## Facts

- Helmer Bang experienced urinary problems and was referred for evaluation of an enlarged prostate.
- Bang consulted Dr. Frederic E. B. Foley, who recommended hospital admission for further cystoscopic examination.
- After evaluation, Foley proposed a transurethral prostatic resection, and Bang consented to prostate surgery.
- During the procedure, Foley also severed Bang’s spermatic cords, resulting in sterilization.
- Bang alleged this sterilizing step was not disclosed, was not authorized, and constituted an assault/unauthorized operation.
- Foley testified there was no immediate emergency or life-threatening condition requiring action without prior discussion.
- Bang and his wife sued for damages; the claim against the hospital was dismissed and not appealed.
- At the close of plaintiffs’ evidence, the trial court dismissed the claim against Foley on the merits; plaintiffs’ posttrial motion to vacate or for a new trial was denied.

## Issues

1. Whether the evidence required submission to the jury of the factual question whether Bang expressly or impliedly consented to severance of his spermatic cords as part of the prostate operation.
2. Whether, in the absence of an emergency, a physician must disclose foreseeable alternative operative courses and allow the patient to choose before proceeding.

## Decision

- The Minnesota Supreme Court reversed the dismissal and ordered a new trial.
- The court held that, on this record, whether Bang consented to the sterilizing step was a fact question for the jury.
- The court applied the rule that when alternative situations can be anticipated in advance and no immediate emergency exists, the patient should be informed of the alternatives and given an opportunity to decide before the physician proceeds.

## Legal Principles

- Performing a medical procedure beyond the scope of the patient’s consent may constitute an assault/battery (unauthorized operation), even if the procedure is medically accepted or routinely performed.
- When a physician can reasonably anticipate alternative operative possibilities and no immediate emergency exists, the physician should disclose those alternatives and obtain the patient’s decision before proceeding.
- Where the evidence conflicts regarding what was explained and what was authorized, the existence and scope of consent is for the jury, not for dismissal as a matter of law at the close of the plaintiff’s case.

## Conclusion

Because the evidence permitted differing findings on whether Bang consented to severance of his spermatic cords, the trial court erred in removing the consent issue from the jury; a new trial was required under the rule requiring disclosure and patient choice when alternatives are foreseeable and no emergency prevents consultation.


Bang v. Charles T. Miller Hosp., 251 Minn. 427, 88 N.W.2d 186 (Minn. 1958)