Discussion Topic Health Law: Schloendorff v. The Society of the New York Hospital Custom Essay

Discussion Questions I – Informed Consent (See sections I., II., and III., below.)
I. Schloendorff v. The Society of the New York Hospital, 211 N.Y. 125, 105 N.E. 92 (N.Y. 1914).
This significant opinion on informed consent was issued in 1914 by the highest court in the State of New York, and authored by Benjamin Cardozo, later a U. S. Supreme Court justice, and one of the most important jurists in American history. Schloendorff held that a charity hospital was not responsible for the negligence of its physicians and nurses in the treatment of patients. Schloendorff was abrogated in 1957 by Bing v. Thunig, 2 N.Y.2d 656, 143 N.E.2d 3 (N.Y. 1957), (and subsequently superseded by state statute), and both cases are worth reading.
Times have changed since Scholendorff was issued, and not only in the legal doctrine established. As you see, the words of the opinion are not politically correct today in describing occupations by gender identification, or the description of the capabilities of a hospital nurse. I said “ouch” when reading it.
The case facts are brief: Patient presented with a “stomach disorder,” after some weeks as an inpatient, the house physician discovered a fibroid tumor, and the visiting surgeon advised an operation. Patient claims she consented only to an examination under anesthesia, not an operation. The house physician, visiting surgeon, and many attending nurses contradicted patient’s claim. The surgeon removed patient’s tumor while patient was under anesthesia. Following the operation, patient developed gangrene in the left arm, some of patient’s fingers had to be amputated, and patient suffered intensely.
The holding is that physicians are not employees or agents of the charity hospital, they are essentially independent contractors. Further, the hospital’s nurses are not acting independently in treating the patients, they are carrying out the doctors’ orders. Therefore, the charity hospital is not vicariously liable for the negligence of the physicians working there, or the nurses there who were not in control of the physicians or the treatment, but simply carrying out the physicians’ orders. The doctrine of respondeat superior which makes an employer liable for the actions of an employee when the actions take place within the scope of employment did not apply to charity hospitals, this case held. Judge Cardozo writes almost patriotically in praise of charity hospitals and the services they provide.
Now, the special status given then to charity hospitals of being exempt from the negligence of its physicians and nurses in the treatments of patients is no longer. Then, the exemption was based upon two grounds. First, an implied waiver by patients by their acceptance of care from a charity hospital, even if some payment is made (which is considered a contribution). Second, the charity hospital did not employ or control its physicians, who were akin to independent contractors.
A memorable quote from the opinion: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation with his patient’s consent, commits an assault for which he is liable in damages. This is true except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained.”
In Bing, the court refuted the two reasons given in Schloendorff for the immunity awarded to charity hospitals. The court in Bing stated:
Two reasons were assigned for that conclusion. The first was that one who seeks and accepts charity must be deemed to have waived any right to damages for injuries suffered through the negligence of his benefactor’s servants and yet the rule was not limited to charity patients but was expanded to cover both paying patients and a private or profit-making hospital. The second reason which the court advanced was that the principle of respondeat superior was not to be applied to doctors and nurses. It was the court’s thought that, even though employed by the hospital, they were to be regarded as independent contractors rather than employees because of the skill they exercised and the lack of control exerted over their work and yet, we pause again to interpolate, the special skill of other employees (such as airplane pilots, locomotive engineers, chemists, to mention but a few) has never been the basis for denying the application of respondeat superior and, even more to the point, that very principle has been invoked to render a public hospital accountable for the negligence of its doctors, nurses and other skilled personnel.
The Schloendorff rule has pursued an inconstant course, riddled with numerous exceptions and subjected to various qualifications and refinements. While it would serve no useful purpose to trace in detail the doctrinal changes and modifications or the shifting theories advanced to support them, we briefly note two or three of the more striking instances. We have already remarked the qualification which excepts public hospitals, those owned by the state or city, from the operation of the Schloendorff rule and from the application of the medical-administrative distinction.
The cases to which we have adverted do not merely illustrate fluctuation of doctrine and the vicissitudes of judgment. They rather demonstrate the inherent incongruity of the immunity rule itself. A distinction unique in the law should rest on stronger foundations than those advanced. Indeed, the first ground stated in Schloendorff, namely, that there is a waiver by the patient of his right to recover for negligent injury, has long been abandoned as ‘logically weak’ and ‘pretty much a fiction.’ The second ground that professional personnel, such as doctors, nurses and internes, should be deemed independent contractors, though salaried employees is inconsistent with what they have been held to be in every other context and, to a large extent, even in this one. For example, the nurse, regarded as an independent contractor when she injures a patient by an act characterized as medical, is considered an employee of the hospital, entitled to compensation, if she should happen to injure herself by that very same act. Further, in holding the city responsible for injuries sustained through the carelessness of members of the staff of a city hospital, not only did we recognize that they were employees, to whom the doctrine of respondeat superior applies, but we noted the anomaly of treating as independent contractors ‘persons, who by all other tests are clearly employees’.

