We have all heard this a million times but it should be said again: Your body is your temple. You have the final say what happens to it in almost every single situation; whether your choice will help, harm, or do nothing for you. As a Kingston medical malpractice attorney, I am constantly asked if a client can sue a health care provider for treatment that was not consented to, even if it helped health, treat, or did not harm the patient.
Even though this sounds petty—even critical or sounds inequitable—the answer is actually an astounding YES! In almost every single situation, you can ABSOLUTELY sue your health care provider for rendering services on you that were not consented to. The only time you cannot sue and, in fact, would be responsible for paying unconsented to services is under a theory of implied contract, also called a quasi-contract.
The famous case—taught to all first year law students in contracts—is Cotnam v. Wisdom. In this case, an individual was thrown from a vehicle and lay unconscious. Doctors attempted to resuscitate him and performed multiple surgeries, but he did not survive. They sought reimbursement from the deceased’s family, but they refused. The court held that the surgeons were entitled to reimbursement, even though it was unconsented to, because we want to foster a public policy of having surgeons and medical staff to perform operations on unconscious or seriously injured individuals who may not be able to consent to assistance.
On the flip side, the famous case of a successful surgery, which was not consented to the exact body part, was Mohr v. Williams. This is another case always read by first year law students, but this time it is read in torts—not contracts. In Mohr, the patient was having problems with her ears and, while both were bad, the surgeon thought the right ear was much worse. The patient consented to surgery on her right ear and went under anesthesia. The surgeon was about to perform the surgery, but realized the right ear looked better than he thought and the left ear much worse than he thought. So he operated on the patient’s LEFT ear. Even though the surgery was a complete success, the patient woke up and was not pleased that the surgeon operated on the opposed ear and she sued. The court found for the plaintiff, and ruled that the surgeon, even though he did an excellent job, committed a civil battery because he performed an intentional direct physical contact with the plaintiff that was without consent from the patient. Thus, the plaintiff was actually able to recover against the surgeon for a battery!
The public policy here is to prevent surgeons from operating at will for anything they see fit. Still think it is wrong? Well take a more recent case for example, where a patient sought a breast augmentation operation and the surgeon, against the patient’s will, used silicone gel prosthesis to build up the patient’s breast as opposed to reshaping—which is what she consented to. This is actually horrifying—you wanted a reshaping surgery and you end up with a foreign object implanted into you? That is absolutely crazy! This is why the public policy is so strong.
Therefore, you can indeed sue a physician or surgeon for operating without consent, even if it helps you! In addition, you can sue the hospital and staff too!
But what do you think? I would love to hear from you! Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at [email protected] . You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.