"The Craze for Legal Proceedings": Another Look at <i>Schloendorff v. New York Hospital</i>

In 1914, Judge Benjamin Cardozo wrote an appellate decision in the case of Schloendorff v. Society of the New York Hospital containing the assertion, “Every human being of adult years and sound mind has a right to determine what shall be done to his own body.” This quotation later became a touchstone for discussions of the principle of informed consent. Previous scholarship has questioned the use of Schloendorff as a byword of patient self-determination, but more recently discovered records suggest yet another way to understand the famous case. Material from the archive of the New York Hospital--where Mary Schloendorff's surgery took place--demonstrates that her testimony was almost certainly true: she did not give consent to the surgery that led to her injuries. Yet fully aware of these facts, hospital officials followed a policy, by then more than thirty years old, to deny all liability and litigate all malpractice claims rather than admit fault and compensate injured patients. This paper explores a new perspective on Schloendorff. We should understand the case as an important, albeit early, skirmish in the 20th Century medical malpractice wars. Calls by medical societies to block access to court for injured patients were commonplace even before Schloendorff, and early proposals for what is currently termed “tort reform,” predate it as well. The defense strategy of routinely denying liability and refusing to compensate patient injuries regardless of how they were caused was a well-established practice at the New York Hospital even in 1914. Current campaigns to further limit patient access to courts often echo century-old policies designed to avoid responsibility for medical errors.