Phantom Tumors and Hysterical Women: Revising Our View of the Schloendorff Case

Schloendorff v. New York Hospital, 211 N.Y. 125, 129–130 (1914).

“Informed Consent” in Encyclopedia of Bioethics, revised edition, vol. 3, Reich W. T. , ed. (New York: Simon & Schuster Macmillan, 1995): 1234.

See, for example, Faden R. R. Beauchamp T. L. , A History and Theory of Informed Consent (New York: Oxford University Press, 1986), calling Schloendorff “a powerful rallying symbol in the informed consent literature” (28) and “a classic statement of the patient's right to self-determination” (123).

Phillips v. Buffalo General Hospital, 239 N.Y. 188 (1924).

Bing v. Thunig, 2 N.Y.2d 656, at 667 (1957).

Posner R. , Cardoso: A Study in Reputation (Chicago: University of Chicago Press, 1990): At 3.

Schloendorff v. New York Hospital, supra note 1, at 127.

Schloendorff v. New York Hospital, supra note 1, at 127–128.

Schloendorff v. New York Hospital, supra note 1, at 129–130.

Schloendorff v. New York Hospital, supra note 1, at 131–132.

Schloendorff v. New York Hospital, supra note 1, at 135.

MacDonald v. Massachusetts General Hospital, 120 Mass. 432 (1876). An extensive discussion of the history of charitable immunity for hospitals is contained in Bobbe S. S. , “Tort Liability of Hospitals in New York,” Cornell Law Quarterly 37 (1951–1952): 419–438.

Holliday v. St. Leonard's, 11 C.B.H.S. 192, 142 Eng. Rep. 769 (1861).

Mersey Docks Trustees v. Gibbs, L.R. 11 H.L. Cas. 686 (1866).

See Bobbe , supra note 13, for cases rejecting the “implied waiver” rule.

Vogel M. J. , The Invention of the Modern Hospital: Boston, 1870–1930 (Chicago and London: University of Chicago Press, 1980): 106–107. One commentator noted that long before Schloendorff states such as Rhode Island had concluded that even charitable hospitals could be held liable for the misadventures of surgeons, even though they received no pay from the hospital. Kinkead E. B. , Commentaries on the Law of Torts , vol 1 (San Francisco: Bancroft-Whitney, 1903): At 209–212. The Rhode Island case (Glavin v. Rhode Island Hospital, 12 R.I. 411 [1879]) was cited by Cardozo for a different proposition, to demonstrate that a master/servant relationship does not usually exist between outside doctors and hospitals.

Court of Appeals, State of New York, Briefs and Records, Mary E. Schloendorff against The Society of the New York Hospital, (1914), Testimony of Henry Crane, at 176–177 (hereafter, Transcript).

Bobbe , supra note 13, at 427.

Schloendorff v. New York Hospital, supra note 1, at 134.

Kaufman A. , Cardozo (Cambridge, MA: Harvard University Press, 1998): At 252.

New York World, May 4, 1911, at 5.

Transcript, supra note 18, at 2.

Schloendorff v. Society of New York Hospital, 133 N.Y.S. 1143 (1912). Though the decision of the Appellate Division of the Supreme Court was rendered without an opinion, one judge noted his dissent.

Transcript, supra note 18, at 16–17.

Recurring references to Schloendorff's “nervousness” suggest a barely submerged theory of hysteria linking parts of the medical testimony. It was not uncommon for doctors to claim that surgical interventions such as hysterectomy would cure a woman's insanity. See, for example, “Insanity and Pelvic Lesions,” Medical News 76, February 3, 1900, at 176. For a summary of the literature on hysteria, see Micale M. , Approaching Hysteria: Disease and Its Interpretations (Princeton, NJ: Princeton University Press, 1995).

Transcript, supra note 18, at 17–19.

Transcript, supra note 18, at 20.

Transcript, supra note 18, at 21.

Transcript, supra note 18, at 22.

Transcript, supra note 18, at 192; Transcript, supra note 18, “Plaintiff's Exhibit # 4,” January 30, 1907 (Letter to Emily Lux), at 205.

Transcript, supra note 18, at 24.

Transcript, supra note 18, at 35.

Transcript, supra note 18, at 124.

Transcript, supra note 18, at 54.

Transcript, supra note 18, at 162.

Transcript, supra note 18, at 163.

Transcript, supra note 18, at 25–26.

Transcript, supra note 18, at 196.

Transcript, supra note 18, at 51 (Testimony of Evan Gamble).

Transcript, supra note 18, at 31.

Transcript, supra note 18, at 56–61.

Transcript, supra note 18, at 62.

Transcript, supra note 18, at 67.

