Schloendorff v Society of New York Hospital is regarded widely as a landmark in the history of informed consent because it is thought to have established individual self-determination as the legal basis of consent and respect for patient autonomy as the ethical basis of consent. For a century, it has been understood as a laparotomy done without consent when a pelvic mass was discovered unexpectedly in an anesthetized patient after an examination. We believe it was a case of surgeons failing to communicate properly with each other and their patient. To support this reinterpretation, we present evidence from the original medical and surgical records, letters of key participants in the case, and the trial court record. We also consider the case from the perspective of the modern culture of safety in gynecologic surgery. Contrary to what is commonly assumed, Ms Schloendorff lost her legal case, and her surgery might not have been performed at all had her clinicians known, understood, communicated, documented, and reaffirmed what the patient actually wanted. This new perspective on Schloendorff is important for gynecologic surgeons because it vividly documents the perils of implicit consent, delegating the obtaining of consent, and miscommunication among clinicians. The Schloendorff case underscores the constant need for continuous quality improvement to reduce medical errors and the risk of litigation by improving communication among surgeons.
The year 2014 marks the centennial of Justice Benjamin Cardozo’s opinion in Schloendorff v Society of New York Hospital , widely regarded as a landmark legal case in the history of informed consent. In response to what most believe was surgery to remove a pelvic mass that was discovered in an already anesthetized patient without her consent, Cardozo wrote: “Every human being of adult years and sound mind has the right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages… except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained.” This sentence appears repeatedly in the informed consent, biomedical ethics, and gynecologic literature to help to establish the legal basis of consent and to help to establish respect for patient autonomy as the ethical basis of consent.
This article presents a new, contemporary perspective on Schloendorff that demonstrates its enduring clinical relevance for gynecologic surgeons. We will show that the Schloendorff case is best interpreted as a warning about the perils of implicit consent, delegating responsibility for obtaining consent, and the resulting miscommunication among physicians, surgeons, and nurses. Schloendorff should not be considered a landmark case solely about physician paternalism, in which gynecologic surgery was performed for a patient’s benefit but without her express consent. Instead, based on the historical record, Schloendorff should now be appreciated as one of the earliest cases to illustrate the clinical and legal perils that result when surgeons fail to communicate effectively with their colleagues and their patient.
In reporting the Schloendorff case, we rely on the trial court record, which is included in the appellate court ruling in this case. We also rely on the medical and surgical records and other contemporaneous primary source materials in the Medical Center Archives of New York Presbyterian/Weill Cornell Medical Center.
The Schloendorff case: a tale of implicit consent, delegating responsibility for obtaining consent, and the resulting miscommunication
Lombardo recently has made a convincing case, on the basis of a scholarly legal analysis of the 1911 trial court record and of Justice Cardozo’s 1914 opinion for the Court of Appeals of New York, that Schloendorff was not directly about consent but was about the immunity from liability of a hospital as a charitable organization from the actions of its physicians, surgeons, and nurses. It also is not recognized commonly that the 56-year-old Ms Schloendorff lost both her uterus and her case and that the damages she claimed were the result of an embolism in the brachial artery of her left arm that developed after the operation. Ms Schloendorff alleged at the trial that, although she had given consent for an “ether examination” to determine the nature of her pelvic mass, she had told the house physicians and nurses explicitly that she did not want surgery. After her unwanted hysterectomy, she sued the hospital and not the surgeons, claiming $50,000 in damages for the loss of her fingers and her pain and suffering. Ms Schloendorff, through her attorney, alleged that she had an oral contract with the hospital to which she had paid a $7-per-week consideration that she be treated according to her direction and that this had included an explicit instruction not to be operated on. Interestingly, she did not directly accuse the hospital or its physicians of battery. It is possible that her attorney claimed there was an oral contract between her and the hospital itself because he wanted to avoid the hospital’s potential defense of charitable immunity, which effectively would have prevented her from suing the hospital for the resulting negligent treatment by the physicians and surgeons. It is also notable that the damages that were claimed did not include the loss of her fibroid uterus and ovaries as a direct result of the surgery (she was already 56 years old) but rather the significant pain and suffering she underwent as a result of an infection and gangrene in her arm, which developed some weeks later and resulted in the eventual loss of distal parts of some of her fingers.
