Takeaway
In short, this case holds that a patient may voluntarily assume the risk of death caused by refusing blood, even when negligent treatment contributes to the need for a transfusion, but the refusal does not itself release the physician from malpractice liability.
Doreen Shorter, a Jehovah’s Witness, underwent a dilation and curettage after a missed abortion. Because of her religious beliefs, she and her husband refused blood transfusions. Before the procedure, they signed a hospital form requesting that no blood or blood derivatives be given and releasing the hospital, its personnel, and the attending physician from responsibility for adverse results caused by that refusal.
Dr. Robert Drury performed the procedure with a curette, a method that carried a comparatively greater risk of uterine perforation and bleeding. He severely lacerated Mrs. Shorter’s uterus. Although subsequent surgeons repaired the injury, Mrs. Shorter continued to refuse a transfusion despite repeated warnings that she would likely die without one. Her husband also refused permission for a transfusion. She bled to death.
Mr. Shorter brought a wrongful-death malpractice action, alleging that Dr. Drury’s negligence proximately caused his wife’s death. The jury found Dr. Drury negligent, found damages of $412,000, but attributed 75 percent of the fault to the Shorters’ knowing and voluntary assumption of the risk of death from refusing blood. The trial court entered judgment for $103,000. Mr. Shorter appealed, and Dr. Drury cross-appealed, arguing that the refusal form barred the action entirely.
Issue #1
Whether the blood-transfusion refusal form was valid and admissible.
Holding
Yes. The form was a valid, voluntary agreement concerning the consequences of refusing blood, and the trial court properly admitted it.
Reasoning
The form did not purport to release Dr. Drury from liability for negligently performing surgery. Instead, it specifically requested that no blood be administered and released the hospital, its staff, and the attending physician from responsibility for adverse results caused by the refusal of blood.
The evidence supported a finding that the Shorters signed knowingly and voluntarily. Mrs. Shorter had been warned by both Dr. Drury and a second physician that a D and C could cause bleeding, that a perforation could place her in grave danger, and that refusal of blood could result in death. She nevertheless remained firm in her religiously based decision.
The Court rejected the argument that the refusal was void as against public policy. A form documenting a competent patient’s voluntary refusal of blood is an appropriate means of respecting that choice while allowing physicians and hospitals to provide care without requiring a court order or refusing treatment to Jehovah’s Witnesses altogether.
Issue #2
Whether the refusal form completely barred the wrongful-death action against Dr. Drury.
Holding
No. The form did not absolve Dr. Drury of liability for his negligent surgery and therefore did not wholly bar the wrongful-death claim.
Reasoning
Mrs. Shorter accepted the consequences that might flow from refusing a transfusion, including death from otherwise uncorrectable blood loss. But she did not expressly release Dr. Drury from the consequences of his own negligence, which the jury found was a proximate cause of her death.
The Court distinguished between damages arising directly from negligent injury and the death-producing consequence of refusing blood. The form could be relevant to allocating the latter risk, but it did not extinguish the doctor’s negligence liability.
Issue #3
Whether express assumption of risk remained a defense after Washington adopted comparative negligence.
Holding
Yes. Express assumption of risk survived the former comparative-negligence statute because it is a form of consent or waiver, not contributory negligence.
Reasoning
The Court explained that its earlier discussion in Lyons v. Redding Construction Co. of assumption of risk’s diminished role under comparative negligence concerned unreasonable, contributory forms of assumption of risk. It did not eliminate every form of the doctrine.
Express assumption of risk occurs when a person expressly agrees in advance to take the chance of injury from a known risk created by what another person may do or fail to do. Because former RCW 4.22.010 addressed contributory negligence rather than waiver or consent, it did not abolish this defense.
Issue #4
Whether the evidence supported submitting express assumption of risk to the jury and allocating 75 percent of fault to the Shorters.
Holding
Yes. The evidence permitted the jury to find that the Shorters knowingly and voluntarily assumed the risk that Mrs. Shorter could die from blood loss if blood could not be administered.
Reasoning
Express assumption of risk requires actual, subjective knowledge and appreciation of the risk, followed by a voluntary choice to encounter it. The relevant question was whether the Shorters themselves understood the risk, not whether a reasonable patient would have understood it.
The Shorters did more than accept a generalized risk associated with surgery. They signed a form acknowledging possible adverse consequences from refusing blood, received preoperative warnings that bleeding from the D and C could be fatal without transfusion, and continued to refuse blood after physicians warned that Mrs. Shorter’s death was imminent.
The Court emphasized that the Shorters did not assume the direct consequences of Dr. Drury’s negligent surgical injury. They did, however, assume the distinct risk of death resulting from their refusal to permit transfusion even if the need for blood arose after a surgical mistake. That self-created risk could properly be allocated to them.
Issue #5
Whether submitting assumption of risk to the jury violated the Free Exercise Clause because the Shorters refused blood for religious reasons.
Holding
No. The Free Exercise Clause was not implicated because the case involved no state action or governmental interference with religious practice.
Reasoning
The constitutional prohibition on conditioning benefits upon conduct forbidden by religion requires state action. This case was a tort dispute between private parties, not governmental interference with the Shorters’ religious beliefs.
The jury’s consideration of the consequences of the Shorters’ refusal of blood therefore did not deny them a First Amendment right, and the trial court properly declined to instruct the jury that religiously motivated refusal could not reduce recovery.