Malette v. Shulman et al.

72 O.R. (2d) 417

ONTARIO
Court of Appeal
Robins, Catzman and Carthy JJ.A. APPEAL by defendant physician and CROSS-APPEAL by plaintiff from a judgment of Donelly J., 63 O.R. (2d) 243, 47 D.L.R. (4th) 18, 43 C.C.L.T. 62, awarding the plaintiff damages against the physician for battery and dismissing the action against the hospital.

The judgment of the court was delivered by ROBINS J.A.: The question to be decided in this appeal is whether a doctor is liable in law for administering blood transfusions to an unconscious patient in a potentially life-threatening situation when the patient is carrying a card stating that she is a Jehovah's Witness and, as a matter of religious belief, rejects blood transfusions under any circumstances.I In the early afternoon of June 30, 1979, Mrs. Georgette Malette, then age 57, was rushed, unconscious, by ambulance to the Kirkland and District Hospital in Kirkland Lake, Ontario. She had been in an accident. The car in which she was a passenger, driven by her husband, had collided head-on with a truck. Her husband had been killed. She suffered serious injuries. On arrival at the hospital, she was attended by Dr. David L. Shulman, a family physician practising in Kirkland Lake who served two or three shifts a week in the emergency department of the hospital and who was on duty at the time. Dr. Shulman's initial examination of Mrs. Malette showed, among other things, that she had severe head and face injuries and was bleeding profusely. The doctor concluded that she was suffering from incipient shock by reason of blood loss, and ordered that she be given intravenous glucose followed immediately by Ringer's Lactate. The administration of a volume expander, such as Ringer's Lactate, is standard medical procedure in cases of this nature. If the patient does not respond with significantly increased blood pressure, transfusions of blood are then administered to carry essential oxygen to tissues and to remove waste products and prevent damage to vital organs. At about this time, a nurse discovered a card in Mrs. Malette's purse which identified her as a Jehovah's Witness and in which she requested, on the basis of her religious convictions, that she be given no blood transfusions under any circumstances. The card, which was not dated or witnessed, was printed in French and signed by Mrs. Malette. Translated into English, it read:
NO BLOOD TRANSFUSION!

