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November 20, 2001

No. 2--00--1204

Plaintiff, Rachel Curtis, appeals the judgment of the circuitcourt of Du Page County granting summary judgment in favor ofdefendant, David G. Jaskey. Plaintiff contends that the trialcourt erred in determining that her battery claim was barredbecause defendant was reacting to a medical emergency when heperformed an episiotomy on her. For the reasons that follow, wereverse and remand this cause for further proceedings.

Plaintiff sought prenatal care from defendant for the firsttime in May 1996. She saw defendant three additional times in theperiod between her first visit and the delivery of her child. During the first visit, plaintiff asserts that she informeddefendant that he was not to perform an episiotomy duringchildbirth and that defendant agreed to her request. Plaintifffurther asserts that she reminded defendant of this conditionduring subsequent visits. Defendant disputes that he agreed thatan episiotomy would, under no circumstances, be performed. Instead, he contends that he stated he would try to avoidperforming one but would have to make the ultimate decision duringdelivery. 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 thatshe was consenting to an episiotomy. Additional conflictingevidence concerning whether plaintiff consented to the procedureexists in the record but need not be set forth here. Approximatelyfive hours after arriving at the hospital, plaintiff delivered herchild. Plaintiff's labor progressed very quickly. Shortly beforedelivery, plaintiff's posterior fourchette began to tear. Defendant performed an episiotomy about two minutes prior to thebirth.

Dr. Edward Axelrod testified on defendant's behalf in adiscovery deposition. Axelrod opined that the circumstances underwhich defendant performed the episiotomy constituted a medicalemergency. Jaskey, in his discovery deposition, also characterizedthe situation as an emergency. Axelrod added that, given thecircumstances, with plaintiff being in the second stage of laborand in pain, it was impractical for Jaskey to obtain consent forthe procedure at that time. Both doctors testified regarding therisks an episiotomy is designed to mitigate. The procedureprevents a ragged and uncontrolled tear that can sometimes extendinto the vagina. Copious bleeding, the leading cause of maternaldeath, can result. Compared to a tear, episiotomies are lesspainful and more cosmetically appealing. They also facilitatehealing.

In ruling upon defendant's motion for summary judgment, thetrial court first acknowledged that there is no question thatplaintiff did not consent to having an episiotomy performed uponher. However, the trial court felt that the real issue in the casewas whether an emergency existed and whether obtaining plaintiff'sconsent 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 summaryjudgment, review is de novo. Corona v. Malm, 315 Ill. App. 3d 692,694 (2000). Summary judgment is appropriate only when no genuineissues of material fact exist and the movant is entitled tojudgment as a matter of law. Kenner v. Northern Illinois MedicalCenter, 164 Ill. App. 3d 366, 373 (1987). The record must beconstrued liberally in favor of the party opposing the motion andstrictly against the movant. Largosa v. Ford Motor Co., 303 Ill.App. 3d 751, 753 (1999). Summary judgment is a drastic means ofdisposing of litigation and should be granted only where themovant's right to judgment is clear and free from doubt. Purtillv. Hess, 111 Ill. 2d 229, 240 (1986).

In the present case, two overriding factual issues arerelevant. First, whether plaintiff consented to the episiotomy ishotly disputed. Plaintiff contends that not only did she notconsent to the procedure but also she expressly forbade it. As weare required to construe the record liberally in plaintiff's favor,we must accept this contention for the purpose of resolving thisappeal. Second, it is undisputed that defendant performed theepisiotomy in circumstances that constituted a medical emergency. Defendant and Axelrod both testified to this. Whether an emergencyexisted involved making an assessment of plaintiff's medicalcondition 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 thetwo doctors' testimony regarding the emergency nature of theprocedure, we must take their testimony as true in assessingwhether summary judgment is appropriate in this case. See EvanstonHospital v. Crane, 254 Ill. App. 3d 435, 440-41 (1993).