Nor may the exemption be justified by the fear, the major impetus originally behind the doctrine, that the imposition of liability will do irreparable harm to the charitable hospital. At the time the rule originated, in the middle of the nineteenth century, not only was there the possibility that a substantial award in a single negligence action might destroy the hospital, but concern was felt that a ruling permitting recovery against the funds of charitable institutions might discourage generosity and ‘constrain * * * (them), as a measure ofself-protection, to limit their activities.’ Whatever problems today beset the charitable hospital and they are not to be minimized, the dangers just noted have become less acute. Quite apart from the availability of insurance to protect against possible claims and lawsuits, we are not informed that undue hardships or calamities have overtaken them in those jurisdictions where immunity is withheld and liability imposed. In any event, today’s hospital is quite different from its predecessor of long ago; it receives wide community support, employs a large number of people and necessarily operates its plant in businesslike fashion. (Citations omitted)
The court concluded:
Insistence upon respondeat superior and damages for negligent injury serves a two-fold purpose, for it both assures payment of an obligation to the person injured and gives warning that justice and the law demands the exercise of care.
* * *
Hospitals should, in short, shoulder the responsibilities borne by everyone else. There is no reason to continue their exemption from the universal rule of respondeat superior. The test should be, for these institutions, whether charitable or profit-making, as it is for every other employer, was the person who committed the negligent injury-producing act one of its employees and, if he was, was he acting within the scope of his employment.
Please comment on the evolution of the doctrine of informed consent presented in these two cases? Was the change in Bing inevitable? Why did it take more than four decades? While the function of charitable hospitals is more than laudable, it’s critical to our functioning society, are there not other non-profit entities providing critical services to our society who could also state a case for the benefit of immunity from liability for negligence?
The Bing opinion provides two reasons for insistence upon respondeat superior and damages for negligent injury: to pay damages to the person injured, and to prevent future injuries by having the legal system encourage the exercise of care. Incentivizing non-negligent behavior so to speak. Do you agree? Are there other reasons?

II. Moore v. Regents of University of California, 51 Cal.3d 120, 793 P.2d 479, 271 Cal.Rptr. 146 (Cal.,1990)
Keep in mind the procedural posture of the case. As the opinion states, review was granted “to determine whether plaintiff has stated a cause of action against his physician and other defendants for using his cells in potentially lucrative medical research without his permission. Plaintiff alleges that his physician failed to disclose preexisting research and economic interests in the cells before obtaining consent to the medical procedures by which they were extracted.” (e.s.). In making that determination, the court was obligated to “assume that the complaint’s properly pleaded material allegations are true and give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context.” The court made clear that, “We do not, however, assume the truth of contentions, deductions, or conclusions of fact or law.”
The court held that Moore’s complaint stated a cause of action for breach of the physician’s disclosure obligations, but not for conversion.
Specifically, the court held:
“Accordingly, we hold that a physician who is seeking a patient’s consent for a medical procedure must, in order to satisfy his fiduciary duty and to obtain the patient’s informed consent, disclose personal interests unrelated to the patient’s health, whether research or economic, that may affect his medical judgment. (e.s.). After extensive analysis, the court held that the complaint did not state a cause of action for conversion.
Please offer your reasoning for agreeing or disagreeing with the court’s holdings.-

III. Chapter 3. Informed Consent and Truth Telling
Please comment on any area of particular interest to you discussed in the Informed Consent chapter. You may identify any problems areas in the subject area of which you are familiar in practical application or in which you have a concern — from either perspective, the patient or the provider.
The author lists the typical elements of disclosure for informed consent as follows:
1. Diagnosis,
2. Nature and purpose of the proposed intervention,
3. Risks, consequences, or perils of the intervention,
4. Probability of success,
5. Alternatives,
6. Result anticipated,
7. Limitations on the ability of the professional or the facility,
8. Advice and recommendations of the health care professional,
9. Financial costs of the various treatment options.
Please offer any other topics you feel should be included in disclosure?
Discussion Post II
Debby is roller blading on the loose gravel shoulder of a two lane road. The shoulder of the road slopes away from the road surface and Debby is roller blading on the right hand shoulder in the same direction as traffic. The uneven and sloping shoulder of the road caused Debby to lose her balance and she fell headfirst into the right hand lane of traffic and was injured.
Assume for purposes for this question that Debby did possess a duty to exercise reasonable care while roller blading (not a difficult assumption!). Did Debby breach her duty to exercise reasonable care when roller blading. If she did, explain why and if she did not, explain why not. Please use the standard of care stated in the previous material to determine the answer to this question.
Try to find an argument for her! She might be your client! And Experience really counts. Would you go look at the shoulder/road? And, why would I ask such a questions?