Harvey v. Strickland

• Decision Date: 01 July 2002
• Docket Number: No. 25491.,25491.
• Citation: 566 S.E.2d 529,350 S.C. 303
• Court: South Carolina Supreme Court
• Parties: Charles HARVEY, Appellant, v. Dr. Glen STRICKLAND and Surgical Associates of South Carolina, Respondents.

350 S.C. 303

566 S.E.2d 529

Charles HARVEY, Appellant, v. Dr. Glen STRICKLAND and Surgical Associates of South Carolina, Respondents.

No. 25491.

Supreme Court of South Carolina.

Heard April 2, 2002.

Decided July 1, 2002.

Calvin A. Rouse, of Augusta, Georgia, for appellant.

Charles E. Carpenter, Jr., George C. Beighley, and S. Elizabeth Brosnan, all of Richardson, Plowden, Carpenter, and Robinson, of Columbia, for respondents.

WALLER, Justice:

Appellant, Charles Harvey, instituted this action against respondents, Dr. Glen Strickland and Surgical Associates (hereinafter Dr. Strickland), alleging breach of contract, lack of informed consent, medical malpractice, and medical battery. Harvey is a Jehovah's Witness; his claims stem from Harvey's receipt of unwanted blood transfusions two days after elective carotid artery surgery. The trial court granted directed verdicts for respondents on all four causes of action. We reverse.

FACTS

In November 1996, diagnostic testing revealed a blockage in Harvey's carotid artery. Dr. Strickland recommended a carotid endarterectomy. On November 4, 1996, in anticipation of surgery, Harvey signed written forms entitled "Refusal of Treatment/Release from Liability" and "Consent to Operation." The documents indicate that he refused to have blood or blood products given to him, and that he fully understood the attendant risks. They state that "in all probability, my refusal for such treatment, medical intervention, and/or procedure (may)(will) seriously imperil my health or life." The release relieves the attending physician, Lexington Medical Center, and its agents and employees from any and all claims of whatsoever kind or nature. Hospital forms list Harvey's mother, Julia, as his emergency contact. On January 14, 1997, the day before his surgery, Harvey signed another consent to operation form indicating that he did "not give permission to the doctor to use blood or blood products if necessary." However, Dr. Strickland testified that although he knew Harvey was a Jehovah's Witness, Harvey had told him he would consider a blood transfusion

Harvey's surgery was performed January 15, 1997. Although the surgery initially appeared to have gone well, Harvey developed a blood clot and had a stroke while in the recovery room. Because Harvey was unconscious, hospital personnel located his mother in the waiting room and obtained her permission to perform a CT scan and an arteriogram. A second surgery was performed and more blood clots were removed along the side of the carotid artery. Harvey was moved to the intensive care unit (ICU). He was intubated that evening by the on-call emergency room physician after the ICU nurse discovered Harvey was having trouble breathing, and his blood pressure was 200/110. The next day, Harvey began bleeding from the surgical site at his neck; he had lost approximately 30% of his blood volume, and his heart rate was extremely high. Dr. Strickland was concerned that if they could not get the heart rate down, Harvey would have a heart attack and die. When his hemoglobin level reached 8, Dr. Strickland recommended a blood transfusion to Harvey's mother, Julia, who initially declined due to her son's faith as a Jehovah's Witness. Ultimately, Julia consented to giving Harvey two units of packed red blood cells. Harvey recovered fully from the procedures.

Harvey instituted this suit in July 1998 alleging medical malpractice, medical battery, breach of express contract, and lack of informed consent.¹ The trial court directed a verdict for Dr. Strickland on the breach of contract claim at the close of Harvey's case; the court directed a verdict for Dr. Strickland on the lack of informed consent claim at the close of the defense's presentation of evidence.

The medical malpractice and medical battery claims were submitted to the jury. After four hours of deliberations, the jury sent out a note indicating it could not agree. The jury was excused for the day, but brought back the next morning for further deliberations after an Allen charge. After the jury was sent out in the morning, counsel for Harvey requested if there was some way, in the event of a mistrial, for the court to get "all these thorny issues" before an appellate court without re-trying the case. During this discussion, the jury again returned, indicating it could not agree. The court then granted Dr. Strickland a directed verdict on the malpractice and battery claims and dismissed the jury.² Harvey appeals.

ISSUES

1. Did the trial court err in granting a directed verdict on Harvey's claims?

2. Did the trial court err in denying Harvey's motion to amend his complaint?

3. Did the trial court improperly exclude testimony of a hospital liaison worker?

1. DIRECTED VERDICT

Harvey contends the trial court erred in granting a directed verdict on his claims. We agree.

