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In 1914, in an opinion in Schloendorff v. Society of New York Hospital, Jude Cardozo wrote that "every human being of adult years and sound mind has the right to determine what shall be done with his own body and a surgeon who performs an operation without his patient's consent commits an assault for which he is liable in damages." This was not the first case to require consent for medical treatment; but, because of the clarity of its statement, it is the most frequently cited reference for the duty to obtain a patient's consent before treatment.

It is important to note that the consent that Justice Cardozo demanded was not the "informed consent" that engenders so much confusion today, but rather the "bare bones" requirement that patient's be told what was going to be done to them and that they consent to it. The difference between "consent" and "informed consent" is often lost in arguments over how much the patient needs to be told. Legally, the two concepts are distinct and have entirely different standards of care associated with them.

The requirement that the patient consent to medical treatment is quite old. The proper tort remedy for a complete failure of consent is called battery, and, despite the recent interest in informed consent, lawsuits for battery are among the earliest "malpractice" lawsuits. Battery is the proper remedy for all intentional unpermitted touchings. The basic requirement is that the touching be intentional. If it is due to negligence, it may support a different action, but it will not be battery. The defendant must physically touch the plaintiff. Locking the plaintiff in a room would be false imprisonment; but even if the plaintiff was injured trying to escape, there would be no battery. The final requirement is that the contact be unpermitted. The plaintiff may expressly consent to the touching (signing a surgical consent) or may implicitly consent (participating in sport).

Since battery is an intentional tort, it is a harsh remedy. The slightest contact may support an action, and the court may award substantial damages in the absence of significant physical injury;

The defendant's liability for the harm resulting from his conduct extends, as in most other cases of intentional torts, to consequences which he did not intend, and could not reasonably have foreseen, upon the obvious basis that it is better for unexpected losses to fall upon the intentional wrongdoer than upon the innocent victim.

The harshness of battery as a remedy has caused the courts to limit its use to situations where there has been no consent obtained, as distinguished from situations involving disputed consent. The legal standards for consent are simple:

In our society we must perforce rely upon the overt words and acts of others, rather than upon their undisclosed minds. Consent may therefore be manifested by words, or by the kind of actions which often speak louder than words. The defendant is entitled to rely upon what any reasonable man would understand from the plaintiff's conduct. If the plaintiff expressly says, "It's all right with me," he will of course not be permitted to deny that he did consent. By the same token, if he holds up his arm without objection to be vaccinated, he will not be heard to deny that he has consented after the defendant has relied upon his action.

It is this classic legal formulation of "implied consent" that generally protects health care providers from liability for battery.

Outside of the emergency situation, most health care provider-patient relationships arise voluntarily, with the patient seeking out the health care provider. In these cases, the patient voluntarily submits to care, and consent is implied by this submission. For example, a conscious patient who is prepared for surgery, is brought into the surgical suite while still conscious, and does not complain about the proposed surgery will be assumed to have given consent (though not informed consent) for the surgery. Conversely, a patient who is rendered unconscious before being prepared and taken to surgery could rightfully deny that consent was given for the operation.

From a health care provider's point of view, the critical steps in avoiding battery actions are (1) discussing the care with the patient, (2) getting signed consents, and (3) not performing unconsented therapy on unconscious patients. All the provider must demonstrate to avoid a battery action is that the patient knew "something" (as opposed to the detailed knowledge needed for informed consent) was about to be done and that the patient did not object. It is very difficult for a conscious, competent patient to argue battery. For such a patient, battery can become an issue if there is an intentional effort to mislead the patient about the nature of the therapy, or if a mistaken therapy is performed on the patient. In either of these cases, the patient has consented to a different therapy than the one performed therapy, unless the health care provider can prove that the patient was conscious and that the nature of the therapy was so obvious that the patient must have known what was happening.

The most common situations in which battery is still accepted by the courts concern patients who are legally unable to give effective consent, or patients who refuse consent. While both of these situations are more fully discussed in later sections of this chapter, it is important to emphasize here the legal problems that are engendered by treating a patient without consent.

Unless there is a questions of consent being "implied" because of emergency circumstances, a lawsuit for battery does not require the plaintiff to utilize an expert witness. The facts at issue do not require the exercise of medical judgment. The jury must only decide if a legally valid consent was obtained. This is a "bare bones" consent, and the jury need not inquire into the detailed information given to, or understood by, the patient. Because the injury need find little more than a failure to resist care to imply consent, the majority of battery cases concern persons who are legally unable to consent. These cases will always be battery unless, as discussed later, the jury finds that treatment was justified by emergency circumstances.

The quality control implications of this are clear: The health care provider must be alert to situations where the patient is no longer able legally to give consent. If the patient has not provided a legally effective mechanism to shift the right to consent to another person, the health care providers must get a court order to continue treatment. While patients in these situations seldom sue the health care providers, the potential liability is sufficiently great that an effective quality control program cannot rely on the low statistical likelihood of an incompetent patient suing for battery. The likelihood of a lawsuit for battery increases substantially if the incompetent patient has delegated for the right to consent to a third person who is ignored, or if there is another person who is responsible for the patient by action of law. In the case of a minor, this other person may be a court-appointed guardian or a parent. In either situation, going against the wishes of the person legally entitled to consent for the patient carries a substantial risk of a lawsuit for battery.

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