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Page 1 of 270 LEGAL and PROFESSIONAL ACTIONS LEGAL AND PROFESSIONAL ACTIONS INVOLVING MEDICAL CONSENT AND REFUSAL IN THE NINETEENTH CENTURY By Robert D. Miller, J.D., M.S. Hyg. Honorary Fellow Medical History and Bioethics Department School of Medicine and Public Health University of Wisconsin - Madison Copyright 2020 - Robert D. Miller No copyright is claimed for quotations. The owner retains the copyright, if any, in quotations. Medical consent has a long history before the iconic cases of the early twentieth century. Medical consent and refusal were issues in many legal and professional actions during the nineteenth century. Here are descriptions of the examples that have been located to date. It is surely not a complete list. These examples are primarily from the United States and the United Kingdom. A few examples are included from other countries. These examples were collected to demonstrate the role of medical consent in the nineteenth century and the robust consideration of medical consent issues during that period. These examples illustrate the messy way that concepts develop. There was no linear development of consent concepts. These examples illustrate lessons learned, lessons forgotten and lessons rediscovered. These examples are presented largely chronologically, but some examples that address similar issues are gathered together out of chronological order. Cases regarding consent to release of medical information are not included. Several other types of cases are generally not included - medical examination for evidence, impact of refusal of treatment on homicide prosecutions and civil liability cases, challenges to mandatory vaccination laws, and involuntary treatment for incapacity or mental illness or public health purposes. A few cases of some of these types are selectively included. PENNSYLVANIA HOSPITAL - REQUIRING PATIENT CONSENT TO AMPUTATIONS (Philadelphia 1801) At the beginning of the century at least one hospital had a practice of obtaining consent for some procedures and respecting patient choice of physician in some cases. The following statements appear in a booklet published about Pennsylvania Hospital that appears to have been part of a fund raising appeal. Page 1 of 270 Every patient may chuse [sic] his own physician, but he must be one of the house physicians. Amputation is not to be performed, unless the patient consent, nor then, unless three physicians agree to it, after a consultation on the case. 1 The statement about amputation consent was reprinted in several books and articles.2 Evidence has not been located that the amputation consent requirement was included in formal rules during the nineteenth century. A choice of physician provision was part of the first formal rules of the hospital in 1752. It was limited to private pay patients: X. That those who are taken into the Hospital at a private Expense may employ any Physicians or Surgeons they desire.3 An 1828 account of the hospital approved by the hospital did not mention an amputation consent requirement, but contained a patient choice of physician provision: At their own desire, patients may be attended, exclusively, by either of the Hospital physicians they may prefer, but in such cases it is expected that the affluent will pay the physician as though attended elsewhere.4 The consultation requirement was in the 1837 rules: 5. No important surgical operation shall be performed without a previous 5 consultation; and, in such cases, all the surgeons shall have due notice. 1 AN ACCOUNT OF THE RISE, PROGRESS & PRESENT STATE, OF THE PENNSYLVANIA HOSPITAL - DECEMBER 12, 1801 (Philadelphia: Robert Carr 1801). The idea that it was part of a fund raising appeal is derived from the fact that it includes instructions on how to donate or bequeath money to the hospital. 2 An account of the rise, progress, and present state of the Pennsylvania Hospital; the pride of Philadelphia, MEDICAL AND PHYSICAL JOURNAL (London), 9(49):250-251 (Mar. 1, 1803); A sketch of the Pennsylvania Hospital - Drawn up in 1801, THE LITERARY MAGAZINE, AND AMERICAN REGISTER, 4:23, 24 (Aug. 1805); James Mease, THE PICTURE OF PHILADELPHIA (Philadelphia: B. & T. Kite 1811), Charitable Institutions - 1. Pennsylvania Hospital, 224, at 232; William P. C. Barton, A TREATISE CONTAINING A PLAN FOR THE INTERNAL ORGANIZATION AND GOVERNMENT OF MARINE HOSPITALS IN THE UNITED STATES (Philadelphia: Edward Parker 1814), Section XXXII, An account of the Pennsylvania Hospital, and its internal police, at 127; Pennsylvania Hospital, DAILY NATIONAL INTELLIGENCER (DC), May 31, 1817 [From the KENTUCKY GAZETTE]; Pennsylvania Hospital – concluded, REGISTER OF PENNSYLVANIA (Philadelphia), 2(7);97-98 (Aug. 30, 1828). 