F. COMMON LAW MEDICAL CONSENT Case Facts Ruling Ratio Does the administration of a blood transfusion against the Card with instructions on blood patient’s will constitute transfusions is sufficient instruction Mallete is a battery? Jehovan’s C/L: unless There are situations in which Witness consent, Defendant (Shulman’s) failure to refuse equate consent admitted to medical argument (EXCEPTION TO THE RULE) ex. hospital touching by a Consent must be emergency, patient not capable of unconscious. Dr will count informed consent. consent finds card as battery Mallete v. Therefore refusal must 2 possible views why we in her purse (patient’s right Shulman be informed refusal! might accept this: refusing blood to 1990 A mere statement on a 1. IMPLIED CONSENT - patient transfusion, determination card isn’t sufficient would have consenting if the family member – > Dr’s desire CP doesn’t expose could’ve (still prioritizing right arrives claiming to do good). A whether the person to self det) the same. Dr card with has really thought 2. NECESSITY - (preferred administers instructions is about the possible risks view) blood sufficient. Therefore Dr should be Galloway: in emergency, transfusion, allowed to reject a Dr’s desire to do good > sued for medical refusal where it may patient’s right to self-det battery. not be based on an EXCEPTION to the EXCEPTION: If Dr appreciation of risks has prior notification on what to do in case of an emergency Case Facts Issue Ruling Ratio v. Dr. did not When is battery Battery is Battery when: Hughes provide vs. negligence appropriate 1. If patient doesn’t consent to being 1980 sufficient an appropriate when there’s a touched, information action in cases question re: the 2. If patient consents to one operation but CP about the risks of medical validity of the doctor performs substantially another, of an operation. consent ? consent consent to the first operation does not give Causes plaintiff consent to the actual operation to lose his 3. If consent is obtained through a fraud or pension, pltf misrepresentation sues in battery. Negligence when: 1. Dr obtains consent but it’s not on a proper explanation of the risks (issue re: duty of care) 2. Consent not vitiated by failure to disclose
F. COMMON LAW MEDICAL CONSENT Case Facts Ruling Ratio Mallete v. Shulman 1990 CP Mallete is a Jehovan’s Witness admitted to hospital unconscious. finds card in her purse refusing blood transfusion, family member arrives claiming the same. Dr administers blood transfusion, sued for medical battery. Does the administration of a blood transfusion against the patient’s will constitute battery? Card with instructions on blood transfusions is sufficient instruction C/L: unless consent, medical touching by a Dr will count as battery (patient’s right to > Dr’s desire to do good). A card with instructions is sufficient. Defendant (Shulman’s) argument Consent must be informed consent. Therefore refusal must be informed refusal! A mere statement on a card isn’t sufficient – doesn’t expose whether the person has really thought about the possible risks Therefore Dr should be allowed to reject a refusal where it may not be based on an appreciation of risks There are situations in which failure to refuse equate consent (EXCEPTION TO THE RULE) ex. emergency, patient not capable of consent 2 possible views why we might accept this: 1. IMPLIED CONSENT - patient would have consenting if the could’ve (still prioritizing right to self det) 2. NECESSITY - (preferred view) Galloway: in emergency, Dr’s desire to do good > patient’s right to self-det EXCEPTION to the EXCEPTION: If Dr has prior notification on what to do in case of an emergency Case Facts Issue Ruling Ratio v. Hughes 1980 CP Dr. did not provide sufficient information about the risks of an operation. Causes plaintiff to lose his pension, pltf sues in battery. When is battery vs. negligence an appropriate action in cases of medical consent ? Battery is appropriate when there’s a question re: the validity of consent Battery when: 1. If patient doesn’t consent to being touched, 2. If patient consents to one operation but the doctor performs substantially another, consent to the first operation does not give consent to the actual operation 3. If consent is obtained through a fraud or misrepresentation Negligence when: 1. Dr obtains consent but it’s not on a proper explanation of the risks (issue re: duty of care) 2. Consent not vitiated by failure to disclose determination