In 1907 at Society of New York Hospital (SNYH), the medical and surgical services were separate in several dimensions. The 2 services were physically separate and had different professional staff. The medical and surgical records at SNYH, which were written in long hand on paper, appear to have been kept in different places as well. Crucially for the Schloendorff case, there were at least 3 physicians responsible for her care on the medical service and at least 3 surgeons when she was transferred to the surgery service. There is no documentation in the medical or surgical records that the patient agreed to an ether examination but refused any surgery. There is also no documentation that an ether examination was ever performed, although Ms Schloendorff did admit at trial that that was what she believed she had agreed to and what she was told would happen, at least by Dr Bartlett, who was the chief physician on the medical service. There is documentation in the medical record that indicates that at least one provider, Dr Martin, a house physician under Dr Bartlett, believed that the patient had in fact consented to surgery for what was preoperatively diagnosed as a likely fibroid uterus: “Wished operation for mass, which is just above the symphysis, size of orange, and rounded. Vaginal examination shows it to be connected to the uterus.” Although the physicians requested and received a surgical consult on their patient, there is conflicting testimony as to what the conclusion and advice given during that consult consisted of beyond the record of an examination in the chart on Jan. 26, 1907, five days before she was transferred to the surgery service. There is no documentation of physician-to-surgeon communication during or after the transfer on Jan. 31, 1907.
The patient’s past medical and social history
At the time of admission on January 10, 1907, according to the trial court record, the patient was known as Mary Gamble, a 56-year-old “teacher of physical training, voice culture of reduction and development” or voice coach. She had been living in San Francisco at the time of the 1906 earthquake, 9 months earlier, but had moved to New York to join her son because she was frightened by this experience during which she lost 2 sisters. She was admitted to the medical service of SNYH complaining of stomach pain and severe weight loss, which she attributed to anxiety resulting from the earthquake.
The patient’s medical admission
During her medical admission, she testified in the trial court proceeding that she was treated conservatively with stomach washings and diet of “a little bit of raw egg and a little bit of milk and that is all.” The medical record documents that she received different diets, bismuth, gastric lavage, and enemas and that she had gained 11 pounds over the course of her 3-week admission to the medical service. At the end of her medical admission she was declared “cured of stomach pain” that had been caused by “acidity.”
Dr Bartlett was her attending hospital physician for her medical admission; his physical examination revealed the incidental finding of an abdominal mass, which she testified that she had been aware for some time. Dr Bartlett recommended a surgical evaluation of the lump. She was seen by Dr Stimson, the chief surgeon, and Dr Cottle, a house surgeon who was Dr Stimson’s assistant. According to her testimony, Dr Stimson was not able to detect the lump because she was “too nervous, too rigid,” and he said to some other doctors who were on rounds with him that he would have to do an “ether examination.” Dr Stimson did not explain what an ether examination was, and Ms Schloendorff testified that she “did not say anything to him.” The next time she saw Dr Bartlett she asked him what was meant by an ether examination and told Dr Bartlett explicitly that she did not want an operation. Dr Bartlett assured her that there would be no operation that the ether examination “would be very simple” and would help to determine the nature of the lump. She testified that Dr Bartlett advised her that she could have surgery at another time. She packed and was ready to leave the next day. Both her landlord and her son testified that Ms Schloendorff had expected to be discharged in a few days; the landlord even produced a letter that was used as evidence of the patient’s intention.
Dr Stimson testified that he saw Ms Gamble on the medical service on Jan. 26, 1907. He testified that he was able to perform a physical examination with one hand on her abdomen and the fingers of his other hand “in the lower bowel and vagina and got it between the two hands.” He testified that his diagnosis was a “multiple fibroid tumor.” He also testified that there was no need for an ether examination; his diagnosis had precluded the need for such an examination. An unsigned note in the medical record dated January 26 would support this testimony. Dr Stimson claimed that he said to Ms Gamble that he would perform surgery “if she wanted it removed.” He added: “She did not say she was opposed to an operation.” Dr Bartlett, whose deposition testimony was introduced at trial, claimed that Ms Schloendorff “expressed a desire to have an operation” and that is the reason that he requested the consult from Dr Stimson and his staff. Dr Bartlett did not recall her ever objecting to surgery.
There is an entry in the medical record for Jan. 31, 1907, as noted earlier, that states that the patient “wishes operation.” This entry was signed by “Art Martin HD.” Dr Arthur H. Martin’s formal title was Second Senior Assistant (HD or House Doctor) on the medical service under Dr Bartlett. Dr Martin did not testify at the trial, and his name appears nowhere in the other primary sources material documents that we examined.
The patient’s surgical admission
According to Ms Schloendorff’s testimony, she was awakened by a nurse the evening of Jan. 31, 1907, and informed that she was to go to the “next ward.” She asked if this would interfere with her going home and was told that she would have an ether examination in the morning, without a meal beforehand. At some point, she was shaved, and her body was washed and covered with antiseptic cloths. She claimed that she questioned whether this preparation was necessary for an ether examination and, after being told that it was, reiterated again to the nurse that she did not want an operation. An order for preoperative preparation appears in the surgical record. According to Dr Stimson, such preparation would not have been necessary for an ether examination alone. Ms Schloendorff claimed she was shown a slip on the wall with her name and the words ether examination. Nurse Montague, who prepared her, testified that she did not have a conversation with the patient about the surgery; Nurse Oliver, who brought her to the room where the ether was administered, testified that no such “cards” or slips were used in the hospital.
