Shorter v. Drury

Decision Date11 January 1985
Docket NumberNo. 50601-9,50601-9
PartiesElmer E. SHORTER, as personal representative of the Estate of Doreen V. Shorter, deceased, Appellant, v. Robert E. DRURY, M.D. and Jane Doe Drury, his wife, Respondents.
CourtWashington Supreme Court

Davies, Roberts, Reid, Anderson & Wacker, Denny Anderson, Seattle, for appellant.

Williams, Lanza, Kastner & Gibbs, Mary H. Spillane, Seattle, for respondents.

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 the following form (underlining after heading indicates blanks in form which were completed in handwriting):

                                    GENERAL HOSPITAL OF EVERETT
                                REFUSAL TO PERMIT BLOOD TRANSFUSION
                                -----------------------------------
                Date November 30, 1979             Hour 6:15 a.m
                     -----------------                  ---------
                I request that no blood or blood derivatives be administered to
                Dorreen V. Shorter
                ------------------
                during this hospitalization.  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
                                       (/s/ Doreen Shorter)
                                      ----------------------
                                              Patient
                                        (/s/ Elmer Shorter)
                                      ----------------------
                                     Patient's Husband or Wife
                

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 ( McCutcheon v. United Homes Corp., 79 Wash.2d 443, 486 P.2d 1093 (1971)), the refusal does not address the negligence of Dr. Drury. This being so it cannot be considered as a release from liability for negligence. Cf. Hewitt v. Miller, 11 Wash.App. 72, 521 P.2d 244 (1974). Whether a release which specifically absolved Dr. Drury from his negligence would have been valid or against public policy need not be decided and we reserve any comment on that issue. See Blide v. Rainier Mountaineering, Inc., 30 Wash.App. 571, 573-74, 636 P.2d 492 (1981); Tunkl v. Regents of Univ. of Cal., 60 Cal.2d 92, 383 P.2d 441, 32 Cal.Rptr. 33 (1963); Annot., Validity and Construction of Contract Exempting Hospital or Doctor from Liability for Negligence to Patient, 6 A.L.R.3d 704, 705 (1966 and Supp.1984).

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. It is a specific request that no blood or blood derivatives be administered to Mrs. Shorter. The attending physician is released from "any responsibility whatever for unfavorable reactions or any...

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