Consent Flashcards
Consent In-Fact Prima Facie Elements
When circumstances present themselves, consent in-fact must be directly communicated by manifestation of:
- Words, silence or inaction, or even w/o manifestation
- Even w/o manifs., by any competent evidence to exist in fact
Implied Consent Prima Facie Elements
Words or conduct are reasonably understood by other as intent to consent
Emergency Action w/o Consent Prima Facie Elements
Not liable for injury from non-consensual extension if:
(a) Emergency causes reasonable necessity to act to prevent harm to patient before there’s opportunity to obtain consent from anyone, AND
(b) There’s no reason to believe patient would’ve declined
Implied Consent Within Bounds of Game
In organized games (backyard, amateur or pro), there is implied consent to all activity “within the understood bounds of the game.”
Consent Procured by Fraud or Duress Prima Facie Elements
Consent is invalid if;
(a) Consent induced by substantial mistake regarding nature OR
(b) Expected extent of harm of invasion AND
(c) It is known by the acting person, OR
(d) Is induced by other’s misrepresentation, OR
(e) Is given under duress
Consent to Lifesaving Medical Treatment Prima Facie Elements
- If doctor knows or has reason to know from past experiences w/patient that consent wouldn’t be given he’s not privileged to act.
- Courts do have their own discretion to circumvent patients wishes by authorizing lifesaving medical treatment.
Barton (’33): Consent directly by words even though the act was actually a criminal offense
Judge is uncomfortable with allowing young women to sue due to statutory rape b/c; “they may use their seductive properties dishonestly.”
O’Brien (1891): When bodily manifestations, combined with current situation is implied consent
Due to O’Brien’s voluntary bodily actions (lining up with everyone for vaccinations and stuck her arm out to doc), her manifestations implied consent for vaccine
Bang (1958): Extension of original operation was not an emergency
Doctor extended the original operation without Bang’s consent when it was not an emergency and cut his seminal cords, so he was held liable.
Kennedy (’56): Emergency forces extension w/o ability to gain consent
Court states that it is permissible to do so if (a)it is a necessary, (b)immediate, (c)emergency and is (d)sound medical move and (e)doctor has no reason to think patient would object.
Implied Consent Within Bounds of Game: Hackbart (’79)
When player is injured b/c of action which is outside bounds of game, that player can recover damages
Consent Procured by Fraud or Duress Prima Facie Elements
Consent is invalid if;
(a) Consent induced by substantial mistake regarding nature OR
(b) Expected extent of harm of invasion AND
(c) It is known by the acting person, OR
(d) Is induced by other’s misrepresentation, OR
(e) Is given under duress
Consent to Lifesaving Medical Treatment Prima Facie Elements
- If doctor knows or has reason to know from past experiences w/patient that consent wouldn’t be given he’s not privileged to act.
- Courts do have their own discretion to circumvent patients wishes by authorizing lifesaving medical treatment.
State Farm (’93): Pulling Intent, Consent and Liability all Together
Even though he knew (foreseeable) there was appreciable risk of spreading herpes and may have acted reckless, he didn’t act WITH SUBSTANTIAL CERTAINTY so is not liable for injury.
