SUBJECT: DISMISSAL OF JEHOVAH WITNESSES BATTERY ACTION AGAINST DOCTOR FOR AUTHORIZING BLOOD TRANSFUSION.

CASE NAME: WERTH V. TAYLOR

CASE CITE: NO. 123785, MICHIGAN COURT OF APPEALS, JULY 8, 1991.

STATE: MICHIGAN

FACTS OF CASE: Approximately two months before Cindy Werth was to deliver twins, she pre-registered at Alpena General Hospital. In accord with the tenants of the Jehovah witness' faith, Werth signed a "refusal to permit blood transfusion" form. Her husband signed a second refusal form when Werth was admitted to the hospital to deliver the twins. After the delivery, Werth suffered extensive bleeding, and underwent a dilation and curettage procedure. When the bleeding still did not stop, the anesthesiologist, Dr. Michael Taylor, ordered that the transfusion be administered, although he knew of Werth's religious beliefs.

Werth, joined by her husband, then sued Dr. Taylor for battery. The Trial Court granted summary judgment for the defendant on the battery claim, finding that Werth had signed the forms indicating her refusal to accept transfusions at a time when she was contemplating routine elective surgery, rather than at the time her condition was life threatening. The Werths appealed.

The Appeals Court concluded that the records supported the Trial Court's findings, and that Werth had never stated that she did not want transfusions if they were necessary to save her life. The court held that, without contemporaneous refusal of treatment by a fully informed, competent adult patient, no action lies for battery, and summary disposition was proper.

CASE COMMENTARY:

The body of law regarding Jehovahs witnesses strongly supports the notion that medical practitioners may follow the patient's wishes to refrain from administering blood and blood products. The United States Supreme Court has supported the position that patient's have the right to refuse medical care. (See discussion of Cruzan above).

Each year we review cases that involve administration of blood products to a Jehovahs witness and claims for alleged assault and battery. Although there are cases of liability against physicians who provide blood products to Jehovahs witnesses, generally, judge and jury are lenient in trying to support the physician's position in these cases. Unless the refusal of care is timely and focused on the situation immediately at hand, the physician who administers blood is unlikely to be found liable.


SUBJECT: 15 YEAR OLD ORDERED TO UNDERGO DIAGNOSTIC SURGERY

CASE NAME: MATTER OF THOMAS B.

CASE CITE: 574 N.Y.S. 2D 659 (N.Y. FAM. CT., SEPTEMBER 23, 1991)

STATE: NEW YORK

FACTS OF CASE: A fifteen year old boy had x-rays showing an anterior mediastinal tumor. The patient's father had died of carcinoma of the lung four months earlier. Based largely on a strong phobia for needles, the patient refused to undergo diagnostic surgery. The mother asked the court for an order directing the child to submit to the surgery.

The court found that immediate medical attention was required. It ordered the hospital to treat the child, directed the sheriff's department to take him to the hospital, restraining him if necessary and supervising him while he was in the hospital.


SUBJECT: WIFE HAS NO RIGHT TO REFUSE CARE FOR HER HUSBAND.

CASE NAME: IN RE PETITION OF THE DEPARTMENT OF VETERANS AFFAIRS MEDICAL CENTER

CASE CITE: 749 F.SUPP. 495 (D.C.N.Y., AUGUST 16, 1990)

STATE: NEW YORK

FACTS OF CASE: A 78 year old male was a long term diabetic who was taken to the V.A. Hospital after collapsing on a public street. On admission the medical staff determined that the patient was suffering from dry gangrene in his right foot for more than one month. About five days later the medical staff determined he had developed wet gangrene in two toes on his right foot. The patient was semi-conscious and unable to communicate.

Attending physicians advised the patient's wife that amputation of his foot was necessary to improve his condition. She refused consent. His condition became grave, and he was admitted to the intensive care unit. He was put on a ventilator, a pulmonary artery catheter was inserted, a radial artery line opened, his stomach was decompressed, and broad spectrum antibiotics were administered.

His wife again refused to consent to surgery, and hospital officials sought a court order for permission to amputate the foot.

The Court found the patient's wife had an intense hostility towards the hospital medical staff. She was firmly convinced that her husband did not have wet gangrene. The patient's wife stated her husband had said several times that no amputation should be allowed.

The Court said her strongly held convictions impeded her objectivity to report the true state of her husband's intention that he would rather die than have an amputation. The court said it would opt for life in face of the certainty of the patient's death if the foot were not amputated.

