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Marshall v Curry (1933), 3 DLR 260 (NS SC)

Facts:

C operated on M to cure a hernia. During the operation, C found problems with M’s left testicle and decided to remove it to save him. M sued C in battery for removing the testicle.

Issue(s):

Did the surgeon act without consent?

Ratio:

In a medical emergency where it is impossible to obtain a person's consent, health care professionals may intervene to save that person's life.

Analysis:

Per Chisholm CJ, there are rules governing consent to medical treatment:
** 1. Where consent can be obtained, it must be obtained;
** 2. Such consent can be expressed or implied;
** 3. Consent can be implied from conversations before surgery or from preceding circumstances

But in a medical emergency when it is impossible to obtain consent, surgeons can intervene to save a person’s life. C should not be held liable for carrying out the procedure.

Holding:

Decision in favour of C.


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