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Law School Case Brief

Mink v. Univ. of Chi. - 460 F. Supp. 713 (N.D. Ill. 1978)


The gist of the action for battery is not the hostile intent of the defendant, but rather the absence of consent to the contact on the part of the plaintiff. The essence of the question in a battery case involving a physician is what did the patient agree with the physician to have done, and was the ultimate contact by the physician within the scope of the patient's consent. To state a cause of action for battery, the plaintiffs must allege intentional acts by the defendants resulting in offensive contact with the plaintiffs' persons, and the lack of consent to the defendants' conduct. 


Plaintiffs filed an action on behalf of themselves and some 1,000 women who were given diethylstilbestrol ("DES") as part of a medical experiment conducted by the defendants, University of Chicago and Eli Lilly & Company, between September 29, 1950, and November 20, 1952. The drug was administered to the plaintiffs during their prenatal care at the University's Lying-In Hospital as part of a double blind study to determine the value of DES in preventing miscarriages. The women were not told they were part of an experiment, nor were they told that the pills administered to them were DES. Plaintiffs claim that as a result of their taking DES, their daughters have developed abnormal cervical cellular formations and are exposed to an increased risk of vaginal or cervical cancer. Plaintiffs also allege that they and their sons have suffered reproductive tract and other abnormalities and have incurred an increased risk of cancer. One of the actions filed alleged that the defendants committed a series of batteries on the plaintiffs by conducting a medical experiment on them without their knowledge or consent. The administration of DES to the plaintiffs without their consent is alleged to be an "offensive invasion of their persons" which has caused them "severe mental anxiety and emotional distress due to the increased risk to their children of contracting cancer and other abnormalities." Defendants, hospital and drug company, filed a motion to dismiss the complaint.


Was the battery action sustainable?




The court held that the action was sustainable as a battery because there was a total lack of consent by the patients as they had no knowledge that DES was being administered to them. The court held that dismissal of the battery count was not warranted because questions relating to patients' consent were questions of fact, which were to be determined by the jury. The court dismissed the products liability and duty to notify counts because the patients could not rely on injury to their children to state claims for relief for themselves, even though they alleged mental anxiety and emotional distress as a consequence of the injury to their children. Although the patients amended their products liability count to include allegations of injury to some of the patients, the court upheld the dismissal because the patients failed to allege physical injuries to themselves. The court dismissed the amended duty to notify count, which only sought injunctive relief, because the action was moot.

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