Battery: Consent to Illegal Acts, Consent Wrongly Procured, and Medical Consent Flashcards
Can someone consent to an illegal act? (Feldman)
Yes, but hat consent is limited based on external circumstances. (Minors can’t consent to having sex with adults)
What does the restatement say about consenting to illegal acts? (Feldman)
“A person’s actual consent is legally effective even if the conduct consented to is a crime. However, the person’s actual consent is not legally effective if the conduct is made criminal in order to protect a class of persons without regard to
their actual consent and if the person is a member of that class.”
Can consent be reneged? (Feldman)
Yes. Consent to an otherwise harmful or offensive contact can be vitiated if the consent is wrongly procured (Theranos).
When can consent not exist? (Feldman)
A person does not actually consent to the actor’s conduct if any of the following circumstances exists:
(1) The person gives consent because of a substantial mistake concerning either the nature of the invasion of the person’s interests, the extent of the expected harm, or the actor’s purpose in engaging in the conduct
(2) The actor knows of the mistake or causes the mistake by affirmative misrepresentation or fraud.
What is specific consent? (Feldman)
Plaintiff consented to an operation on her right ear. After anesthetizing the patient, the surgeon found a more serious condition affecting her left ear. The surgeon operated skillfully
and beneficially. Why is there liability?
Because a person has a right to choose.
What is the modern rule of general consent? (Feldman)
“[T]he consent—in the absence of proof to the contrary—will be construed as general in nature and the surgeon may extend the operation to remedy any abnormal or diseased condition in the area of the original incision whenever he, in the exercise of his sound professional judgment, determines that correct surgical procedure dictates and requires such an extension of the operation originally contemplated.”
Does general consent confer unlimited freedom on the physician? (Feldman)
No.
What are the three constraints of general consent for physicians? (Feldman)
Physical, normative, necessity
What is the physical constraint of general consent for physicians? (Feldman)
The physician’s freedom of action is physically bounded by the
“single incision” requirement. The operation can only be extended within the “area of the original incision.”
What is the normative constraint of general consent for physicians? (Feldman)
The discretion conferred by general consent is limited by the
duty to exercise “sound professional judgment.” The medical community’s collective judgment about what sorts of extensions are warranted thus limits the physician’s freedom of action.
What is the necessity constraint of general consent for physicians? (Feldman)
“This rule applies when the patient is at the time incapable of
giving consent, and no one with authority to consent for him is
immediately available.”
What is conditional consent? (Feldman)
Conditional consent enables patients to exercise detailed control over surgical procedures.
Why does conditional consent matter? (Feldman)
Conditional consent matters because autonomy in the form of control over one’s own body matters, as the final paragraph of the opinion observes. But this power to consent to specific procedures or precautions promotes patient health only if patients exercise their power of control wisely.
