and is a matter of general knowledge, which the court recognizes on much the same basis as when it takes judicial notice of facts which everyone knows. It may, however, be supplied by the evidence of the parties; and expert testimony that such an event usually does not occur without negligence may afford a sufficient basis for the inference. Thus we disagree with defendant's contention [that] the second foundation fact must be based exclusively on the common knowledge of laymen. In this case, however, even considering the expert testimony, the record at best only supports an inference [that] plaintiff suffered an extremely rare injury in anterior approach cervical fusion surgery which may occur even when due care is exercised. Rarity of the occurrence is not a sufficient predicate for application of res ipsa loquitur.... There is no basis in the present case, in expert testimony or otherwise, for saying plaintiff's injury is more likely the result of negligence than some cause for which the defendant is not responsible. ... We do not believe there was any basis in this case for submission of res ipsa loquitur. Trial court did not err in refusing to submit it. III. Express warranty. [The court dismisses this count, saying that the evidence supporting her argument that the physician guaranteed a good result was equivocal in nature: "There comes a point when a question of fact may be generated as to whether the doctor has warranted a cure or a specific result. However, in the present case the evidence does not rise to that level."] IV. Battery or trespass. Plaintiff contends there was also sufficient evidence to submit the case to the jury on the theory of battery or trespass. In effect, she alleges she consented to fusion of two vertebrae (removal of only one protruded disc) thinking there would be a separate operation if additional vertebrae had to be fused. She asserts the fact four vertebrae were fused combined with defendant's assurances and failure to warn her of specific hazards vitiated her consent and makes the paralyzed vocal chord [sic] the result of battery or trespass for which defendant is liable even without negligence. There was no evidence or contention by her in the trial court nor is there any assertion here that she would not have consented to the surgery had she known those things she says were withheld from her prior to surgery. Defendant testified plaintiff was fully advised as to the nature of her problem and the scope of corrective surgery. He acknowledges he did not advise her of the hazard of vocal chord [sic] paralysis. He believed the possibility of such occurrence was negligible and outweighed by the danger of undue apprehension if warning of the risk was given. [The court next begins a discussion of the distinction between consent and informed consent, quoting with approval from its own landmark case Cobbs v. Grant:] Where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery. However, when an undisclosed potential complication results, the occurrence of which was not an integral part of the treatment procedure but merely a known risk, the courts are divided on the issue of whether this should be deemed to be a battery or negligence. ... We agree with the majority trend. The battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented. When 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. However, when the patient consents to certain treatment and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears; rather, the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information. In that situation the action should be pleaded in negligence. From our approval of this analysis it should be clear we believe the battery or trespass theory pleaded by plaintiff in this case is limited in its applicability to surgery to which the patient has not consented. There must be a substantial difference between the surgery consented to and the surgery which is done. Plaintiff asserts she consented to only one fusion rather than two. Assuming this is true, the most that could be argued is [that] the second fusion was a battery or trespass. But she does not claim damages for a second fusion. She asks damages because of injury to the laryngeal nerve during surgery. The evidence is undisputed that whether one or two fusions were to be done the path to the axial column had to be cleared by retraction of the visceral column. Hence, any injury caused by such retraction occurred during a procedure to which consent had been given. Retraction of the visceral column during the surgery was not a battery or trespass. We have no occasion to reach the question whether failure to advise plaintiff of the risk of laryngeal nerve injury would in the circumstances of this case have generated a jury issue on negligence, but we do point out that recovery on such basis is precluded unless a plaintiff also establishes he would not have submitted to the procedure if he had been advised of the risk.... There is no evidence plaintiff would have withheld her consent in this case. ... Affirmed.

Discussion Questions

Has due care been shown? Does it need to be?

What is the "second foundation fact," and how does "common experience" matter in relation to it?

The opinion states, "There must be a substantial difference between the surgery consented to and the surgery which is done [for a battery case to be made]." What would amount to a "substantial difference" in your mind? What if throat cancer had been discovered and cleanly removed with no aftereffects? Would that procedure be a substantial difference justifying damages for battery even though no other injury (and, in fact, a benefit) had resulted?

Why did the court "have no occasion" to decide whether failure to advise the plaintiff of the risk of nerve injury raised a negligence issue?

[4/2, 09:10] +254 721 751190: Flag

Question 6: Which statement best describes a 'meeting of minds'? (2 marks)

A. Where the parties agree on most of the essential terms of a contract.

B. Where there has been a valid acceptance of an offer; i.e. an agreement.

C. This is generally a stage in the negotiations, where the parties agree on the conclusions that should be reached.

D. This is stage before the contract is put formally in writing and signed by the parties.

Question 7: In Beswick v. Beswick (1967) the court held that since Mrs Beswick was not part of the contract made between her late husband and nephew, she had no rights under that contract. If the case was decided today, which statute would likely reverse the outcome of Beswick's case? (2 marks)

A. The Women's Charter.

B. The Agreement of Third Parties Act.

C. The Contracts (Rights of Third Parties) Act.

D. The Unfair Contracts Terms Act.

Question 8: Once a contract is reduced in writing, evidence cannot be introduced to contradict, vary, add to or subtract from the written agreement. What is this known as? (2 marks)

A. The Golden Rule, as suggested in the interpretation of contracts.

B. The Rule in Pinnel's Case, as interpreted in Beswick v. Beswick (1967).

C. The Parol Evidence Rule, as codified in the Evidence Act.

D. The Rule of Law.

Question 9: In Olley v Marlborough Court Ltd (1949), what led the court to decide that the exclusion clause found in the hotel room was not binding on the couple who checked into the hotel? (2 marks)

A. The court held that the exclusion clause was not binding on the couple because it was introduced after the contract had been made at the reception; the couple only became aware of the term when they went up to their room.

B. The court held that the exclusion clause was not binding on the couple because it was considered to be a ludicrous term.

C. The court held that the exclusion clause was not binding on the couple because it would be against public policy that a hotel could escape liability for a breach of contract on its part.

D. The court was of the opinion that the hotel, having insurance, would be in a position to reimburse the couple for the valuables lost. 5

Question 10: In the absence of any employer's legitimate interest to protect, which vitiating factor would render a contractual term restraining an employee from working for a competitor after he/she leaves his current employment unenforceable? (2 marks)

A. Public policy.

B. Illegality.

C. Misrepresentation.

D. Unconscionability

Label each entry in the list as dealing with a microeconomic topic or a macroeconomic topic. Macroeconomic | Motor vehicle production in China is growing by 10 percent a year. Microeconomic Coffee prices rocket. Macroeconomic Globalization has reduced African poverty. Macroeconomic The government must cut its budget deficit. Microeconomic Apple sells 20 million iPhone 6 a month. Click to select your answer(s). Save for LaterWhich of the following contracts is an EXCEPTION to the privity of contract rule? Select one: Q a. A contract for the sale of a vehicle. O b. A contract for the sale of an article of clothing. c. A life insurance contract. O d. A contract for a painter to paint your house.Question 24 2 pts Which of the following is/are true statement(s): The 5th Amendment protects against self-incriminatingcivil proceedings. O For fake imprisonment, an individual can be detained for as little as a few minutes, O Vicarious liability imposes liability for acts of 3rd parties AND for false imprisonment, an individual can be detained for as little as a few minutes. O Vicarious liability imposes liability for acts of 3rd parties