Here, we are going to examine how “consent” can be used as a defense against a plaintiff’s claim. For example, one could say, “They have no claim on me because they consented to the action!”
O’Brien v. Cunard S.S. Co.
Supreme Judicial Court of Massachusetts, 1891. 154 Mass. 272, 28 N.E. 266.
O’Brien is the plaintiff and Cunard is the defendant. Defendant won in trial court and the plaintiff filed exceptions.
Question
Was there consent?
Rule
The overt acts of the plaintiff can determine whether or not there was consent.
Holding
There was consent
Facts
Defendant was in the business of transportation by sea. The plaintiff is one of the passengers. To obtain access to the port, passengers had to be vaccinated from small pox. Here, the passenger was vaccinated, sustained physical injuries and sued for damages.
The court says that if she had consented to the vaccination, she could not collect damages. Therefore, we are to examine if there was consent.
Analysis
There was consent. Here, the courts look at the overt actions of the plaintiff. She knew that vaccination was necessary to obtain access to the shore. She knew that several others were going to be vaccinated. When it was her turn to be vaccinated, she told the person that she was already vaccinated but when said that she should be vaccinated again, did not object. She held up her arm, nobody forced her arm, etc. All these facts lead the court to determine that her actions had implied consent.
Takeaway
Your actions can imply consent, even if you do not say anything.
Additional Notes
Consent is an objective standard. Meaning, we look into all the acts of the plaintiff to see if a reasonable jury can deduce that they consented.
Hackbart v. Cincinnati Bengals, Inc.
United States Court of Appeals, Tenth Circuit, 1979. 601 F.2d 516, cert. denied, 444 U.S. 931, 100 S. cCt. 275, 62 L. Ed. 2d 188 (1979).
Hackbart is the plaintiff and Cincinnati Bengals, Inc. are the defendants. The case was dismissed at the trial court and Hackbart appealed.
Question
Can a professional sport player collect for an injury when there was an intentional striking blow during the game?
Rule
The following boundaries of football are intended to prevent an individual from intentionally inflicting injury on another. Custom of football does not approve of intentional striking of others. Additionally, the punching or hitting of the arms is prohibited.
Holding
There was no consent to harmful contact inconsistent with football rules. Trial court overruled.
Facts
During a NFL game defendant was losing. One of the players acted angrily out of frustration and struck the plaintiff in violation of the rules of the sport. No penalty call was made and neither player complained to the referee after the incident.
The trial court said that football is a violent sport by nature and that it is impossible to draw valid lines of when a person has consented to a particular contact.
Analysis
Although football is a violent sport, there are several rules to the game that the players must follow. During the game, there are some ways to enforce those rule violations (through penalties, expulsions, and fines). However, sometimes those calls are overlooked during a game. Here, the defendant acted out of anger, knew that the actions were intentional and against the rules of the game. Therefore, considering how the nature of the rules is to prevent such conduct, the plaintiff should feel assured that the rules will be followed. So, the trial court errored in saying that there was no opportunity to collect for an unlawful strike, even in an already violent game.
Takeaway
One could argue that because the plaintiff had consented to playing the game, they were subject to the violent nature of the game. This is true to an extent, but they are not subject to the intentional actions of another player who violates the customs and rules of the game. Therefore, one can find a claim even if they have consented to a “dangerous activity”.
Additional Notes
Where do we draw the line? How do we determine that the player had consented to the sport? In other words, what did the party consent to or what did he not consent to?
We will answer those questions next lecture. Done with intentional torts by Tuesday.
We look at what is customarily accepted by the rules of the game. These customs can be described through witness testimony of those who participate in those customs. However, this is only for intentional sports.
Mohr v. Williams
Supreme Court of Minnesota, 1905. 95 Minn. 261, 104. N.W. 12.
The names of the parties are not mentioned, however, the plaintiff received a verdict in the trial court. Then judge thought the judgement was too much so he ordered a new trial. The plaintiff appealed, wanting the verdict of the jury to stand. Additionally, the defendant appealed, believing there was enough evidence for a directed verdict.
Question
Was there consent?
Rule
There can be implied consent if the operation occurred if the patient was unconscious and the procedure was an emergency to preserve the life of the patient.
Additionally, there can be consent if the patient provides it.
