Shorter v. Drury
695 P.2d 116, 103 Wash. 2d 645 (1985)
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Rule of Law:
A patient who signs a specific refusal for a medical treatment, such as a blood transfusion, may be found to have expressly assumed the risk for the consequences of that refusal, even if the need for the treatment arises from a physician's negligence. This assumption of risk can be used to apportion fault and reduce the plaintiff's recoverable damages in a wrongful death action.
Facts:
- Doreen Shorter, a Jehovah's Witness whose faith prohibits blood transfusions, was diagnosed with a 'missed abortion' by Dr. Robert E. Drury.
- Dr. Drury recommended a dilation and curettage (D and C) procedure and chose to use a curette, the method with the highest risk of uterine perforation.
- Dr. Drury advised the Shorters of the general risk of bleeding, but did not discuss alternative, potentially safer methods for the procedure.
- Before the operation, the Shorters consulted a second doctor who also warned them of the risk of bleeding and the potential for death if a transfusion was refused.
- On the morning of the procedure, both Doreen and Elmer Shorter signed a 'Refusal To Permit Blood Transfusion' form, releasing the hospital and physician from responsibility for 'any untoward results due to my refusal to permit the use of blood'.
- During the D and C, Dr. Drury negligently lacerated Mrs. Shorter's uterus, causing severe internal bleeding.
- Despite the life-threatening blood loss and repeated pleas from doctors, both Mrs. Shorter, while coherent, and Mr. Shorter refused to consent to a blood transfusion.
- Doreen Shorter subsequently bled to death, an outcome which medical experts for both parties agreed a transfusion would have, in substantial probability, prevented.
Procedural Posture:
- Elmer Shorter, as personal representative, sued Dr. Robert E. Drury for wrongful death medical malpractice in a state trial court.
- A jury found Dr. Drury negligent and determined total damages to be $412,000.
- The jury also found that the Shorters knowingly and voluntarily assumed the risk of death by refusing the blood transfusion, attributing 75 percent of the fault to them.
- The trial court entered a judgment in favor of Elmer Shorter for $103,000 (25 percent of the total damages).
- Both parties moved for judgment notwithstanding the verdict, and the trial court denied both motions.
- Elmer Shorter (plaintiff-appellant) appealed the reduction of damages, and Dr. Drury (defendant-appellee) cross-appealed, arguing the release was a complete bar. The Court of Appeals certified the case to the Supreme Court of Washington.
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Issue:
Does a patient's signed refusal of a blood transfusion, based on religious beliefs, constitute an express assumption of the risk of death that can be used to reduce damages in a wrongful death action when the need for the transfusion was caused by the physician's negligence?
Opinions:
Majority - Dolliver, J.
Yes, a patient's signed refusal of a blood transfusion constitutes an express assumption of the risk of death for which damages can be proportionately reduced. The refusal form did not release Dr. Drury from liability for his negligence in performing the surgery, but it did operate as an express assumption by the Shorters of the specific risk of death resulting from the refusal to accept blood, regardless of the cause of the bleeding. The doctrine of express assumption of risk survived Washington's adoption of comparative negligence, as it is a form of consent or waiver rather than a form of contributory negligence. While the Shorters did not assume the risk of the negligent act itself, they did assume the risk of the consequences flowing from their refusal of the corrective treatment. This allocation of risk does not violate the First Amendment's free exercise clause, as the dispute is between private parties and involves no state action.
Dissenting - Pearson, J.
No, a patient's refusal of a blood transfusion does not constitute an assumption of the risk of death when the need for the transfusion arises from a doctor's unforeseeable negligence. The majority's holding improperly allows a negligent doctor to be substantially excused from liability. The Shorters only assumed the risk of bleeding inherent in a non-negligently performed procedure, not the additional, magnified risk created by the doctor's malpractice. An express assumption of risk requires knowledge and appreciation of the specific hazard and its magnitude, which the Shorters lacked; they were unaware of the heightened danger posed by the doctor's chosen method and could not have foreseen the specific hazard of a negligent perforation. Therefore, the question of assumption of risk should not have been submitted to the jury, and the full damage award should be reinstated.
Analysis:
This decision establishes a critical precedent for balancing patient autonomy and religious freedom against medical malpractice liability. It bifurcates liability, holding the physician responsible for the initial negligent act but holding the patient responsible for the foreseeable consequences of refusing life-saving treatment. The case solidifies the principle that a patient's express refusal of care can lead to a significant reduction in damages under a comparative fault framework. This ruling impacts how medical providers manage care for patients with religious objections, validating the use of specific release forms to allocate the risks of refusing treatment.
