          THEA-BTORNEY             GENERAL
                      OFTEXAS




Honorable Raymond Vowel1          Opinion No. WW-498
Executive Director
Board for Texas State Hospitals   Re: Under given circumstances,
  and Special Schools                 can a surgeon operate on
Austin, Texas                         a patient of the East
                                      Texas Tuberculosis Hospital
                                      and give necessary blood
                                      transfusions when said
                                      patient's mother refuses
                                      to give consent to the
                                      transfusions, and related
Dear Mr. Vowell:                      question.
         In your letter of August 1, 1958, you state as fol-
lows:
            "We have a patient at our East Texas
        Tuberculosis Hospital, Miss Joyce Young,
        a colored female, age 18, who is in need
        of surgery. Her mother, who is a member
        of the Sect of Jehovah Witnesses, has
        given her consent to the performance of
        surgery but in a separate letter has re-
        fused her consent to the use of blood
        transfusions during the operation. Our
        surgeon In his own judgment cannot per-
        form the surgery unless he could use
        blood for transfusion in case it became
        necessary. We call your attention to the
        provisions of Article 317&b-2, V. C. S.,
        which is pertinent to this subject.

             "Your opinion with respect to the fol-
         lowing questions is respectfully requested:
             "1. Under these facts, may we perform
         the surgery using blood transfusions if
         necessary?
Honorable Raymond Vowell, page 2.   (w-498)


             "2. Could we in a similar case per-
         form medically recognized surgery on a
         patient in one of our hospitals where
         the responsible relative or guardian re-
         fuses to consent to the performance of
         any surgery?"
         There is no statutory provision, as such,
prohibiting a doctor from operating on a minor with-
out the consent of the parent. The prohibition comes
from the operation being a technical assault on the
minor, for which the doctor is liable for damages as
a matter of law and such damages are not "dependent
upon the extent of the Injuries to the minor child."
Moss v. Rishworth, 222 S.W. 225, (Comm. App. 1920).
         Therefore, if the surgeon, under the circum-
stances of this request, performs the operatlon he will
find himself in this position: (1) If blood trans-
fusion becomes necessary and the doctor gives such blood
transfusion, he has violated the consent of the parent
and has performed an operation on a minor without con-
sent of the parent and has committed technical assault
for which he is liable for damages as a matter of law;
(2) If blood transfusion becomes necessary and he fails
to give blood transfusion, and injuries or death result
therefrom, he is liable for the reason of such negligence.
         Thus, it is our opinion that the conditiona!
consent of the parent in the instant case amounts to no
consent at all. The surgeon will become liable for
technical assault if the operation is performed. There-
fore, unless your surgeon is willing to assume liability
for technical assault, the answer to both of your ques-
tions must be "no".
         In the Article you refer to, Article 3174b-2,
the Legislature provided for two exceptions to the con-
sent rule mentioned above. One of the exceptions per-
tains to cases where there is no immediate reply to a
request for the necessary consent, and the other excep-
tion pertains to those cases where there is no guardian
or responsible relative to whom request for consent can
be made. Neither of these exceptions is applicable to the
facts of the instant case.
-



    Honorable Raymond Vowell, page 3.      (w-498 1



                                SUMMARY

                  A surgeon employed by the Board for
                  Texas State Hospitals and Special
                  Schools may not operate on or give
                  blood transfusions to a child where
                  the parent has refused to consent to
                  the same without incurring the pos-
                  sibility of civil liability.
                                    Sincerely,
                                   WILL WILSON
                                   Atzrney General of Texas



                                          Jay Howell
    JH:cl:zt                              Assistant


    APPROVED:
    OPINION COMMITTEE
    Gee. P. Blackburn, Chairman
    John Reeves
    Raymond V. Lofton, Jr.
    John B. Webster
    REVIEWED FOR THE ATTORNEY GENERAL
    BY:   J. C. Davis, Jr.
