This post is about a medical negligence case from Pennsylvania (which came to my attention via Bill Madden’s ‘Medical + health law blog‘) . The decision in this case touches on an issue that is often discussed here. The issue is about a patient refusing consent to life saving treatment with the assertion that those called upon to assist will be sued if they don’t honour the patient’s wishes but if they do, and the patient dies, they will be sued by the family. The inference I draw from those concerns is that doctors, and paramedics, think or fear that not only will they be sued, but that they will be successfully sued, either way.
The fact that Seels v Hahnemann University Hospital and Others 2017 PA Super 227 ever made it to the Superior Court of Pennsylvania (and before that, a trial court) may confirm the first of those fears, ie that the attending doctors or paramedics might be sued either way. But the result however, may help ease the fear that they will be successfully sued.
Mrs Seels-Davila was a member of the Jehovah’s Witnesses faith and in accordance with her understanding of the doctrines of that faith she declined to receive human blood products. In September 2010 Mrs Seels-Davila was pregnant and chose to deliver her baby at the defendant hospital as they operated a ‘Bloodless medicine’ program. The critical issue for this program was making sure that patients were informed of the potential consequences of their choices and the various options available to them. The program was not a medical program in that there were no special procedures or techniques for those in the program – only that they were given the chance to express their wishes in an informed way.
Mrs Seels-Davilla was taken through the issues and confirmed her ‘request that no blood (whole blood, red cells, white cells, platelets and plasma) be administered to me during this hospitalization.’ The delivery was problematic and Mrs Seels-Davila became critically ill. Whilst still able to, she confirmed ‘I refuse all blood components and human source products.’ Her condition continued to deteriorate and doctors and nurses urged her to reconsider her position but she remained adamant. When she was no longer able to express her wishes both her father and her husband (who were both members of the faith) also refused to give permission for a transfusion even when it was apparent that without that treatment, she would die. The expert witness called for the family confirmed that a blood transfusion would probably have saved her life. But no transfusion was given, and she died.
Mrs Seels-Davila’s husband, Raymond Seels, sued the hospital. His claim was not that they should have ignored her, or his, wishes but that they were negligent in the way they treated his wife in terms of how the various procedures were carried out. In essence that there was negligence in the way a cesarean section was performed and post-operative bleeding was managed. The trial court found that there had been no negligence and found in favour of the defendant hospital. Mr Seels appealed to the Superior Court of Pennsylvania.
The relevance of her refusal
There were a number of issues raised on the appeal, but only one is relevant to readers of this blog. The issue was the relevance of her refusal of treatment. The appellant, Mr Seels, argued that all the consent documents should not have been put before the jury (and here, note, that a case like this would not be heard by a jury in Australia). The gist of the argument was that the case against the hospital was that they had been negligent, not that they had assaulted Mrs Seels-Davila or that her consent had not been properly informed. Mrs Seels-Davila did not consent to negligent surgical treatment so the issue of the terms of the consent was irrelevant.
The court noted that as a general rule ‘where a plaintiff “only asserts negligence, and not lack of informed consent, evidence that a patient agreed to go forward with the operation in spite of the risks of which she was informed is irrelevant and should be excluded.”’ But that is just a general rule; evidence of the terms of consent may be very relevant if it is alleged that the negligence was a failure to give proper information (as in the Australian case of Rogers v Whitaker (1992) 175 CLR 479) or in cases where the plaintiff has consented to experimental treatment or has expressly consented ‘to any particular risks associated with the unconventional or experimental treatment’. The Pennsylvania trial court:
… determined that the unique circumstances of this matter rendered Seels-Davila’s consent and release forms absolutely relevant and essential to the truth seeking function of a jury trial. It would have been manifestly unjust and improper to not allow them into evidence. Indeed, rather than allowing for misconceptions to arise about Seels-Davila “consenting” to substandard medical care at Hahnemann, the consents and releases made clear that Seels-Davila, of her own free will, consistently refused to accept safe, effective, routine, and lifesaving medical treatment when she barred her doctors from administering blood transfusions, and even refused to collect and store her own blood in the event an emergency arose. There was not a shred of doubt that Seels-Davila fully understood the lifethreatening ramifications of her decision to be a “bloodless” patient, and that she specifically agreed to hold the doctors harmless for any negative outcomes of her decision.
The Superior Court agreed with the trial judge’s reasoning.
The argument is compelling. Mrs Seels-Davila could have been easily saved. Witnesses for both the hospital and the family agreed that with a blood transfusion she would probably have survived. In the absence of the consent forms, a jury asked to consider what would a ‘reasonable’ doctor do when faced with a patient whose condition was deteriorating rapidly and where a transfusion would save her life would no doubt conclude that failure to administer the blood transfusion was a breach of the standard of care expected from a reasonable doctor or health facility. But the question of negligence has to be answered ‘in all the circumstances’ and in this case the circumstances included her informed and repeated refusal to accept a blood transfusion, confirmed by her family even when death was imminent.
On the one hand, this case confirms some worst fears. If the doctors had administered blood they may have saved her life but they would have failed to respect her autonomy and may well have been sued for battery (see for example Malette v Shulman  67 D.L.R. (4th) 321). Here they did honour her wishes and they were sued by the family, led by her husband who had, when asked ‘also declined to assent to the transfusion, saying that he did not want to go against his wife’s wishes or submit her to medical treatment that violated her religious beliefs.’
However, in Malette v Shulman the Canadian hospital lost when it gave blood that they knew the patient refused even though it saved her life. In this case, the Hahnemann University Hospital won – both at trial and on appeal. That result is another example that shows the courts are willing to recognise and give priority to a patient’s informed choices (in an Australian context see Hunter and New England Area Health Service v A  NSWSC 761 and Brightwater Care Group (Inc) v Rossiter  WASC 229 both discussed in my earlier post, CFA Emergency Medical Response Guidelines (March 8, 2017)).
Where a person has refused treatment, ultimately they and their family have to accept the consequences of that decision. Here, the jury found that there was no negligence in the way the surgery was performed or in the post-operative treatment. And further, the health practitioners did nothing wrong by watching Mrs Seels-Davila die when they knew they could save her but to do so would be to ignore or set aside her known, informed wishes and her genuine faith. Her refusal to accept blood transfusions was ‘relevant and essential’ to answering the question of whether or not she received reasonable care in all the circumstances.