## Facts

- A married woman was in labor at home and retained Dr. De May to attend her professionally.
- Dr. De May, feeling ill and concerned about travel conditions, brought along Alfred Scattergood, an unmarried acquaintance with no medical training, to assist with travel and carrying items.
- Dr. De May informed the woman’s husband only that he had brought a “friend” to help carry things; the husband admitted both men.
- Neither defendant disclosed that Scattergood was not a physician or medical student, and the family presumed he was a medical associate.
- Scattergood entered and remained in the lying-in room during labor, an occasion involving heightened privacy.
- During labor, Scattergood at least once held the woman’s hand during pain.
- The woman later learned Scattergood had no medical qualifications and sued, alleging deceitful intrusion and an unlawful, offensive touching.

## Issues

1. Whether the plaintiff’s apparent submission to the stranger’s presence and contact constituted consent when based on a mistaken belief, fostered by defendants, that he was medically connected to the physician.
2. Whether both the physician who brought the unqualified person and the unqualified person himself could be held liable where no real necessity justified the latter’s presence.
3. Whether the plaintiff could prove her mistaken belief and the reasonableness of it through testimony about her understanding, contemporaneous statements, and medical custom.

## Decision

- The Michigan Supreme Court affirmed the judgment for the plaintiff.
- The court held that consent obtained through deception or material nondisclosure about the intruder’s status was ineffective.
- The court held both defendants liable in damages where a physician brings an unprofessional unmarried man into a childbirth setting without real necessity, regardless of the patient’s or husband’s mistaken assumption that the intruder is medically qualified.
- The court approved admitting evidence of the plaintiff’s belief about Scattergood’s status and evidence of customary medical practice regarding assistance in childbirth cases.
- The court recognized that damages are recoverable even if the full extent or character of the injury is discovered long after the wrongful act.

## Legal Principles

- Consent is not a defense to offensive touching or wrongful intrusion when it is induced by deceit or a material misapprehension of relevant facts created or allowed by the defendant.
- In intimate medical care, a patient may assume that an unexplained additional person brought by a physician is medically connected; obtaining entry without disclosing the person’s true nonmedical status constitutes actionable deceit.
- When no real necessity exists for a nonprofessional’s presence during childbirth care, both the physician who introduces the person and the person who intrudes may be jointly liable for resulting damages.
- A plaintiff may testify to her belief and the surrounding statements supporting that belief, and may introduce evidence of professional custom to show what assumptions were reasonable in context.
- The timing of discovery does not bar recovery; damages may be awarded though the injury’s full character is learned later.

## Conclusion

The court sustained liability for a physician and a nonprofessional intruder who, without necessity and without disclosure, placed a stranger in a woman’s childbirth room, holding that apparent acquiescence based on deception about material facts is not valid consent and does not excuse wrongful intrusion and offensive contact.


De May v. Roberts, 46 Mich. 160, 9 N.W. 146 (Mich. 1881)