Holding
There was no consent, the actions were unlawful, but the recovery needs to be determined on the “good faith” and the nature of the injury occurred. Order affirmed.
Facts
The plaintiff came to the doctor for an ear problem in the right ear. Upon inspection, the defendant believed there was a problem and the defendant gave consent for an operation. Once the operation was underway, the defendant determined that the operation was not necessary for the right ear, but was for the left. He conducted the operation, which was successful. However, the defendant had failed to wake the defendant to obtain consent for the operational changes.
Analysis
The defense makes three arguments
- Consent was implied
- Consent was given
- There was no battery involved here.
The court address each argument independently.
For the first argument, the court says that consent is implied if the individual is unconscious but the action is necessary to save the patient. Without such action the patient would suffer great harm or possibly death. Since that was not the case here, there was non implied consent.
Second, the defense says that because the patient’s family doctor was in the room and he did not object to the operation, that he had consented on behalf of the plaintiff. However, the court disagrees because the family doctor was only present to calm the fears of the defendant and he did not have the authority to give consent.
Finally, the court says that this is a battery because he touched without consent, which was unlawful. Therefore the new trial can occur taking into account the good faith and the extent of the injury inflicted upon the plaintiff.
Takeaway
- Consent is only implied if the individual is unconscious and lack of action will result in great harm.
- Consent can be given by someone with the legal authority to do so, but there are few situations where that is the case.
Additional Notes
The first and main argument of the defendant is that consent was applied because consent had been previously given for a similar operation, it would have been dangerous to bring her out of unconsciousness before putting her back under. The court disagrees because this wasn’t an emergency and the action of the doctor came from an independent investigation. Therefore, he exceeded the scope of consent.
There are several times when the court is able to find consent is implied, see below:
- The patient is unable to give consent (unconscious, intoxicated, mentally ill, incompetent)
- Risk of serious bodily harm if treatment is delayed
- Reasonable person would consent to treatment under the circumstances
- And the physical has no reason to believe this patient would refuse treatment under the circumstances.
A hospital is still be held liable for actions taken to benefit patients, even if no consent was given. The only circumstances when this may not be the case is when a minor has a life threatening situation and the parents refuse consent. So, if a child is dying, the consent can be implied. If the treatment greatly improves the life of the child (but is not life threatening) consent is not implied.
De May v. Roberts
Supreme Court of Michigan, 1881. 46 Mich. 160, 9 N.W. 146.
Roberts is the plaintiff and De May is the defendant. Plaintiff won in the trial and appellate court and the defendants appealed.
Question
Can consent be valid if it is obtained through fraud?
Rule
Consent obtained through fraud does not actually constitute consent.
Holding
The consent was obtained through fraud. Therefore, the plaintiff can recover.
Facts
Here, the plaintiff is a mother going through childbirth. The doctor (defendant) was called to her aid. Due to the workload of the defendant, he brought an associate (who was not a physician) to help carry his things. The plaintiff’s husband let them in and at the defendant’s request, the associate performed some actions on the plaintiff (not improper). The plaintiff consented because she believed the associate to be a physician. Once she discovered that he was not, she experienced distress.
Analysis
Consent cannot be given through fraud. Here, the defendant had not properly disclosed the identity of the associate. Therefore, the plaintiff assumed that the individual was a physician present to help. Because he consent was made with fraudulent information, her previous consent can be seen as invalid.
Takeaway
Fraudulent consent occurs when an individual consents due to incomplete information. The defendant needs to disclose information regarding the nature of the act to take place. This is especially true for informed consent. If a physician does not disclose information relating to the risks of the procedure and a patient suffers harm, they may have action for a suit.
Additional Notes
The tort committed here is battery because there was an intentional touch and the touch was offensive (because it was fraudulent).
The point of showing these old cases is to prove that we continue to protect the same interests today as we protected back then. Here, we want to protect the plaintiff against trespass to bodily autonomy.
Here, there needs to be some form of disclosure. The burden is on the defendant to provide adequate disclosure.
However, fraudulent consent can be seen as fine when it is about a collateral thing rather than the essential character. For example, if someone consents to a dunking booth (in water) for money in one thing and the money is used for something else, the consent if fraudulent but it is about collateral. However, if he was dunked in a pit of snakes instead, then that is about the essential character of the contact.
Disclaimer
The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.
