De May v. Roberts

Supreme Court of MI - 1881

Facts:

• P called on doctor D when she went into labor. D was tired, so he had an non-medical assistant help him with is bags and equipment.
• P thought the assistant was a medical assistant, so she allowed him to be there during the delivery (held his hand and such).
• P sued D for battery when she realized that the assistant was not a doctor.

Procedural History:

• Lower court found for P.
• MI Supreme Court affirmed, found for P.

Issues:

• Must express consent be voluntary and knowing?

Holding/Rule:

• Express consent must be voluntary and knowing and not obtained through trickery, fraud, or even a mistake as to a material fact.

Reasoning:

• P was not told that the stranger was not a physician. P deserved privacy, and the assistant had no right to intrude.
• Even though P gave her consent, that does not preclude her from bringing an action since she was mistaken.
• D is liable for failing to disclose the character of the assistant.

Dissent:

• None.

Notes:

• When obtaining consent, it is important to reveal material facts which are critical to giving of the consent.
• If P knew that the assistant was not medical, she would not have consented.