Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 2. Intentional Harms
Signature of Doctor Performing Procedure
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Signature of Person Obtaining Consent
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Printed Name
Do boilerplate consent forms of modern medical practice undo the decision in Mohr? Or
do they vindicate it? What if the consent form said only the following: “I give permission to my
doctor to do whatever the doctor deems advisable for my health and wellbeing during my
procedure.” Would this undo the decision in Mohr?
For a troubling example of the type of conduct that such a form might make consensual,
legally speaking, consider the once common practice (now increasingly under scrutiny) at
teaching hospitals of medical trainees performing pelvic exams on unconscious, anesthetized
women patients, often solely for the purpose of educating the trainees. Such hospitals have also
sometimes allowed medical trainees to practice rectal exams on patients undergoing prostate
surgery. Defenders of these practices have advanced utilitarian arguments: such exams allow
future doctors to gain and hone crucial skills, to the benefit of society. Phoebe Friesen,
Educational Pelvic Exams on Anesthetized Women: Why Consent Matters, 32 BIOETHICS 298
(2018). Consider also the increasingly acknowledged phenomenon of “obstetric violence,”
including unwanted surgical incisions, unnecessary resort to forceps and vacuum extractors, and
physical restraint during the processes of labor and delivery. Elizabeth Kukura, Obstetric
Violence, 106 GEO. L.J. 721 (2018). How should tort law address situations of this nature?
5. Limitations on consent. Not all manifestations of consent will prevent defendants from
being held liable for the injurious consequences of their action. One set of situations where the
effect of consent is limited is when the person who purportedly consented could not legally give
that consent. The Restatement explains it this way: “To be effective, consent must be (a) by one
who has the capacity to consent or by a person empowered to consent for him, and (b) to the
particular conduct, or to substantially the same conduct. ”RESTATEMENT (SECOND) OF TORTS §
892A (1979).
The Restatement also notes the existence of “conditional” or “restricted” consent, which
“is effective only within the limits of the condition or restriction. And “[u]pon termination of
consent its effectiveness is terminated,” too, “except as it may have become irrevocable by
contract or otherwise, or except as its terms may include, expressly or by implication, a privilege
to continue to act.” RESTATEMENT (SECOND) OF TORTS § 892A (1979).
A final set of situations where the law will not honor what the defendant claims to be
consent is where the facts suggest a lack of voluntariness. Thus, consent given under duress will
not defeat a plaintiff’s claim to recovery for injury from an ostensibly consented-to action. See
RESTATEMENT (SECOND) OF TORTS § 892B (1979). Courts take a similar approach to consent
secured by false pretenses. The Restatement puts it this way: “If the person consenting to the
conduct of another is induced to consent by a substantial mistake concerning the nature of the
invasion of his interests or the extent of the harm to be expected from it and the mistake is known
to the other or is induced by the other's misrepresentation, the consent is not effective for the
unexpected invasion or harm.” RESTATEMENT (SECOND) OF TORTS § 892B (1979).
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