Mama's Got a Plan:

Maternity Care, Health Insurance, and Reproductive Justice

Uninformed unconsent

“[U]nconsented-to medical treatment is only generally a battery. Consent to a particular procedure may be “inferred from the patient’s action of seeking treatment or some other act manifesting a willingness to submit to a particular course of treatment.” [internal cite omitted]. Here, Carol came to the hospital for the purpose of medical treatment: the birth of Mikayla. The complaint itself admits that Carol had used marijuana and methamphetamines the week before giving birth to Mikayla. […] Insofar as we can determine from the pleadings and the record, Carol did not at any time communicate to any personnel at the hospital that she wished not to be tested for drugs. Testing Carol for drugs without first obtaining her consent did not constitute a battery here, where Carol unambiguously consented to the course of treatment — the birth of Mikayla — pursuant to which the drug test was conducted, and where Carol in no way communicated a desire not to be tested.”

I ran across the text above when looking for something else entirely in Michigan case law. In the 2008 case of Jodis v. Brubaker, the Michigan Court of Appeals apparently felt that when you enter a hospital to give birth, you automatically consent to anything your providers think is necessary, unless you explicitly tell your providers you do not consent to that procedure they haven’t told you about.

I will leave it to your imagination as to how this might play out for people in labor and what would happen if this scenario were extended to any other class of people seeking medical care.

What we have here is neither informed nor consent.


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