De
May v. Roberts
Supreme Court of
46
Prosser,
p. 96-97
Facts: The plaintiff was giving
birth and a doctor came to help out. He
brought another man who was not a doctor with him. The plaintiff believed he was a doctor. He touched her, and she sued for battery. She won, and the defendants appealed.
Issue: Is the plaintiff’s consent
valid if she was misled about one of the defendants being a doctor?
Rule: The plaintiff had a legal
right to privacy. Her consent is not
valid if obtained by deceit.
Analysis: The court says the
non-doctor’s presence was not necessary, so there was no excuse for him being
there. If she didn’t know he wasn’t a
doctor, she can’t give consent.
Conclusion: The court upheld the verdicts.
Notes
and Questions
1. This sure
seems like a battery. It doesn’t seem
like anyone would consent to eating poison.
One would reasonably assume under the circumstances of the second case
that the person representing himself as a doctor is a doctor of medicine. Again, consent is obtained through deceit and
it’s no good.
2. It would seem
that A only has an action if B knew he was infected. In the second case, consent is definitely
obtained fraudulently. In the case of
the cheating husband, I think it might make a difference if the wife directly
asked the husband if he was having an affair, or if he explicitly represented
that he wasn’t having sex with anyone else.
3. In the first
case, the difference seems to be the nature of state law when it comes to
trespass and the fact that it is highly related to use of land. In the second case, the state law seems to be
different. Otherwise, the cases seem
identical.
4. If you’re
intoxicated and the other party knows it, there should be no valid consent.
5. It would seem
that if a condition of consent is violated, the consent is gone. If the patient consented only to a particular
physician performing the operation, then there would be liability if a
different physician performed the operation.
If the patient gave blanket consent, then whether the designated surgeon
was present or not would be immaterial.
6. Going from battery
to negligence in informed consent cases potentially increases the damages that
the plaintiff can collect, as far as I understand.