A Master Mariner's Left Testicle and the Law of Surgical Consent in Mid-20th Century Canada

Canadian medical and legal historians have given little attention to the history of medical malpractice law. This article examines one aspect of this subject, the litigation that arose over issues of consent in advanced surgeries, by offering a contextualized case study of Marshall v. Curry (1933). In Marshall, a master mariner from Nova Scotia sued for $10,000 in damages for negligence and assault after a surgeon removed his left testicle without his approval during a hernia operation. Marshall lost at trial, but the Nova Scotia Supreme Court decision became precedent for the principle that doctors could undertake more aggressive procedures without consent only if the patient's life or health were in immediate danger. This study considers why these cases became more common by the early twentieth century, teases out the changing law of consent, and suggests what the case tells us about judicial attitudes towards patients and doctors.