Ms Schloendorff testified that she was taken by elevator in the surgical ward to another room where she was informed by the attendant that she would receive gas followed by ether. She told him that she did want an operation, and the attendant assured her that, although he did not know what she was to have, she should not worry. She asked to see somebody about the operation, but nobody came. She tried to leave but was restrained by hand. The mouthpiece was placed in her mouth, and she was instructed to breathe deeply and lost consciousness. She awoke to discover that she had indeed had surgery. The operative note would seem to support the hospital’s version of events because there is no mention of any ether examination done before surgery. However, it is conceivable that an examination under anesthesia may have been done routinely before any laparotomy.
Ms Schloendorff testified that she did not see Dr Stimson or speak to him before the operation and that after the operation she saw him only once. She asked Dr Cottle, Dr Stimson’s assistant, several times what had happened, and he was nonresponsive. She asked to talk with Dr Stimson and was told he had left the hospital and was away from the city. She noticed one morning that the fingers of her left hand were blue in some places and black in others. She asked Dr Cottle to look at her hand, which he did, but she claimed that he did nothing. This complication eventually resulted in surgical removal of the tips of her left thumb and forefinger at another hospital. This injury, and not the lack of consent and not the loss of her uterus, prompted her to file a negligence claim against SNYH.
At trial, the testimony of the doctors and nurses involved in her care provided a much different account of events. The nurses did not recall that Ms Schloendorff had notified them that she did not want surgery, that she protested, or that she had ever complained of having surgery against her wishes after the operation.
The trial court ruling
Because it was neither the custom nor the requirement to obtain written consent, there was a distinct issue of fact as to whether Ms Schloendorff had consented or not, which could have been decided by the jury. What prevented a jury from deliberating was that Ms Schloendorff did not sue her doctors at SNYH for trespass or battery, but she sued the hospital itself, alleging that it, through its agents, violated an oral contract by not following her expressed desire not to have an operation. The trial judge determined that there was no legal contract and that the hospital was immune as a charitable organization from the negligent actions of its physicians and surgeons, as long as the physicians and surgeons were appointed and hired appropriately. The trial court judge directed a verdict in the hospital’s favor, and the trial and its testimony became moot. A judge can direct a verdict, which means that he, and not the jury, determines the outcome of the case if he, either on a motion of one party or after hearing the testimony, decides that one side has not proved their case as a matter of law (ie, that an element of the claim has not been proved). In this case, the trial judge determined that no contract existed and that the hospital was not responsible for the actions of the surgeons because its charitable character conveyed immunity from any finding of negligence on the part of the physicians and surgeons.
The hospital’s position
On March 10, 1911, two months before the trial, Mr Wilson M. Powell, SNYH’s outside counsel, wrote to the SNYH Committee on Law that the plaintiff was willing to settle for $1500 rather than the $50,000 originally sought. In a March 14, 1911, letter from Mr Gerry, the chairman of the Committee on Law, to Powell, Mr Gerry stated that SNYH would not settle, to avoid setting “precedent which any such course might establish in like cases in the future.” In a March 23, 1911, letter from the Committee on Law to Mr George Rives, the president of SNYH, the Committee stated that not settling was “fully in accord with the uniform rule which the Hospital has adopted for many years.” A July 19, 1911, report from Powell to Mr Edward W. Sheldon, Superintendant of SNYH, indicated that this rule dated from at least 1877. The leadership of SNYH was not prepared to do anything that would jeopardize the immunity of the hospital as a charitable organization from liability for the conduct of its physicians, surgeons, and nurses in the care of the hospital’s patients.
Justice Cardozo’s opinion for the New York Court of Appeals
Because her case was never sent to the jury, which is the fact finder in US courts, the issue of whether she actually had given consent was never determined at trial nor by Justice Cardozo, whose decision on the law for New York’s highest court in favor of the hospital upheld the trial court’s order of a directed verdict. Cardozo finding that the physicians were independent contractors and that the nurses were required to follow the orders of physicians and surgeons agreed with the lower court judge’s ruling that the hospital was immune from any damages as a result of the alleged negligence or potential battery of the physicians, surgeons, and other hospital personnel. He cited the case as unique because its outcome did not rely on the implied waiver of charitable immunity, which would have been a valid defense against negligent treatment. He argued that, in this case, the hospital was immune because its physicians and surgeons were independent contractors and therefore not in its direct control. The nature of this relationship means that the physicians and surgeons themselves would have been responsible for any battery that might have occurred.
The outcome of the legal proceedings
Rather than emerge victorious as the result of her case, Ms Schloendorff was ordered to pay the costs of her trial and the appeal ($292.62 and $79, respectively). Lombardo is correct that the legal result of Schloendorff was to uphold the charitable immunity for hospitals in New York State, based on the relationship between a hospital and its physicians and surgeons. Cardozo’s ringing endorsement of self-determination, although certainly eloquent, was merely a reiteration of what both the doctors and trial courts before him believed was appropriate in nonemergent cases with a patient capable of understanding and giving consent.
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