De May v. Roberts

In De May v. Roberts (1881) 46 Mich. 160 9 N.W. 146, 147-149, a physician took a nonprofessional male, identified by name in the opinion only as a Mr. Scattergood, to a patient's home to assist in the delivery of a baby. The physician introduced the gentleman, identified only as Mr. Scattergood, to the patient's husband as "a friend." The De May opinion describes these events as follows: "The doctor said to him, 'that I had fetched a friend along to help carry my things . . . .' " ( De May v. Roberts, supra, 9 N.W. at p. 147.) Mr. Scattergood had no knowledge about the practice of medicine. However, Mr. Scattergood was allowed to assist in the delivery by taking the patient's hand and holding her during a "paroxysm of pain." The Michigan Supreme Court concluded that both the physician and Mr. Scattergood were liable for the intrusion. De May held that the patient had the right to presume that a practicing physician would not take a person who is not connected with the medical profession to assist in a childbirth. (Ibid.) De May stated: "We are of opinion that the plaintiff and her husband had a right to presume that a practicing physician would not, upon an occasion of that character, take with him and introduce into the house, a young man in no way, either by education or otherwise, connected with the medical profession; and that something more clear and certain as to his non-professional character would be required to put the plaintiff and her husband upon their guard, or remove such presumption, than the remark made by the physician that he had brought a friend along to help carry his things. The plaintiff was not bound however . . . strong it might be considered, but had a right to prove what she supposed was the fact, and this she could do by showing anything said at the time having such a tendency, or in the absence thereof what she actually believed to be the fact." (Ibid.) De May further concluded that the patient was not precluded from recovering damages because she and her husband consented to the third party's presence under the mistaken assumption that he was a physician. De May stated: "The physician therefore took an unprofessional young unmarried man with him, introduced and permitted him to remain in the house of the plaintiff, when it was apparent that he could hear at least, if not see all that was said and done, and as the jury might have found, under the instructions given, without either the plaintiff or her husband having any knowledge or reason to believe the true character of such third party. It would be shocking to our sense of right, justice and propriety to doubt even but that for such an act the law would afford an ample remedy. To the plaintiff the occasion was a most sacred one and no one had the right to intrude unless invited or because of some real and pressing necessity which it is not pretended existed in this case. The plaintiff had a legal right to the privacy of her apartment at such a time, and the law secures to her this right by requiring others to observe it, and to abstain from its violation. The fact that at the time, she consented to the presence of Mr. Scattergood supposing him to be a physician, does not preclude her from maintaining an action and recovering substantial damages upon afterward ascertaining his true character. In obtaining admission at such a time and under such circumstances without fully disclosing his true character, both parties were guilty of deceit, and the wrong does thus done entitles the injured party to recover the damages afterwards sustained, from shame and mortification upon discovering the true character of the defendant. . . ." ( De May v. Roberts, supra, 9 N.W. at pp. 148-149.)