## Facts

- Hop Sang suffered a severe hand injury in a motor-car accident and was taken to a hospital.
- Dr. Mulloy, a surgeon, was asked to treat Hop Sang’s hand.
- Before surgery, Hop Sang expressly stated he did not want his hand amputated and indicated a wish to have his own doctor elsewhere involved.
- In the operating room, Hop Sang repeated that he did not want amputation.
- Mulloy stated he would act based on the condition found after anesthesia; Hop Sang did not clearly assent, and he had limited English proficiency.
- After anesthesia, Mulloy concluded the hand could not be saved and that immediate amputation was necessary to prevent blood poisoning; two other physicians supported the medical necessity.
- Mulloy sued Hop Sang for professional fees for the operation.
- Hop Sang counterclaimed for trespass to the person, seeking damages including general damages, lost wages, and the cost of an artificial hand.
- The trial judge found the amputation medically necessary and competently performed, but not properly authorized; Mulloy’s fee claim was dismissed, and Hop Sang was awarded $50 general damages for trespass while other damages were denied.
- Mulloy appealed; the Appellate Division affirmed.

## Issues

1. Whether an amputation performed after a patient’s express pre-operative refusal, without clear subsequent consent, constitutes trespass to the person (battery) despite medical necessity and competent performance.
2. Whether claimed losses (lost wages and cost of an artificial hand) were legally caused by the unauthorized operation or by the original accident.
3. Whether a physician may recover professional fees for a medically necessary but unauthorized surgical procedure.

## Decision

- The Appellate Division affirmed the dismissal of Mulloy’s claim for professional fees.
- The court affirmed liability for trespass to the person and the $50 general damages award.
- The court affirmed the denial of lost wages and artificial-hand costs as not attributable to the unauthorized nature of the amputation.

## Legal Principles

- Consent to medical treatment is procedure-specific; an express refusal of a particular procedure remains effective unless clearly withdrawn through informed agreement.
- A medically necessary and properly performed operation may still constitute battery if performed without valid consent.
- Medical necessity does not, by itself, supply legal authorization where the patient has expressly refused the procedure and the circumstances do not justify implied consent.
- A physician who commits battery in performing an unauthorized procedure may be barred from recovering fees for that procedure.
- Damages for battery may be limited where claimed economic losses are caused by the underlying accident or condition rather than by the unauthorized touching.

## Conclusion

The court held that amputating a patient’s hand after an express refusal, without a clear and informed change in consent, is an actionable trespass to the person even if medically necessary and competently performed; the surgeon was denied fees, and damages were confined to modest general compensation because additional losses were attributed to the accident rather than the unauthorized amputation.


Mulloy v. Hop Sang, 1 W.W.R. 714 (Alta. S.C. App. Div. 1935)