Position Paper 3 in Healthcare

Shorter v. Drury (Week 7)

Supreme Court of Washington, 1985. 103 Wash.2d 645, 695 P.2d 116 .

Dolliver, Justice.

This is an appeal from a wrongful death medical malpractice action arising out of the bleeding death of a hospital patient who, for religious reasons, refused a blood transfusion. Plaintiff, the deceased’s husband and personal representative, appeals the trial court’s judgment on the verdict in which the jury reduced plaintiff’s wrongful death damages by 75 percent based on an assumption of risk by the Shorters that Mrs. Shorter would die from bleeding. The defendant doctor appeals the judgment alleging that a plaintiff-signed hospital release form completely barred the wrongful death action. Alternatively, defendant asks that we affirm the trial court’s judgment on the verdict. Defendant does not appeal the special verdict in which the jury found the defendant negligent.

The deceased, Doreen Shorter, was a Jehovah’s Witness, as is her surviving husband, Elmer Shorter. Jehovah’s Witnesses are prohibited by their religious doctrine from receiving blood transfusions.

Doreen Shorter became pregnant late in the summer of 1979. In October of 1979, she consulted with the defendant, Dr. Robert E. Drury, a family practitioner. Dr. Drury diagnosed Mrs. Shorter as having had a “missed abortion”. A missed abortion occurs when the fetus dies and the uterus fails to discharge it.

When a fetus dies, it is medically prudent to evacuate the uterus in order to guard against infection. To cleanse the uterus, Dr. Shorter recommended a “dilation and curettage” (D and C). There are three alternative ways to perform this operation. The first is with a curette, a metal instrument which has a sharp-edged hoop on the end of it. The second, commonly used in an abortion, involves the use of a suction device. The third alternative is by use of vaginal suppositories containing prostaglandin, a chemical that causes artificial labor contractions. Dr. Drury chose to use curettes.

Although the D and C is a routine medical procedure there is a risk of bleeding. Each of the three principal methods for performing the D and C presented, to a varying degree, the risk of bleeding. The record below reflects that the curette method which Dr. Drury selected posed the highest degree of puncture-caused bleeding risk due to the sharpness of the instrument. The record also reflects, however, that no matter how the D and C is performed, there is always the possibility of blood loss.

Dr. Drury described the D and C procedure to Mr. and Mrs. Shorter. He advised her there was a possibility of bleeding and perforation of the uterus. Dr. Drury did not discuss any alternate methods in which the D and C may be performed. Examination of Mr. Shorter at trial revealed he was aware that the D and C posed the possibility, albeit remote, of internal bleeding.

The day before she was scheduled to receive the D and C from Dr. Drury, Mrs. Shorter sought a second opinion from Dr. Alan Ott. Mrs. Shorter advised Dr. Ott of Dr. Drury’s intention to perform the D and C. She told Dr. Ott she was a Jehovah’s Witness. Although he confirmed the D and C was the appropriate treatment, Dr. Ott did not discuss with Mrs. Shorter the particular method which should be used to perform it. He did, however, advise Mrs. Shorter that “she could certainly bleed during the procedure” and at trial confirmed she was aware of that possibility. Dr. Ott testified Mrs. Shorter responded to his warning by saying “she had faith in the Lord and that things would work out. * * * ”

At approximately 6 a.m. on November 30, Mrs. Shorter was accompanied by her husband to Everett General Hospital. At the hospital the Shorters signed [a consent form that included the following language]: “I hereby release the hospital, its personnel, and the attending physician from any responsibility whatever for unfavorable reactions or any untoward results due to my refusal to permit the use of blood or its derivatives and I fully understand the possible consequences of such refusal on my part.”

The operation did not go smoothly. Approximately 1 hour after surgery, Mrs. Shorter began to bleed internally and go into shock. Emergency exploratory surgery conducted by other surgeons revealed Dr. Drury had severely lacerated Mrs. Shorter’s uterus when he was probing with the curette.

Mrs. Shorter began to bleed profusely. She continued to refuse to authorize a transfusion despite repeated warnings by the doctors she would likely die due to blood loss. Mrs. Shorter was coherent at the time she refused to accept blood. While the surgeons repaired Mrs. Shorter’s perforated uterus and abdomen, Dr. Drury and several other doctors pleaded with Mr. Shorter to permit them to transfuse blood into Mrs. Shorter. He likewise refused. Mrs. Shorter bled to death. Doctors for both parties agreed a transfusion in substantial probability would have saved Doreen Shorter’s life.

Mr. Shorter thereafter brought this wrongful death action alleging Dr. Drury’s negligence proximately caused Mrs. Shorter’s death; the complaint did not allege a survival cause of action. The release was admitted into evidence over plaintiff’s objection. Plaintiff took exception to jury instructions numbered 13 and 13A which dealt with assumption of the risk.

