Rewritten Opinion: Schloendorff v. NY Soc'y Hospital

Kelly K. Dineen, Rewritten Opinion, Schloendorff v. Society of New York Hospital, 105 N.E. 92 (N.Y. 1914) in Seema Mohapatra and Lindsay F. Wiley, FEMINIST JUDGMENTS: REWRITTEN HEALTH LAW OPINIONS (edited collection), Cambridge University Press (forthcoming 2020) (invited contribution).

8 Pages Posted: 4 Nov 2020

See all articles by Kelly K. Dineen

Kelly K. Dineen

Creighton University School of Law

Date Written: September 2019

Abstract

This is a rewritten opinion, in the form of a dissent, of Schloendorff v. New York Society Hospital (1914), which is widely cited for its dicta on the right to bodily autonomy. Using the historical court records and contemporaneous nursing and medical literature, this dissent highlights the subrogation of the female plaintiff's testimony and minimization of the professional role of (female) nurses in the majority opinion in upholding a directed verdict.

Mary Schloendorff walked into the Society of New York Hospital (appellee) for stomach upset, agreeing to pay a weekly rate in exchange for care and treatment. She was wheeled out with permanent crippling injuries and infected open wounds, unhealed for two years. These complications followed the surgical removal of her uterus performed outside of the agreement for care, without her consent, and over her repeated objections to both nurses and physicians in the appellee hospital.

The majority deviates from its obligations in reviewing a directed verdict, which entitles the appellant to “the most favorable inferences deducible from the evidence, with “all disputed facts to be treated as established in her favor.” McDonald v. Metro. S. R. Co., 60 N.E. 282, 283 (N.Y. 1901); Keller v. Halsey, 95 N.E. 634 (N.Y. 1911)(when evidence is sufficient, the question of credibility of the witnesses is for the jury). Throughout the opinion, testimony is ignored and misstated to provide appellee shelter from liability. Mrs. Schloendorff’s accounts are minimized while the physicians’ is emphasized, despite their testimony consisting mostly of the inability to recall anything, except their certainty that they had not wronged the appellant.

Fundamentally, the majority seriously misunderstands the nature of the modern hospital; in particular, their portrayal of nursing is outdated a half a century. Today’s nurses are trained, educated professionals with independent duties and obligations to their patients. As Florence Nightingale said, “what cruel mistakes are made by benevolent men in matters about which they can know nothing and think they know a great deal.” Notes on Nursing: What it is and What it is Not, (D. Appelton and Co. 1860). An accurate accounting of the roles and responsibilities of nurses, as well as and appropriate deference to the appellant in reviewing the evidence leads to the conclusion that a directed verdict was improper; as such, I respectfully dissent.

Keywords: feminist, reproduction, bodily autonomy, history, charitable immunity, hospital liability

JEL Classification: K13, K32

Suggested Citation

Dineen, Kelly K., Rewritten Opinion: Schloendorff v. NY Soc'y Hospital (September 2019). Kelly K. Dineen, Rewritten Opinion, Schloendorff v. Society of New York Hospital, 105 N.E. 92 (N.Y. 1914) in Seema Mohapatra and Lindsay F. Wiley, FEMINIST JUDGMENTS: REWRITTEN HEALTH LAW OPINIONS (edited collection), Cambridge University Press (forthcoming 2020) (invited contribution). , Available at SSRN: https://ssrn.com/abstract=3692575 or http://dx.doi.org/10.2139/ssrn.3692575

Kelly K. Dineen (Contact Author)

Creighton University School of Law ( email )

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Omaha, NE 68178
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