Secondary Authority Hypotheticals
The Fact Situation: Your client, Stephaine Coleman, was experiencing some intermittent vaginal bleeding and lower abdominal pain. She went to see her physician, Dr. Nowell. Dr. Nowell examined Ms. Coleman and advised her that she would require surgery to remove cysts from her right ovary and that the left ovary would be examined during surgery to check for any cysts that could not be found during the physical exam. Ms. Coleman agreed to the surgery but did voice her concerns about the surgery and the fact that she wanted to start a family. Dr. Nowell explained that the surgery would be done with a laparoscope. A consent form was signed where Ms. Coleman agreed to the surgery. During the surgical procedure, Dr. Nowell removed cysts from Ms. Coleman’s right ovary. As the surgery progressed, he determined that the cysts were too large and that it was necessary to remove the entire right ovary. Upon examining the left ovary during surgery, Dr. Nowell also found that there was a cyst on Ms. Coleman’s left ovary. At that point, he decided to remove that cyst as well. While removing the cyst, complications arose and Dr. Nowell was forced to do an emergency hysterectomy on Ms. Coleman. Ms. Coleman can no longer have children. She has retained your firm to represent her in a lawsuit against Dr. Nowell.
Questions: May a patient’s consent to the extension of a surgery or operation be implied, if so, under what circumstances? What is required to justify or warrant “necessary extension” of a surgery or operation?
HYPO B:
The Fact Situation: The University of Illinois was founded as a ‘cow college,’ an agricultural college. It has maintained a focus on agriculture even as it has attained a national reputation in a number of other fields. To this end, it maintains the South Farms, an essentially working farm devoted to teaching and research. In accord with this purpose it maintains a number of herds, among them swine.
Betty is an undergraduate attending the University of Illinois, and an active member of PETA. She believes all animals are wild and wonderful and should be free. Having seen the movie ‘Babe,’ she decided to free the piggies at South Farm.
That very night, Betty traveled to South Farm looking for animals to free. She spied a shed and was assailed by a horrible odor. It is locked and she enters the shed via a loose board to find a large number of boars housed in pens by two. Unknown to Betty, boars are raised in pairs to avoid the inevitable fights that occur and boars are not always wonderful. Betty struggled to open the pen and after doing so climbed into the pen to be with the boars (Oscar and Felix) as they enter into their new life of freedom. One of the boars, Oscar, ripped her from gam to ham. Fortunately, Betty was especially spry and avoided the worst of Oscar’s tusk. She limped off to the infirmary to have her wound treated.
She wishes to sue the University for its negligence.
Questions: Is the University liable to a trespasser for negligence?
HYPO C:
The Fact Situation: Bob attempted to shoot his wife Catherine one afternoon as she sat at her piano, playing Chopin before their large plate glass window. The drapes in this, their only living room window, were closed, obscuring the fact that their neighbor, Tim, was walking outside . Bob’s aim was terrible and in spite of being a rather easy target, Catherine escaped injury. The bullet instead went through the glass window and struck Tim in the head, killing him instantly. Prosecutors have charged Bob with first-degree (intentional) murder in the death of Tim. You are part of Bob’s defense team and wonder if that is the appropriate charge, given that Bob’s intent was not to kill Tim but to shoot Catherine.
Question: Is a charge of murder that includes the element of intent supportable when the victim was not the intended target? (HINT: “transferred intent”)
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