The jury found Dr. Drury negligent and that his negligence was “a proximate cause of the death of Doreen Shorter”. Damages were found to be $412,000. The jury determined, however, that Mr. and/or Mrs. Shorter “knowingly and voluntarily” assumed the risk of bleeding to death and attributed 75 percent of the fault for her death to her and her husband’s refusal to authorize or accept a blood transfusion. Plaintiff was awarded judgment of $103,000. Both parties moved for judgment notwithstanding the verdict. The trial court denied both motions. Plaintiff appealed and defendant cross-appealed to the Court of Appeals, which certified the case pursuant to RCW 2.06.030(d).

The three issues before us concern the admissibility of the “Refusal to Permit Blood Transfusion” (refusal); whether assumption of the risk is a valid defense and if so, whether there is sufficient evidence for the jury to have found the risk was assumed by the Shorters; and whether the submission of the issue of assumption of the risk to the jury violated the free exercise clause of the First Amendment. The finding of negligence by Dr. Drury is not appealed by defendant.

I

Plaintiff argues the purpose of the refusal was only to release the defendant doctor from liability for not transfusing blood into Mrs. Shorter had she required blood during the course of a nonnegligently performed operation. He further asserts the refusal as it applies to the present case violates public policy since it would release Dr. Drury from the consequences of his negligence.

Defendant concedes a survival action filed on behalf of Mrs. Shorter for her negligently inflicted injuries would not be barred by the refusal since enforcement would violate public policy. Defendant argues, however, the refusal does not release the doctor for his negligence but only for the consequences arising out of Mrs. Shorter’s voluntary refusal to accept blood, which in this case was death.

While the rule announced by this court is that contracts against liability for negligence are valid except in those cases where the public interest is involved [ ], the refusal does not address the negligence of Dr. Drury. This being so it cannot be considered as a release from liability for negligence. * * *

Plaintiff categorizes the refusal as an all or nothing instrument. He claims that if it is a release of liability for negligence it is void as against public policy and if it is a release of liability where a transfusion is required because of nonnegligent treatment then it is irrelevant. We have already stated the document cannot be considered as a release from liability for negligence. The document is more, however, than a simple declaration that the signer would refuse blood only if there was no negligence by Dr. Drury. * * *

We find the refusal to be valid. There was sufficient evidence for the jury to find it was not signed unwittingly but rather voluntarily. * * *

We also hold the release was not against public policy. We emphasize again the release did not exculpate Dr. Drury from his negligence in performing the surgery. Rather, it was an agreement that Mrs. Shorter should receive no blood or blood derivatives. The cases cited by defendant, [including Tunkl, above] all refer to exculpatory clauses which release a physician or hospital from all liability for negligence. The Shorters specifically accepted the risk which might flow from a refusal to accept blood. Given the particular problems faced when a patient on religious grounds refuses to permit necessary or advisable blood transfusions, we believe the use of a release such as signed here is appropriate. [ ] Requiring physicians or hospitals to obtain a court order would be cumbersome and impractical. * * * [ ] The alternative of physicians or hospitals refusing to care for Jehovah’s Witnesses is repugnant in a society which attempts to make medical care available to all its members.

We believe the procedure used here, the voluntary execution of a document protecting the physician and hospital and the patient is an appropriate alternative and not contrary to the public interest.

If the refusal is held valid, defendant asserts it acts as a complete bar to plaintiff’s wrongful death claim. We disagree. While Mrs. Shorter accepted the consequences resulting from a refusal to receive a blood transfusion, she did not accept the consequences of Dr. Drury’s negligence which was, as the jury found, a proximate cause of Mrs. Shorter’s death. Defendant was not released from his negligence. We next consider the impact of the doctrine of assumption of the risk on this negligence.

II

[In Part II the court considered assumption of the risk as a defense.]

* * * Defendant argues, and we agree, that the Shorters could be found by the jury to have assumed the risk of death from an operation which had to be performed without blood transfusions and where blood could not be administered under any circumstances including where the doctor made what would otherwise have been correctable surgical mistake. The risk of death from a failure to receive a transfusion to which the Shorters exposed themselves was created by, and must be allocated to, the Shorters themselves.

* * *

III

[The court in Part III rejected the argument that the submission of the issue of assumption of the risk to the jury violated the free exercise clause of the First Amendment, since no state action was present.]

* * *

Affirmed.

Notes and Questions

1.Consider the relative risks of the different approaches to a missed abortion. Did the treating physician properly take into account the risk factors presented by a Jehovah’s Witness patient? Is a religious or personal belief of this sort part of the presenting characteristics of a patient, requiring adjustment of the treatment approach?