CASE COMMENTARY:

In these days of advanced directives, it's a little unusual seeing a court not complying with a wife's wishes. It's important to note that the patient is the only individual with the right to consent to or refuse care. Without a state law, or advanced directive indicating otherwise, only the competent adult has the right to make medical decisions for him or herself. Although family members are typically consulted regarding medical decisions, and family wishes are often followed, the fact is that the physician is not required by law to follow the family's or relative's wishes. The right to consent or refuse care is a personal right belonging only to the individual.

A few states have passed health care surrogate laws which state that other individuals in the family have a right to consent to or refuse care on behalf of an incompetent family member. Thus, if the patient lacks decisional capacity and has a terminal condition, family members, in a particular predetermined order, have a right to make healthcare decisions. If New York had a Health Care Surrogate Act, the wife's refusal of care here would prevail without court action, unless the physicians challenged her decision because they felt she was not competent.

Many states now have 'Durable Power of Attorney for Healthcare' statutes. A patient with a durable power of attorney gives an agent the right to make medical decisions on his or her behalf. Typically, when a patient loses the ability to make health care decisions, the agent steps forward and makes decisions just as though the patient was making that decision. It is quite similar to the parent making a decision for a minor child.

The living will is a manifestation of a patient's own feelings about life saving procedures. When a living will is invoked to stop or refrain from initiating life sustaining treatment, it is based upon the patient's own will and intention.

Finally, where there is no advance directive or applicable health care surrogate law, the courts will often look for evidence of the patient's own feelings about resuscitation or medical management. Typically they will ask family members for their recollection of the patient's statements regarding particular aspects of medical management. In this case, the wife asserted that the husband had made such remarks, specifically about amputation. If the wife's story had been straightforward and coherent it is likely that the court would have allowed that evidence to sway its opinion. However, the Court felt that the patient's intentions in this situation were not clear, and thus opted for preserving life.


SUBJECT: COURT ORDERS JEHOVAH WITNESS TO RECEIVE BLOOD TRANSFUSIONS

CASE NAME: IN RE HUGHES

CASE CITE: NO. A-5360-90T2, NEW JERSEY SUPERIOR COURT, APPELLATE DIVISION, AUGUST 31, 1992

STATE: NEW JERSEY

FACTS OF CASE: On May 13, 1991, Alice Hughes, a Jehovahs Witness was admitted for an elective hysterectomy. Prior to the surgery she signed forms stating that she did not wish to receive any blood or blood products. She also advised her treating physician, Dr. Isadore Ances, of her convictions. Dr. Ances did not explore the depth of Mrs. Hughes religious convictions, and advised her that it was unlikely that transfusions would be needed. Nonetheless, during the surgery, complications arose, and Dr. Ances concluded that Mrs. Hughes would die unless transfusions were administered.

Because Mrs. Hughes was not conscious, Dr. Ances contacted Mr. Hughes, who was also a Jehovahs Witness, and obtained authorization to administer the transfusions. The hospital then initiated a court proceeding, seeking the appointment of a temporary guardian who would be authorized to consent to additional transfusions after the surgery.

After hearing testimony from Mr. Hughes and other members of the family, the Trial Court found that it was unclear whether Mrs. Hughes would have opposed transfusions if she knew they were necessary to save her life. Therefore the court appointed the hospital's risk manager to serve as a temporary guardian. Transfusions were administered and Mrs. Hughes recovered. She then appealed the order appointing a guardian.

The Appeals court affirmed, finding that the record supported the Trial court's conclusion that it was not clear that Mrs. Hughes would have chosen death over transfusions. In addition, where there is ambiguity, the court should opt for life saving procedures. The Appeals Court noted that when he believed his wife would die, Mr. Hughes authorized transfusions, and that he refused to answer the Trial Court's question whether he would authorize transfusions in another life threatening situation.

CASE COMMENTARY:

Reviewing this years Jehovahs Witness refusal of care cases, it appears that the courts feel that the immediate life threatening situation is a unique circumstance. The patient's typically sign special forms for refusal of blood products for elective surgeries. In an emergency, the Court allows flexibility in decision-making regarding a patient receiving blood products.

In the emergency department, there is little time for decision making, and the patient will not have had an opportunity to think through the particular medical situation. If the patient lacks decisional capacity, cannot communicate or is unconscious, it certainly seems safe to proceed with the administration of blood products as necessary. Even in the face of family members refusing blood products for the patient, without clear evidence from the individual patient herself, it seems prudent to proceed with the administration of blood products as necessary. It's also wise to notify counsel as soon as possible to begin administrative proceedings regarding further administration of blood products.