A battery has been defined as the unauthorized touching of theperson of another. Gaskin v. Goldwasser, 166 Ill. App. 3d 996,1011-12 (1988). Thus, at common law, a patient must consent beforea physician renders medical treatment of any kind. In re Estate ofLongeway, 133 Ill. 2d 33, 44 (1989). The United States SupremeCourt noted long ago that "[n]o right is held more sacred, or ismore carefully guarded by the common law, than the right of everyindividual to the possession and control of his own person, freefrom all restraint or interference of others, unless by clear andunquestionable 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, JusticeCardozo made the following observation: "Every human being of adultyears and sound mind has a right to determine what shall be donewith his own body; and a surgeon who performs an operation withouthis patient's consent commits an assault, for which he is liable indamages." Schloendorff v. Society of New York Hospital, 211 N.Y.125, 129-30, 105 N.E. 92, 93 (1914), overruled on other grounds byBing v. Thunig, 2 N.Y.2d 656, 667, 143 N.E.2d 3, 9 (1957). Ourlegislature has recognized this right. See 755 ILCS 40/5 (West1996) ("[A]ll persons have a fundamental right to make decisionsrelating to their own medical treatment, including the right toforgo life-sustaining treatment"). Thus, the necessity ofobtaining consent before a medical procedure is performed has longbeen 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 mustbe obtained prior to the performance of a medical procedure is thata patient is entitled to refuse medical treatment. Longeway, 133Ill. 2d at 45. In fact, absent consent, a patient cannot becompelled to submit to a medical procedure even where the patient'slife is in jeopardy. Longeway, 133 Ill. 2d at 45. In a medical-battery case, a plaintiff may recover by establishing either atotal lack of consent to the procedure performed, that thetreatment was contrary to the patient's will, or that the treatmentwas at substantial variance with the consent granted. Hernandez v.Schittek, 305 Ill. App. 3d 925, 930 (1999). It is unnecessary fora plaintiff to establish hostile intent on the part of thedefendant; rather, the gist of an action for battery is the absenceof consent on the plaintiff's part. Gaskin, 166 Ill. App. 3d at1012.

There are, of course, exceptions to this rule. At issue inthis appeal is what is sometimes referred to as the emergencyexception. See Longeway, 133 Ill. 2d at 45. This exceptionprovides a defense to physicians who render care in an emergencysituation and is reflected in two of Illinois' pattern juryinstructions. See Illinois Pattern Jury Instructions, Civil, Nos.105.06, 105.07 (2000) (hereinafter IPI Civil). The trial courtrelied on IPI Civil No. 105.07 in reaching its decision. Thatinstruction provides that consent need not be obtained if "anemergency arises and treatment is required in order to protect thepatient's health, and it is impossible or impracticable to obtainconsent either from the patient or from someone authorized toconsent for him." IPI Civil No. 105.07. As noted above,uncontroverted testimony indicates that a medical emergencyexisted. However, in this case, we are faced with a rather uniquecircumstance. Defendant argues, and the trial court held, that theexistence of an emergency was sufficient to override plaintiff'sexpress refusal to permit defendant to perform an episiotomy uponher. In order to determine if the emergency exception can worksuch a result, we must examine its nature and basis.

The first reference in Illinois law we have located that shedslight upon the nature of the emergency exception occurred in Prattv. Davis, 118 Ill. App. 161, 165-66 (1905), where the courtobserved that "various cases which might be supposed of sudden andcritical emergency, in which the surgeon would be held justified inmajor or capital operations without express consent of the patient,might be referred to the same principle of an implied license." Later, the court noted that a surgeon has no right to perform anoperation unless "the consent of the patient is express, or isimplied by [the] circumstances." Pratt, 118 Ill. App. at 166-67. Thus, it appears, in its genesis, the emergency exception wasgrounded in notions of implied consent. We note that the juryinstructions that set forth the emergency exception cite Pratt, 224Ill. 300, which is the supreme court opinion that affirmed thelower court decision from which the language set forth above isdrawn. IPI Civil Nos. 105.06, 105.07.

The Restatement (Second) of the Law of Torts recognizes thatthe emergency exception is based on implied consent. It provides:

"Conduct that injures another does not make the actor liableto the other, even though the other has not consented to it if

(a) an emergency makes it necessary or apparentlynecessary, in order to prevent harm to the other, to actbefore there is opportunity to obtain consent from the otheror one empowered to consent for him, and

(b) the actor has no reason to believe that the other, ifhe had the opportunity to consent, would decline." Restatement (Second) of Torts