A 1914 case from the New York Court of Appeals established some of the foundation for what the healthcare community now thinks of as the informed consent process.
In Schloendorff v. Society of New York Hospital, 1914, the court addressed the lawsuit brought by Mary Schloendorff, also known as Mary Gamble. In January 1908, she had been admitted to New York Hospital for evaluation of a stomach disorder. The house physician diagnosed a fibroid tumor, explains Peter Kolbert, senior vice president for claims with Healthcare Risk Advisors in New York City.
She agreed to undergo ether anesthesia for examination of the tumor but did not agree to its removal. The surgeon determined that the tumor was malignant and removed it.
“She suffered some type of clotting anomaly, a vascular insult, and developed gangrene that necessitated the amputation of several fingers,” Kolbert says. “She brought a lawsuit claiming not that the surgery wasn’t indicated, but that she never would have consented to the procedure because of the inherent risks and she didn’t give permission.”
The court determined that she could sue the charitable institution and that performing the procedure without her permission constituted assault and battery against her, Kolbert says.
“That case led to the codification across many states of the laws of informed consent, saying that even if the procedure is indicated and done properly and a known risk develops, patients have a right to not subject themselves to those known risks,” Kolbert says. “Being subjected to risks that a reasonably prudent person wouldn’t subject themselves to becomes a compensable event.”
Justice Benjamin Cardozo explained that reasoning in the court’s opinion:
“Every human being of adult years and sound mind has a 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 is true except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained.” (The court’s opinion can be found online at: https://bit.ly/2lQmasY.)