The sun. [volume] (New York [N.Y.]) 1833-1916, 1905-04-02
The Necessity OF Consent to Surgi-
cal Operations.

cal Operations.
A great deal Of interest and some
anxiety have been aroused among mem
bers Of the medical profession in this
country by a recent lawsuit in Minnesota
involving the question Of the necessity
Of obtaining the patients consent to
surgical operation. The plaintiff, a young
woman, complained that the defendant,
q surgeon, had been employed by her to
perform an operation upon her right ear;
but that after she was etherized he had
operated upon the left ear, although
she had never given her consent that any
operation should be performed upon that
organ. The defence appears to have been
that although the original intention Of the
surgeon was 20 operate upon the right ear
he discovered, upon the fuller examina-
ton which he was enabled TO make when
the patient was put under ether, that tho
left ear was the more seriously diseased
Of the two, and that he operated upon the
left ear upon the understanding that the
patient = placing herself in his hands
had tacitly consented that he might do
90 II he deemed it advisable in the exer-
else Of his best judgment. The Judge
who presided at the trial held that no
such consent could be implied from the
circumstances Of the case, and that the
defendant was at all events liable for a
technical assault The jury gave the plain
TIL averdict for more than $4,000.
A new trial was granted on the ground
that these damages were excessive; but
the case as il stands is a judicial deClara-
ton to the effect that where a patient
expressly consents to a specified surgical
operation, or an operation upon a speci-
ned organ, the surgeon cannot perform
. different operation, or operate upon a
different organ, without rendering him
self legally liable to respond in money
damages to the patient.
While medical men generally are will
ing enough TO concede the justice and
propriety Of the rule Of law which denies
TO a surgeon the right 20 operate upon
any patient without the permission of that
patient, or Of some one standing in a
relation Of authority 20 the patient. IL is
very commonly insisted by medical writ
ers on the subject that the law ought TO
allow the surgeon TO exercised reasonable
discretion, so that il he finds a condition
demanding operative interference differ
ent from that contemplated by the pa
tient, and possibly the removal OF an
organ not suspected 10 be diseased prior
70 the operation, he should have the
legal right TO operate as he thinks for
the best interests Of the patient under the
circumstances.
Up to the present time, however, the
general tendency OF judicial decision in
America is opposed TO the exercise Of |
such a right. In the excellent little
treatise on the Law in its Relations 70
,Physicians, written by Mr ARTHUR n. |
TAYLOR Of the New York bar about five |
years ago, it is stated as a general prop
Iosition Of law that surgeon must have |
consent before operating upon patient;
and the authors discussion Of the ques- |
ZION results in the conclusion that whether |
There has been taCit consent TO a given |
operation or not-that is TO say whether |
consent may be implied from all the cir |
oumstances under which the operation |
was undertaken-is in most cases 70 be |
decided as a question Of fact by the Jury |
rather than TO be determined as a ques-
ton Of law by the court.
Tho most recent case involving this
question which has come before the
courts Of this State was decided by the
appellate Division Of the Supreme Court
b, Brooklyn at the February term in
1908. The plaintiff was the mother Of a
Joy who had died under chloroform while
submitting TO an operation in a oharita-
bic hospital in this city The mother
commended that the boy was sent to the
hospital merely to be examined and not
for surgical treatment, and that the
operation which was subsequently under
taken, and which resulted in his death,
was performed without her consent or
the consent Of the maid whom she sent to
the hospital with the lad. Il did not
appear, however, that the maid informed
the surgeons at the hospital Of any limi-
tation upon her authority. She merely
subnitted tho boy for their examination
and. as they supposed, for treatment;
Whereupon, having ascertained that the
3