b. Failure to Obtain Consent (Battery). The first medical consent lawsuits
came about when surgery was done without consent. In Schloendorff vs. Society of
New York Hospital (ICY, 1914), the patient successfully sued for battery because the
physician proceeded with surgery when the patient had only agreed to an exploratory
exam (an ether exam to determine the nature of a fibroid tumor). Justice Cardozo's oft-
quoted statement from that case is considered the root premise of consent law. Tort
law on assault and battery can be considered the foundation for the consent
requirement in the field of health care. Even a routine x-ray procedure is covered under
tort law. Medical and surgical procedures that involve touching the patient's person,
including the simplest manipulation of a limb, must be properly authorized. Otherwise,
the person performing the procedure may be subject to legal action for battery.
Obtaining the patient's consent.
Bars legal action for battery.
Informing the patient
Bars negligence for failure to inform.
Figure 1-2. Informing the patient and obtaining consent are related,
but legally separate duties.
SURGEON LIABLE FOR PROCEEDING WITH SURGERY WHEN CONSENT WAS
ONLY FOR AN EXPLORATORY EXAM
In Pugsley vs. Privette (Va., 7980), Mrs. Privette, a private patient of the hospital's
chief of surgery, requested that the surgeon be present when she underwent an
exploratory laparotomy by her gynecologist. The chief of surgery agreed, but could
not be found when Mrs. Privette arrived at the operating room. The patient then
indicated that she did not want to continue under those circumstances. The
gynecologist proceeded anyway, and during the operation nicked the patient's ureter.
She sued the gynecologist. The court ruled that the gynecologist was liable for
battery because he had proceeded with the operation when Mrs. Privette had, in
effect, revoked her consent. The court said, "It is immaterial to the issue of battery
that the jury found that the operation was not negligently performed. And it avails
little to argue now that no good purpose would have been served by the chief of
surgery's presence. It was Mrs. Privette's body on which the operation was to be
performed, and the decision was one peculiarly for her to make."
PLASTIC SURGEON WHO DOES MORE THAN THE PATIENT ASKED FOR IS
In Meretsy vs. Ellenby (Fla., 1979), the patient asked the plastic surgeon to remove a
bump on the bridge of her nose, but specifically directed that nothing be done to the
tip of her nose. When the physician ignored her express directions and altered the
tip of her nose, she successfully sued for battery.