3 Rules Agreed To By The Managers Of The Pennsylvania Hospital For The Admission And Discharge Of Patients (adopted Jan. 23, 1752), reprinted in PENNSYLVANIA GAZETTE (Philadelphia), Mar. 24, 1752 4 W.G. Malin, SOME ACCOUNT OF THE ORIGIN, OBJECTS, AND PRESENT STATE OF THE PENNSYLVANIA HOSPITAL (Philadelphia: T. Kite 1828), 10-11 5 THE CHARTER, LAWS AND RULES OF THE PENNSYLVANIA HOSPITAL (Philadelphia: Joseph & William Kite 1837), Of the physicians, surgeons, and obstetricians, 20 Page 2 of 270 The patient consent provision does not appear in the hospital rules that have been located. The practice of obtaining consent for operations is referred to in several articles. For example, an 1838 article by George W. Norris (a surgeon at Pennsylvania Hospital): The surgical division of the hospital is under the care of three practitioners, who attend in rotation each four months, and in all cases where an operation is deemed necessary, a consultation is previously held, and the full consent of the patient obtained.6 In 1869 PENNSYLVANIA HOSPITAL REPORTS stated: “We do not perform capital operations without consent.”7 An 1890 report of incident at Pennsylvania Hospital stated: Agnew says: "In general it may be said that amputation is proper whenever the injury of a part is such as to render it highly probable that without the operation the limb must be lost, or when the patient's life would be subject to greater risk by the adoption of any other treatment, such as resection or expectancy. That persons recover occasionally, from wounds of the most extensive and apparently hopeless character without operation is true, but such very exceptional cases are not to influence the judgment of the surgeon when deciding upon the propriety of an amputation in any given case. I remember an instance in the Pennsylvania Hospital, of a patient with a crushed ankle, who absolutely refused to have the part removed, although the indications for the operation were so clear as to admit of no doubt whatever, and yet after a long and tedious illness he finally recovered with a distorted ankle and useless foot. The result, however, was the loss of the lives of three other patients who encouraged by the obstinacy of this man declined operation, which had they been performed would in all probability have been successful."8 LOSS OF INSURANCE BENEFITS FOR REFUSAL OF PHYSICAL EXAMINATION (Ireland 1800) 6 George W. Norris, Statistical account of the cases of amputation performed at the Pennsylvania Hospital from January 1st, 1831, to January 1st, 1838, AMERICAN JOURNAL OF THE MEDICAL SCIENCES (Philadelphia), 22(44):356, at 357 (Aug. 1838) 7 PENNSYLVANIA HOSPITAL REPORTS, 2:275 (1869) 8 Christian Berry Stemen, RAILWAY SURGERY (St. Louis: J.H. Chambers & Co. 1890), 121 Page 3 of 270 While consent was generally required for physical examination, there were consequences to refusal. In 1800 the rules of a Dublin sickness society barred members from collecting benefits if they refused physical examination: 26…. nor shall any member be entitled to relief who shall refuse to have his disorder examined by any physician, surgeon, or apothecary appointed by this society;… 9 QUACK MEDICINES - RICHARDS V. BURNETT - LIABILITY FOR MISREPRESENTATIONS IN ADVERTISING (England 1802) In 1802, in England, misrepresentation concerning medicines in advertising could lead to liability. In the case of Richards v. Burnett, a clerk sued a vendor of quack medicines who had advertised to cure every disorder and had undertook to cure his disorder. The ointments provided nearly killed him. The jury in the sheriff’s court awarded the patient £400. The TIMES noted: The Under Sheriff expressed his surprise that causes of this nature were not more frequently the subjects of inquiry in Courts of Justice, considering how the health and lives of the public were tampered with by ignorant pretenders to medicine.10 The TIMES further commented on the case a few days later: The verdict against the Quack Doctor has thrown all the fraternity into consternation. No one of them can tell whose turn it may be next. It was certainly high time the attention of the Courts should be turned to the subject of empiricism.11 An American newspaper in Philadelphia reported the case early the following year.12 It is curious that additional cases of this type have not been located in the subsequent decade. However, quack medicine purveyors were involved in other 13 types legal proceedings. 9 THE FIRST NUMBER OF THE REPORTS OF THE SOCIETY IN DUBLIN FOR PROMOTING THE COMFORTS OF THE POOR (London 1800), Vol. I, 72 10 Quack doctors, TIMES (London), May 31, 1802, 3. The case was also reported in Quack doctors, MORNING CHRONICLE (London), May 31, 1802; Quack doctors, BURY AND NORWICH POST (Bury Saint Edmunds), June 2, 1802; CALEDONIAN MERCURY (Edinburgh), June 3, 1802; IPSWICH JOURNAL, June 5, 1802; Sheriff’s Court. Quack Doctors - Richards against Burnett, JACKSON’S OXFORD JOURNAL, June 5, 1802; ANNUAL REGISTER, 44:406-407 (1802). A report of the case was reprinted in the section on quack doctors in John Corry, A SATIRICAL VIEW OF LONDON: COMPREHENDING A SKETCH OF THE MANNERS OF THE AGE (1803), 131-133. 11 TIMES (London), June 1, 1802, 2 12 Sheriff’s Court, May 29. Richards against Burnet, GAZETTE OF THE UNITED STATES (Philadelphia), Jan.
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