THEA-BTORNEY GENERAL 

OFTEXAS 

Honorable Raymond Vowel1 

Executive Director 

Opinion No. WW-498 

Board for Texas State Hospitals Re: Under given circumstances, 

and Special Schools can a surgeon operate on 

Austin, Texas a patient of the East 

Texas Tuberculosis Hospital 

and give necessary blood 

transfusions when said 

patient's mother refuses 

to give consent to the 

transfusions, and related 

Dear Mr. Vowell: question. 

In your letter of August 1, 1958, you state as follows: 

"We have a patient at our East Texas 

Tuberculosis Hospital, Miss Joyce Young, 

a colored female, age 18, who is in need 

of surgery. Her mother, who is a member 

of the Sect of Jehovah Witnesses, has 

given her consent to the performance of 

surgery but in a separate letter has refused her consent to the use of blood 

transfusions during the operation. Our 

surgeon In his own judgment cannot perform the surgery unless he could use 

blood for transfusion in case it became 

necessary. We call your attention to the 

provisions of Article 317&b-2, V. C. S., 

which is pertinent to this subject. 

"Your opinion with respect to the following questions is respectfully requested: 

"1. Under these facts, may we perform 

the surgery using blood transfusions if 

necessary? 
Honorable Raymond Vowell, page 2. (w-498) 

"2. Could we in a similar case perform medically recognized surgery on a 

patient in one of our hospitals where 

the responsible relative or guardian refuses to consent to the performance of 

any surgery?" 

There is no statutory provision, as such, 

prohibiting a doctor from operating on a minor without the consent of the parent. The prohibition comes 

from the operation being a technical assault on the 

minor, for which the doctor is liable for damages as 

a matter of law and such damages are not "dependent 

upon the extent of the Injuries to the minor child." 

Moss v. Rishworth, 222 S.W. 225, (Comm. App. 1920). 

Therefore, if the surgeon, under the circumstances of this request, performs the operatlon he will 

find himself in this position: (1) If blood transfusion becomes necessary and the doctor gives such blood 

transfusion, he has violated the consent of the parent 

and has performed an operation on a minor without consent of the parent and has committed technical assault 

for which he is liable for damages as a matter of law; 

(2) If blood transfusion becomes necessary and he fails 

to give blood transfusion, and injuries or death result 

therefrom, he is liable for the reason of such negligence. 

Thus, it is our opinion that the conditiona! 

consent of the parent in the instant case amounts to no 

consent at all. The surgeon will become liable for 

technical assault if the operation is performed. Therefore, unless your surgeon is willing to assume liability 

for technical assault, the answer to both of your questions must be "no". 

In the Article you refer to, Article 3174b-2, 

the Legislature provided for two exceptions to the consent rule mentioned above. One of the exceptions pertains to cases where there is no immediate reply to a 

request for the necessary consent, and the other exception pertains to those cases where there is no guardian 

or responsible relative to whom request for consent can 

be made. Neither of these exceptions is applicable to the 

facts of the instant case. 
- 

Honorable Raymond Vowell, page 3. (w-498 1 

SUMMARY 

A surgeon employed by the Board for 

Texas State Hospitals and Special 

Schools may not operate on or give 

blood transfusions to a child where 

the parent has refused to consent to 

the same without incurring the possibility of civil liability. 

Sincerely, 

WILL WILSON 

Atzrney General of Texas 

JH:cl:zt 

Jay Howell 

Assistant 

APPROVED: 

OPINION COMMITTEE 

Gee. P. Blackburn, Chairman 

John Reeves 

Raymond V. Lofton, Jr. 

John B. Webster 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: J. C. Davis, Jr.