In ruling on a motion for directed verdict, the trial court is required to view the evidence and the inferences which reasonably can be drawn therefrom in the light most favorable to the party opposing the motion and to deny the motion where either the evidence yields more than one inference or its inference is in doubt. Strange v. South Carolina Dep't of Highways & Pub. Transp., 314 S.C. 427, 429-30, 445 S.E.2d 439, 440 (1994). When considering directed verdict motions, neither the trial court nor the appellate court has authority to decide credibility issues or to resolve conflicts in the testimony or evidence. Creech v. South Carolina Wildlife and Marine Resources Dep't, 328 S.C. 24, 491 S.E.2d 571 (1997). "In essence, we must determine whether a verdict for a party opposing the motion would be reasonably possible under the facts as liberally construed in his favor." Bultman v. Barber, 277 S.C. 5, 7, 281 S.E.2d 791, 792 (1981). "If the evidence is susceptible to more than one reasonable inference, the case should be submitted to the jury." Quesinberry v. Rouppasong, 331 S.C. 589, 594, 503 S.E.2d 717, 720 (1998).

a. Implied Consent

Citing Hook v. Rothstein, 281 S.C. 541, 316 S.E.2d 690 (Ct.App.), cert denied 283 S.C. 64, 320 S.E.2d 35 (1984), Dr. Strickland contends the subsequent unplanned emergency required he seek the consent of Harvey's mother for further treatments. Accordingly, as he sought and obtained Harvey's mother's consent to the blood transfusion, he contends he cannot be held liable as a matter of law. We disagree.

In Hook, the Court of Appeals first recognized that the doctrine of implied consent applies to physicians in South Carolina. Under that doctrine, a physician has a duty to disclose to a patient the diagnosis, risks, benefits, alternatives, etc., of any procedures the doctor proposes to perform. Hook, however, indicates such information is to be given to "a patient of sound mind, in the absence of an emergency which warrants immediate medical treatment." 281 S.C. at 547-48, 316 S.E.2d at 694-95. Accordingly, as Harvey was unconscious, and an emergency situation presented, Dr. Strickland asserts he was obligated to seek his mother's consent to the blood transfusion. We disagree.

The right to be free of unwanted medical treatment has long been recognized in this country. More than one-hundred years ago, in Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 35 L.Ed. 734 (1891), the United States Supreme Court perceived that "no right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person." In Schloendorff v. New York Hosp., 211 N.Y. 125, 105 N.E. 92, 93 (1914), Justice Cardozo stated, "every human being of adult years and sound mind has a right to determine what shall be done with his own body...." More recently, it has been noted that "the individual's right to make decisions vitally affecting his private life according to his own conscience ... is difficult to overstate ... because it is, without exaggeration, the very bedrock on which this country was founded." Wons v. Public Health Trust, 500 So.2d 679, 687 (Fla.Dist.Ct.App.1987),affd541 So.2d 96 (Fla.1989). The right to control the integrity of one's own body spawned the doctrine of informed consent. In re Duran, 769 A.2d 497 (Pa.Super.2001). Accordingly, the United States Supreme Court has held that a competent adult patient has the right to decline any and all forms of medical intervention, including lifesaving or life-prolonging treatment. Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990).

Our General Assembly has recognized this right to be free of unwanted medical intrusion in the South Carolina Adult Health Care Consent Act (Consent Act), S.C.Code Ann. § 44-66-10 et seq. (Supp.2001). Section 44-66-60 of the Consent Act states, in pertinent part:

(A) Unless the patient, while able to consent, has stated a contrary intent to the attending physician or other health care professional responsible for the care of the patient, this chapter does not authorize the provision of health care to a patient who is unable to consent if the attending physician or other health care professional responsible for the care of the patient has actual knowledge that the health care is contrary to the religious beliefs of the patient.

(B) This chapter does not authorize the provision of health care to a patient who is unable to consent if the attending physician or other health care professional responsible for the care of the patient has actual knowledge that the health care is contrary to the patient's unambiguous and uncontradicted instructions expressed at a time when the patient was able to consent.

(Emphasis supplied). Clearly, these sections reveal a legislative intent that a patient's wishes against medical treatment or intervention, when made known to a physician prior to surgery, must be followed by the attending physician.

Here, Harvey signed numerous forms indicating he was a Jehovah's...