Shorter v. Drury

695 P.2d 116 (1985)

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Nature of the Case

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Facts

Doreen was a Jehovah's Witness, as is P, her surviving husband. Jehovah's Witnesses are prohibited by their religious doctrine from receiving blood transfusions. Doreen became pregnant and consulted with D, a family practitioner. D diagnosed her with a 'missed abortion.' The fetus was dead and the uterus failed to discharge it. It is medically prudent to evacuate the uterus in order to guard against infection. To cleanse the uterus, D 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 that has a sharp-edged hoop on the end of it. The second, commonly used in 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. D chose to use curettes. With a D and C 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 curette method posed the highest degree of puncture-caused bleeding risk due to the sharpness of the instrument. No matter how the D and C is performed, there is always the possibility of blood loss. D advised Doreen there was a possibility of bleeding and perforation of the uterus. D did not discuss any alternate methods in which the D and C may be performed. P was aware that the D and C posed the possibility, albeit remote, of internal bleeding. Doreen sought a second opinion from Dr. Ott. Dr. Ott did not discuss with Doreen the particular method which should be used to perform it. He did, however, advise her that 'she could certainly bleed during the procedure.' Dr. Ott testified Doreen responded to his warning by saying 'she had faith in the Lord and that things would work out . . .' P and Doreen signed a waiver and release to the hospital, its personnel, and the attending physician from any responsibility whatever for unfavorable reactions or any untoward results due her refusal to permit the use of blood or its derivatives and that she fully understand the possible consequences of such refusal on my part. Doreen began to bleed internally and go into shock. D had severely lacerated her uterus. Doreen refuse to authorize a transfusion despite repeated warnings by the doctors she would likely die due to blood loss. P likewise refused. Doreen bled to death. P sued for wrongful death. The release was admitted into evidence. The jury found D negligent and damages were found to be $412,000. It found that P and Doreen had 'knowingly and voluntarily' assumed the risk of bleeding to death and attributed 75 percent of the fault for her death to her and P's refusal to authorize or accept a blood transfusion. P was awarded a judgment of $103,000. P appealed.