THEA-BTORNEY GENERAL OFTEXAS

Honorable RaymondVowel1 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 TuberculosisHospital and give necessary blood transfusionswhen said patient'smother refuses to give consent to the transfusions,and related Dear Mr. Vowell: question.

In your letter of August 1, 1958, you state as follows:
"Wehave a patient at our East Texas

TuberculosisHospital, Miss Joyce Young, a colored female, age 18, who is in need of surgery. Her mother,who is a member of the Sect of JehovahWitnesses, has given her consent to the performance of surgerybut in a separate letterhas refused her consent to the use of blood transfusionsduring the operation. Our surgeon In his own judgment cannotperform the surgeryunless 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 ispertinent to this subject.
"Youropinionwith respect to the following questions is respectfullyrequested: "1. Under these facts,may we perform the surgeryusing blood transfusions if necessary?Honorable RaymondVowell, page 2. (w-498)

"2. Couldwe in a similar caseperformmedically recognized surgery on a patient in one of our hospitalswhere the responsiblerelative or guardian refuses to consent to the performance of any surgery?" There is no statutoryprovision, as such, prohibiting a doctor from operating on a minor without the consent of the parent. The prohibition comes from the operationbeing a technicalassault 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 operatlonhe will find himself in this position: (1) If blood transfusion becomes necessary and the doctor gives suchblood 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 transfusionbecomes necessary and he fails to give blood transfusion,and injuries or death result therefrom,he is liable for the reason of suchnegligence.

Thus, it is our opinion that the conditiona! consent of the parent in the instant case amounts tono consent at all. The surgeonwill 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 Legislatureprovided for two exceptions to the consent rulementioned above. One of the exceptionspertains to caseswhere there is no immediatereply to a request for the necessary consent,and the other exception pertains to those caseswhere 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.

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Honorable RaymondVowell, page 3. 

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SUMMARY

A surgeonemployedby the Board for Texas State Hospitals and Special Schoolsmay not operate on or give blood transfusions to a childwhere 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 RaymondV. Lofton, Jr. John B. Webster
REVIEWED FOR THE ATTORNEY GENERAL
BY: J. C. Davis, Jr.