2.Jehovah’s Witnesses rarely sue physicians who respect their decisions not to receive blood. A decision to vitiate the partial release in Shorter might have discouraged surgeons from agreeing to treat Jehovah’s Witnesses consistent with their religious beliefs.

The refusal by Jehovah’s Witnesses to accept blood transfusions has its origins in their interpretation of the Bible. They have prepared brochures for health care professionals that explain these beliefs, stating that they will sign consent forms that relieve doctors of any responsibility for possible adverse consequences of blood refusal. See the website of the Associated Jehovah’s Witnesses for Reform on Blood for an example of cards that reflect the Church’s blood policies. See generally Chapter 18 for discussions of issues related to death and dying, including statutory provisions for limitation of liability for complying with advanced directives.

3.Shorter offers a defense of a partial waiver, under a special set of circumstances. The issue is important for two reasons. First, providers would like to limit their liability exposure in order to keep malpractice premiums under control. Second, economists and other reformers of the tort system advocate the use of contracts that allocate risk by agreement.

4.California has a binding arbitration provision in MICRA (Medical Injury Compensation Reform Act) and it is estimated that about ten percent of medical malpractice disputes go to binding arbitration. See Michael F. Cannon, CATO Handbook for Policymakers (7th Edition), Chapter 15, Health Care Regulation.

What objections might be raised to such forms of binding arbitration imposed by contract? See discussion of enforceability of arbitration agreements, including application of the Federal Arbitration Act, in Chapter 3.

Several states have adopted contract approaches, such as elective arbitration contracts that allow the provider and the patient to change the forum for resolving the dispute. Some states do not mandate the referral of medical malpractice claims to arbitration, but instead authorize health care providers to include arbitration clauses in their contracts, so long as an agreement to arbitrate is not a condition of service. The patient must have a right to rescind within 90 days. See for example Colo. Rev. Stat. Ann. § 13–64–403 . See generally Carol A. Crocca, Arbitration of Medical Malpractice Claims, 24 A.L.R.5th 1 .

Problem: Arbitrating Disaster

Rhoda Cumin went to the Gladstone Clinic in Las Vegas, Nevada to get a prescription for an oral contraceptive. Her medical history put her at a higher risk of a stroke from use of birth control pills. She did not know this, but her medical records and history would have alerted an obstetrician to the risk. She obtained a prescription for the pills, and began taking them. Six months later she suffered a cerebral incident that left her partially paralyzed. Her lifetime medical expenses, including physical therapy, lost earning capacity, and pain suffering, could be as much as $ 10 million.

Ms. Cumin has asked you to handle her suit against the clinic. Your investigation determines that the clinic was negligent in prescribing the contraceptive in light of Ms. Cumin’s history. You file a negligence action. The clinic then moves to stay the lawsuit pending arbitration, and for a court order to compel arbitration. Its affidavit states that the clinic requires all patients to sign an arbitration agreement before receiving treatment. This agreement requires two things: first, it provides that all disputes must be submitted to binding arbitration and that the parties expressly waive their right to a trial. Second, it puts a cap of $250,000 on the patient’s right to recover.. The clinic’s standard procedure is to have the receptionist hand the patient the agreement along with two information sheets, informing her that any questions will be answered. The patient must sign the agreement before receiving treatment; the physician signs later. If the patient refuses to sign, the clinic refuses treatment. The agreement, signed by your client, is attached to the affidavit.

Ms. Cumin tells you that she does not remember either signing the agreement or having it explained to her, and you file an affidavit to that effect. Prepare a memorandum of law in support of your motion in opposition to arbitration.

Problem: Mediating Disaster

Rhoda Cumin suffered a cerebral incident as a result of her use of birth control pills (see previous problem). She was admitted to Gladstone Urban Hospital, a major teaching hospital in the State of Sympathy. At the time of admission, she was presented for her signature a mediation clause which stated:

I agree that any claim which may arise out of the care provided to me by the physicians, nurses and other health care providers at the Gladstone Urban Hospital or any of its affiliates shall be governed by the law of the State of Sympathy. I also agree that before any lawsuit is filed for damages arising out of or related to the care provided to me, I must attempt to resolve any claim through mediation. Mediation is a process through which a neutral third person tries to help settle claims. I do not waive my right to file a lawsuit if the mediation process fails to resolve my claim. I further agree that any mediation or court proceeding must take place in the State of Sympathy. This agreement is binding on me and any individual or entity making claim on my behalf.

She signed the mediation clause. During the course of her treatment, she suffered a serious medical error during treatment for her stroke, which left her partially paralyzed. Gladstone is aware that this was a preventable adverse event, the result of a combination of surgical, charting, and nursing errors.

You represent Gladstone. How will you design mediation? What approach will you take to the mediation discussions? What goals do you have in mind on behalf of the Hospital?