De May v. Roberts

Supreme Court of Michigan, 1881.

46 Mich. 160, 9 N.W. 146.

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 plaintiffís 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-doctorís presence was not necessary, so there was no excuse for him being there.If she didnít know he wasnít a doctor, she canít give consent.


Conclusion: The court upheld the verdicts.


Notes and Questions


1.     This sure seems like a battery.It doesnít 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 itís 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 wasnít 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 youíre 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.


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