The Consensual Defense

Question 1

Mohr v. Williams

Answer 1

i. Facts
1) P was operated on after giving permission to operate on her right ear, when she woke up her hearing was worse and she found out the doctor had operated on the other ear, which he found when she went under was worse. She claims she never consented to that ear to be operated on and is suing for battery
ii. Issue:
1) Did the doctor commit an act of battery when he operated on the ear, she didn’t consent to?
iii. Holding
1) The D is guilty of Technical assault and battery, because he physically touched the P without her consent to do so on that ear
iv. Notes TL
1) T believes this case to be an egregious error
2) Could she have given implied consent by giving consent to operate on the one ear?
a) Yes she could have
3) Could the family doctor that was there, be interpreted to be her agent?
a) Yes he could have
4) Was this an emergency
Yes it was, putting her under more than once is doubling her exposure to risk and could even be seen as NEG

Question 2

Kennedy v. Parrott

Answer 2

i. Facts
1) P authorized doctor to perform an appendectomy, while in the abdominal cavity, D noticed some ovarian cysts and punctured them, resulting in a lot of pain for the P.
ii. Issue
1) Does the D performance of an unauthorized procedure constitute trespass?
iii. Holding
The D did not commit a trespass by performing the extra surgery because such action was performed in the context of finally and definitely diagnosing the P’s condition. P’s consent to this action is general

Question 3

Hoofnel v. Segal

Answer 3

i. Facts
1) P consulted with the doctor to remove a lesion from her colon, she told the doctor she did not want her lady bits removed, but signed a form saying he could if needs be, while under the doctor determined they were possibly cancerous and thus removed them
ii. Issue:
1) Was the doctor authorized to complete the procedure? Or did he commit trespass?
iii. Holding
Doctor was authorized because of the consent form, therefore, no battery.

Question 4

O’Brien v Cunard Steamship

Answer 4

i. Facts
1) P emigrated to this country, and before being allowd into the country she was vaccinated for small pox allegedly against her will, however the P held up her arm as if to receive vaccination and was thus a form of expressed but unsaid consent
ii. Issue:
1) Did the P in raising her arm consent to the procedure?
iii. Holding
The Plaintiffs behavior was indicative of consent to vaccination and is therefore not actionable.

Question 5

Schloendorff v. Society of New York Hospital

Answer 5

i. Holding
Whenever an emergency endangers the life or health of a P, consent is implied from their circumstances, in other words, P would consent to medical treatment if they could ask

Question 6

Cooper v. Lankenau Hospital

Answer 6

i. Facts:
1) Mother goes to the hospital after falling at 27 weeks pregnant, the physicians found the heart rate of he fetus was suffering and that it could die, without consent, they operated.
ii. Holding
The doctors were not guilty of battery, because of the life threatening nature.

Question 7

Bonner v Moran

Answer 7

i. Issue:
1) How ought physicians treat minors and incompetents who are unable to give consent
ii. Holding
Consent of the parent or legal guardian is necessary.

Question 8

Brophy v New England Sinai Hospital

Answer 8

i. Holding
Court allowed wife and family of a man left in a permanent vegetative sate to cut off all nutrition and hydration over the objections of the treating physicians.

Question 9

Lausier v. Pescinski

Answer 9

i. 1975
ii. Holding
The court did not have the power to permit the removal of one of the disabled’s kidneys, which was needed to save his brothers life

Question 10

Curran v Bosze

Answer 10

i. 1990
ii. Holding
Court upheld right of mother of 3 year old twins to undergo medical testing to determine if Bone marrow match for their 12 YO brother who was dying of leukemia

Question 11

McPherson v. McPherson

Answer 11

i. Facts
1) D had extramarital affair and then slept with his wife giving her an STD. P Sued D for battery
ii. Issue:
1) Even though sex was consensual is the D liable for battery?
iii. Holding
1) The D is liable for battery, because he attainted consent through fraud nullifying the consent
iv. Notes
Fraud or non disclosure can negate consent

Question 12

Hudson v. Craft

Answer 12

i. Facts
1) D operated a carnival and boxing exhibition, never touched the P. the P 18 YO alleges the D had no license to operate the carnival, D recruited the P to box and he did so becoming pretty injured in the process.
ii. Issue:
1) Is the D liable for P’s injuries even though they were sustained by mutual combat with another?
iii. Holding
1) D is liable for the P’s injuries because he was an aider and abettor of a crime
You cannot consent to something illegal, if you do it nullifies the consent

Question 13

Hart v. Geysel

Answer 13

i. Facts
1) P husband killed by blow struck in an illegal price fight that he consented to participate in
ii. Holding
1) Both violated the criminal statute, therefore not necessary to reward the one that got the worst of the encounter at the expense of his more fortunate opponent
a) Volenti non fit injuria to a willing person, INJURY IS NOT DONE
b) Ex turpi non oritur action.
a) No action out of an improper or immoral cause
However the aiders and abettors of those illegal actions that result in injury are liable

Question 14

Barton v. Bee Line

Answer 14

i. Facts:
1) Underage P had consensual sex with an adult servant.
ii. Issue
1) Can an underage women sue an adult man for statutory rape if the sex is consensual?
iii. Holding
1) The D is not liable for statutory rape because the sex was consensual
iv. Notes
1) Intent of the legislature is to protect minors from having sex with adults, whether or not the minors consented.
The court gets this wrong, and the opinion held is a minority, if not a statutorily debunked view.

Question 15

Christensen v. Royal School District

Answer 15

i. Facts
1) 13 Year old brings suit against teacher who had sex with her and school district who employed him
ii. Holding
1) The girl was “too” immature to rationally or legally consent
iii. Notes
This is the majority view held today

Question 16

Hackbart v. Cincinnati Bengals

Answer 16

i. 1979
ii. Facts
1) P is struck by the P who acted out of anger and frustration after the whistle was blown, which resulted in injury
iii. Holding
1) Rules of the game prohibit such conduct and as such the court find the D liable for injury sustained after the play was called
iv. Notes
This conduct was not consented to, even in a contact sport.

Question 17

Nabozny v. Barnhill

Answer 17

i. 1975
ii. Facts
1) D kicked P in head while inside an area on the filed where contact with the P is not allowed
iii. Holding
Liable if conduct is deliberate or willful, or with reckless disregard for the safety of the other player so as to cause injury to that player

Question 18

Turcotte v. Fell

Answer 18

i. Facts
1) P a professional jockey, sued the D for NEG for injuries sustained as a result of the D violation of Track rules
ii. Holding:
1) The rule that was violated allowed a spectrum of conduct and penalties, depending on whether violation is careless or willful, and whether contact was the result of mutual fault
It was part of the competition and therefore, implied consent

Question 19

Marchetti v Kalish

Answer 19

i. Facts
1) P and D playing a backyard game of Kick the can, the P called out the D name and the D rushed the can, kicked it out from under the P and the P fell and broke their leg sustaing serious injury
ii. Holding,
Before a party may proceed with CoA involving injury fro recreational or wonton play, reckless or intentional conduct must exist.

Question 20

Gentry v. Craycraft

Answer 20

i. Holding
Recklessness standards is applied to spectators as long as they are old enough to appreciate the inherent risk in the activity