Transcript, supra note 18, at 149 (Testimony of Dr. Otto Goehle).

Transcript, supra note 18, at 189 (Testimony of Dr. George M. Cottle).

Morantz-Sanchez R. , Conduct Unbecoming a Woman: Medicine on Trial in Turn-of-the-Century Brooklyn (New York: Oxford University Press, 1999): 77.

“Uterine Fibroids,” Health 62 (August 1912): 179.

Goffe J. R. , “What Advice Should be Given to a Woman Suffering from Fibroid Tumor of the Uterus?” Medical News 82 (February 7, 1903): 247–249.

Goelet A. H. , “The Palliative Treatment of Fibroid Tumors of the Uterus,” Medical News 83 (August 8, 1903): 258–260.

Webster C. J. , “A Consideration of Fibroid Tumors of the Uterus Based Upon a Series of Cases Treated Surgically,” Medical News 86 (April 22, 1905): 764–768.

Deaver J. B. , “A Year's Work in Hysterectomy,” The American Journal of the Medical Sciences 145 (April 1913): 469–474.

Transcript, supra note 18, at 57.

Transcript, supra note 18, at 38.

Transcript, supra note 18, at 40–44.

Transcript, supra note 18, at 45 (Testimony of Lillias M. Reeve).

Transcript, supra note 18, at 191, 192 (Testimony of George M. Cottle and Testimony of Lillias M. Reeve, in rebuttal).

Transcript, supra note 18, at 125.

Transcript, supra note 18, at 110.

Transcript, supra note 18, at 117.

Transcript, supra note 18, at 108.

Transcript, supra note 18, at 49.

Transcript, supra note 18, at 129.

Lest this issue seem too clear, yet another physician testified: “It is not the custom to operate without the consent of friends of the patient, such friends being matters of record in the office of the institution where they happen to be placed.” Transcript, supra note 18, at 167 (Testimony of Dr. William M.Polk).

Pernick M. , “The Patient's Role in Medical Decisionmaking: A Social History of Informed Consent,” in President's Commission for the Study of Ethical Problems in Medicine and Biomedical Research, Making Health Care Decisions: The Ethical and Legal Implications of Informed Consent in the Patient-Practitioner Relationship (Washington, DC: Government Printing Office, 1982) Appendices: Studies on the Foundations of Informed Consent, volume 3: At 4, 11.

Kinkead E. B. , Commentaries on the Law of Torts, vol. 1 (San Francisco: Bancroft-Whitney, 1903): 375.

Mohr v. Williams (95 Minn. 261, 268 [1905]).

Mohr v. Williams, supra note 69, at 269.

Mohr v. Williams, supra note 69, at 271.

Pratt v. Davis (224 Ill. 300, 305 [1906]).

Rishworth v. Moss (159 S. W. 122, 124 [Tex. 1913]).

Rishworth v. Moss, supra note 73, at 124.

Rolater v. Strain (137 Pac. 96, 98 [Okl. 1913]).

This is the conclusion of some of the most thorough commentary on the case as well; see Katz J. , The Silent World of Doctor and Patient (New York: Free Press, 1984): 51–52. Katz is the only commentator I have identified in the bioethics literature who realized that the operation on Mary Schloendorff was a hysterectomy. His attention to the gynecological focus of the Schloendorff surgery is echoed by Kathleen E. Powderly, who also challenges Katz's view that consent was not commonly sought, while crediting the Schloendorff case with establishing the legal doctrine of informed consent. See Powderly K. E. , “Patient Consent and Negotiation in the Brooklyn Gynecological Practice of Alexander J. C. Skene: 1863–1900,” Journal of Medicine and Philosophy 25 (2000): 12–27. One recent Cardozo biographer also identifies the hysterectomy amid an extensive analysis of the case, describing it along with similar personal injury cases that generated Cardozo opinions as an example of judicial deference to the learned professions, see Polenberg R. , The World of Benjamin Cardozo (Cambridge, MA: Harvard University Press, 1997): 108–114.

“From the earliest of times under the English, and later the American, common law, consent of the patient to medical treatment has been required in all but exceptional circumstances,” Lidz C. W. Meisel A. , “Informed Consent and the Structure of Medical Care,” in President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Making Health Care Decisions: The Ethical and Legal Implications of Informed Consent in the Patient-Practitioner Relationship (Washington, DC: U.S. Government Printing Office, 1982), Appendices: Empirical Studies of Informed Consent, volume 2: At 317; for criminal prohibitions on surgery without consent, see The Colonial Laws of Massachusetts Reported from the Edition of 1660, “Chirurgions, Midwives, Physicians,” 1649, L.2.P.3.