Torts I, Pages 100–103

Mohr v. Williams

Supreme Court of Minnesota, 1905


[Plaintiff consulted defendant, an ear specialist, concerning trouble with her right ear. On examining her, he found a diseased condition of the right ear, and she consented to an operation upon it. When she was unconscious under the anaesthetic, defendant concluded that the condition of the right ear was not serious enough to require an operation; but he found a more serious condition of the left ear, which he decided required an operation. Without reviving the plaintiff to ask her permission, he operated on the left ear. The operation was skillfully performed, and was successful. Plaintiff nevertheless brought an action for battery.

Procedural History:

In the court below the jury returned a verdict in favor of the plaintiff for $14,322.50. The trial judge denied defendant's motion for judgment notwithstanding the verdict, but granted a new trial on the ground that the damages were excessive. Both parties appeal.]


Is consent to one surgery consent to that surgery in another location?

Defendant's Arguments:

  • Doctors must do what is best for their patients.

  • Plaintiff's family physician was told of the condition of her ear and consented for her.

  • Plaintiff's ear was in fact diseased, so fixing it was not a assault and battery.


  • Doctors are allowed to give or extend treatment in an emergency that endangers the life of the patient, but no such condition is present here.

  • Plaintiff's family physician did not have the authority to consent to any change in the operation. He was only there to calm plaintiff's fears of something going wrong.

  • Any unconsented contact without privilege is a technical battery, even if it is helpful. However, this should be accounted for in damages.


Consent to one surgery is not consent to that surgery in another location, even if it helps.


Order affirmed.


On the second trial, P received a verdict and judgment for $39, and neither appealed.