LEGAL PRIVILEGE, ON THERAPEUTIC GROUNDS, TO WITHHOLD SPECIFIC DIAGNOSIS FROM PATIENT SICK WITH SERIOUS OR FATAL ILLNESS
Authors: H W SMITH
Journal: Annals of Internal Medicine (1946)

Article1 June 1946LEGAL PRIVILEGE, ON THERAPEUTIC GROUNDS, TO WITHHOLD SPECIFIC DIAGNOSIS FROM PATIENT SICK WITH SERIOUS OR FATAL ILLNESSHUBERT WINSTON SMITH, LL.B., M.D.HUBERT WINSTON SMITH, LL.B., M.D.Search for more papers by this authorAuthor, Article, and Disclosure Informationhttps://doi.org/10.7326/0003-4819-24-6-960 SectionsAboutPDF ToolsAdd to favoritesDownload CitationsTrack CitationsPermissions ShareFacebookTwitterLinkedInRedditEmail ExcerptWhen one says the first word on a controversial subject, he should not delude himself into thinking that he will have an opportunity to say the last. Sometimes, however, it is discreet to amplify what one said in the beginning, before others may bring the subject to a more mature and annihilating conclusion. In 1942, in the course of discussing select legal problems which arise in the practice of surgery,1the writer ventured the statement: "There is probably a privilege, on therapeutic grounds, to withhold the specific diagnosis where the disclosure of cancer or some other dread condition would seriously...Bibliography1. SMITH, H. W.: Antecedent grounds of liability in the practice of surgery, 14 Rocky Mt. L. Rev. 233, 1942. Google Scholar2. Id., p. 249. Google Scholar3. Id., p. 234; Mulloy v. Hop Sang (Sup. Ct. Alberta) 1 Western Weekly Reports (1935) 714. Google Scholar4. Pratt v. Davis, 224 Ill. 300, 79 N.E. 562 (1906); accord.: Criffin v. Bles, 202 App. Div. 443, 194 N. Y. S. 654 (1922). Google Scholar5. (Ontario Sup. Ct.) (1931) 4 D. L. R. 906. And, see Dictum and Schoendorff v. The Society of the New York Hospital, 211 N. Y. 125, 105 N.E. 92 (1914). Google Scholar6. 65 Mass. (11 Cush.) 397 (1853). Google Scholar7. Hurley v. Eddingfield, 156 Ind. 416, 59 N.E. 1058 (1901), 83 Am. S. R. 198, 53 L. R. A. 135. Google Scholar8. 166 Mass. 585, 44 N.E. 992 (1896). Google Scholar9. 165 Ore. 525, 108 P. (2d) 1010 (1941). Google Scholar10. Miller v. West, 165 Md. 245, 167 Ala. 696 (1933); Harnett v. Fisher, 135 L. T. 724 (1926). See, also, De Freville v. Dill (King's Bench Div., England) 105 L. J. 1056, 96 L. J. K. B. (N. S.) (1927). Google Scholar11. Boston, Little, Brown and Co., 1940. Google Scholar12. Stoffberg v. Elliott (Sup. Ct. South Africa, C. G. H., P. D., 1922) S. A. Law Reports (1923), C. P. D. 148. In that case, defendant was a visiting surgeon and he amputated the plaintiff's penis for advanced cancer, supposing that the hospital had procured pre-operative consent according to its usual routine. Through an oversight it had not done so and the patient sued the surgeon for assault and battery, seeking £10,000 in damages. According to the medical testimony, the plaintiff would have died a horrible death in less than two years had surgery been withheld. The trial court rightly held the operation was a battery, even though the surgeon acted bona fidely under a mistaken belief that consent had been given. The judge, however, instructed the jury that they were entitled to say whether plaintiff had suffered any damage at all. Under the charge given, the jury returned a verdict for the defendant. The point is so important that we consider it worthwhile to reproduce the charge which the trial judge delivered to the jury, this being as follows: "Lastly, if you think there was cancer and you think this operation was necessary to save his life, then you have still further to consider whether he suffered any damage at all. That is a matter which I will leave entirely to you. You have heard all the evidence as to the nature of cancer, and what it leads to, and you have heard the evidence of Dr. Hamman, for the plaintiff, who said that if a man had cancer of the penis he would be very much surprised if he were alive after two years time. You can take that as admitted, the evidence having been given for the plaintiff. Well, the operation was performed in March of this year, and, if he would have been dead in two years, and if his death would have been such a horrible thing as described, then has he suffered any damage by having his penis removed? That seems to be the most difficult question in the whole case. If you think he has suffered no damage at all then you are justified in giving judgment for the defendant; if you are satisfied he had cancer and this was the only thing to save his life, and you still think, in spite of that, that he suffered damage, well, then you must attempt to assess the damage which he has suffered, and you must give judgment for the plaintiff for that amount of damages." "That the operation was necessary is a circumstance usually allowed in mitigation of damages in an action for unconsented operation. See Restatement, Torts (1939) Sec. 920." Google Scholar This content is PDF only. To continue reading please click on the PDF icon. Author, Article, and Disclosure InformationAffiliations: Urbana, Illinois*Received for publication February 15, 1946.†Professor of Legal Medicine in the University of Illinois, affiliated with the College of Law and the College of Medicine. PreviousarticleNextarticle Advertisement FiguresReferencesRelatedDetails Metrics Cited byPsychogenic Factors in Surgery 1 June 1946Volume 24, Issue 6Page: 960-967KeywordsDisclosure ePublished: 1 December 2008 Issue Published: 1 June 1946 PDF downloadLoading ...