D4

DIFFICULT DECISIONS

Review the following case study and address the questions that follow:

The plaintiff, Bonita Perkins, in Perkins v. Lavin, was a Jehovahs Witness. She gave birth to a baby at the defendants hospital. After going home, she began hemorrhaging and returned to the hospital. She specifically informed the defendants employees that she was not to be provided any blood or blood derivatives, and she signed a form to that effect:

I request that no blood or blood derivatives be administered to [plaintiff] during this hospitalization, notwithstanding that such treatment may be deemed necessary in the opinion of the attending physician or his assistants to preserve life or promote recovery. I release the attending physician, his assistants, the hospital, and its personnel from any responsibility for any untoward results due to my refusal to permit the use of blood or its derivatives.

Because of the plaintiffs condition, it became necessary to perform an emergency dilation and curettage. She continued to bleed, and her condition deteriorated dramatically. Her blood count dropped, necessitating administration of blood products as a lifesaving measure. Her husband, who was not a Jehovahs Witness, consented to a blood transfusion, which was administered. The plaintiff recovered and filed an action against the defendant for assault and battery. The plaintiffs claim as to assault and battery was sustained.

The plaintiff specifically informed the defendant that she would consider a blood transfusion as offensive contact. Although both parties noted that the plaintiffs husband provided his consent for the transfusion, the defendant had not argued that his consent was sufficient to overcome the plaintiffs direction that she was not to receive a transfusion. The plaintiff submitted sufficient evidence to the trial court to establish that there was, at least, a genuine issue as to whether the defendant intentionally invaded her right to be free from offensive contact. Because of the plaintiffs recognition that the defendant acted to save her life, a jury may find that she is entitled to only nominal damages.

Tasks:

1. Should the court be the ultimate decision maker when there is a dispute over whether a lifesaving measure should be administered to a nonconsenting patient? Explain.
2. Should a parent have the right to refuse a lifesaving treatment (e.g., transfusion) for a minor? Explain.