|As one of Jehovah's Witnesses with firm religious convictions, I request that no blood or blood products be administered to me under any circumstances. I fully realize the implications of this position, but I have resolutely decided to obey the Bible command: "Keep abstaining ... from blood." (Acts 15:28, 29). However, I have no religious objection to use the nonblood alternatives, such as Dextran, Haemaccel, PVP, Ringer's Lactate or saline solution.||
Dr. Shulman was promptly advised of the existence of this card and its contents. Mrs. Malette was next examined by a surgeon on duty in the hospital. He concluded, as had Dr. Shulman, that, to avoid irreversible shock, it was vital to maintain her blood volume. He had Mrs. Malette transferred to the X-ray department for X-rays of her skull, pelvis and chest. However, before the X-rays could be satisfactorily completed, Mrs. Malette's condition deteriorated. Her blood pressure dropped markedly, her respiration became increasingly distressed, and her level of consciousness dropped. She continued to bleed profusely and could be said to be critically ill. At this stage, Dr. Shulman decided that Mrs. Malette's condition had deteriorated to the point that transfusions were necessary to replace her lost blood and to preserve her life and health. Having made that decision, he personally administered transfusions to her, in spite of the Jehovah's Witness card, while she was in the X-ray department and after she was transferred to the intensive care unit. Dr. Shulman was clearly aware of the religious objection to blood manifested in the card carried by Mrs. Malette and the instruction that "NO BLOOD TRANSFUSION!" be given under any circumstances. He accepted full responsibility then, as he does now, for the decision to administer the transfusions. Some three hours after the transfusions were commenced, Mrs. Malette's daughter, Celine Bisson, who had driven to Kirkland Lake from Timmins, arrived at the hospital accompanied by her husband and a local church elder. She strongly objected to her mother being given blood. She informed Dr. Shulman and some of the other defendants that both she and her mother were Jehovah's Witnesses, that a tenet of their faith forbids blood transfusions, and that she knew her mother would not want blood transfusions. Notwithstanding Dr. Shulman's opinion as to the medical necessity of the transfusions, Mrs. Bisson remained adamantly opposed to them. She signed a document specifically prohibiting blood transfusions and a release of liability. Dr. Shulman refused to follow her instructions. Since the blood transfusions were, in his judgment, medically necessary in this potentially life-threatening situation, he believed it his professional responsibility as the doctor in charge to ensure that his patient received the transfusions. Furthermore, he was not satisfied that the card signed by Mrs. Malette expressed her current instructions because, on the information he then had, he did not know whether she might have changed her religious beliefs before the accident; whether the card may have been signed because of family or peer pressure; whether at the time she signed the card she was fully informed of the risks of refusal of blood transfusions; or whether, if conscious, she might have changed her mind in the face of medical advice as to her perhaps imminent but avoidable death. As matters developed, by about midnight Mrs. Malette's condition had stabilized sufficiently to permit her to be transferred early the next morning by air ambulance to Toronto General Hospital where she received no further blood transfusions. She was discharged on August 11, 1979. Happily, she made a very good recovery from her injuries.
II
In June, 1980, Mrs. Malette brought this action against Dr. Shulman, the hospital, its executive director and four nurses, alleging, in the main, that the administration of blood transfusions in the circumstances of her case constituted negligence and assault and battery and subjected her to religious discrimination....
III
What then is the legal effect, if any, of the Jehovah's Witness card carried by Mrs. Malette? Was the doctor bound to honour the instructions of his unconscious patient or, given the emergency and his inability to obtain conscious instructions from his patient, was he entitled to disregard the card and act according to his best medical judgment? To answer these questions and determine the effect to be given to the Jehovah's Witness card, it is first necessary to ascertain what rights a competent patient has to accept or reject medical treatment and to appreciate the nature and extent of those rights. The right of a person to control his or her own body is a concept that has long been recognized at common law. The tort of battery has traditionally protected the interest in bodily security from unwanted physical interference. Basically, any intentional nonconsensual touching which is harmful or offensive to a person's reasonable sense of dignity is actionable. Of course, a person may choose to waive this protection and consent to the intentional invasion of this interest, in which case an action for battery will not be maintainable. No special exceptions are made for medical care, other than in emergency situations, and the general rules governing actions for battery are applicable to the doctor-patient relationship. Thus, as a matter of common law, a medical intervention in which a doctor touches the body of a patient would constitute a battery if the patient did not consent to the intervention. Patients have the decisive role in the medical decision-making process. Their right of self-determination is recognized and protected by the law. As Justice Cardozo proclaimed in his classic statement: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages": Schloendoff v. Society of New York Hospital, 211 N.Y. 125 (1914). See also, Videto v. Kennedy (1981), 33 O.R. (2d) 497, 125 D.L.R. (3d) 127, 17 C.C.L.T. 307 (C.A.); Linden, Canadian Tort Law, 4th ed. (1988), at pp. 40-3 and p. 59 et seq.; Prosser & Keeton, The Law of Torts, 5th ed. (1984), at pp. 39-42; and Fleming, The Law of Torts, 7th ed. (1987), at pp. 23-4. The doctrine of informed consent has developed in the law as the primary means of protecting a patient's right to control his or her medical treatment. Under the doctrine, no medical procedure may be undertaken without the patient's consent obtained after the patient has been provided with sufficient information to evaluate the risks and benefits of the proposed treatment and other available options. The doctrine presupposes the patient's capacity to make a subjective treatment decision based on her understanding of the necessary medical facts provided by the doctor and on her assessment of her own personal circumstances. A doctor who performs a medical procedure without having first furnished the patient with the information needed to obtain an informed consent will have infringed the patient's right to control the course of her medical care, and will be liable in battery even though the procedure was performed with a high degree of skill and actually benefited the patient. The right of self-determination which underlies the doctrine of informed consent also obviously encompasses the right to refuse medical treatment. A competent adult is generally entitled to reject a specific treatment or all treatment, or to select an alternate form of treatment, even if the decision may entail risks as serious as death and may appear mistaken in the eyes of the medical profession or of the community. Regardless of the doctor's opinion, it is the patient who has the final say on whether to undergo the treatment. The patient is free to decide, for instance, not to be operated on or not to undergo therapy or, by the same token, not to have a blood transfusion. If a doctor were to proceed in the face of a decision to reject the treatment, he would be civilly liable for his unauthorized conduct notwithstanding his justifiable belief that what he did was necessary to preserve the patient's life or health. The doctrine of informed consent is plainly intended to ensure the freedom of individuals to make choices concerning their medical care. For this freedom to be meaningful, people must have the right to make choices that accord with their own values regardless of how unwise or foolish those choices may appear to others: see generally, Prosser & Keeton, op.cit., p. 112 et seq.; Harper, James & Gray, The Law of Torts, 2nd ed. (1986), c. III; Linden, op.cit., p. 64 et seq.; and Reibl v. Hughes (1980), 114 D.L.R. (3d) 1, [1980] 2 S.C.R. 880, 14 C.C.L.T. 1.
IV
The emergency situation is an exception to the general rule requiring a patient's prior consent. When immediate medical treatment is necessary to save the life or preserve the health of a person who, by reason of unconsciousness or extreme illness, is incapable of either giving or withholding consent, the doctor may proceed without the patient's consent. The delivery of medical services is rendered lawful in such circumstances either on the rationale that the doctor has implied consent from the patient to give emergency aid or, more accurately in my view, on the rationale that the doctor is privileged by reason of necessity in giving the aid and is not to be held liable for so doing. On either basis, in an emergency the law sets aside the requirement of consent on the assumption that the patient, as a reasonable person, would want emergency aid to be rendered if she were capable of giving instructions. As Prosser & Keeton, op.cit., at pp. 117-18 state:
| The touching of another that would ordinarily be a battery in the absence of the consent of either the person touched or his legal agent can sometimes be justified in an emergency. Thus, it has often been asserted that a physician or other provider of health care has implied consent to deliver medical services, including surgical procedures, to a patient in an emergency. But such lawful action is more satisfactorily explained as a privilege. There are several requirements: (a) the patient must be unconscious or without capacity to make a decision, while no one legally authorized to act as agent for the patient is available; (b) time must be of the essence, in the sense that it must reasonably appear that delay until such time as an effective consent could be obtained would subject the patient to a risk of a serious bodily injury or death which prompt action would avoid; and (3) under the circumstances, a reasonable person would consent, and the probabilities are that the patient, would consent.|| See also Marshall v. Curry, [1933] 3 D.L.R. 260, 60 C.C.C. 136 (N.S.S.C.); Parmley v. Parmley, [1945] 4 D.L.R. 81, [1945] S.C.R. 635; Mulloy v. Hop Sang, [1935] 1 W.W.R. 714 (Alta. C.A.); Picard, Legal Liability of Doctors and Hospitals in Canada, 2nd ed. (1985), at p. 45; Restatement of the Law of Torts, Second, s. 892 D (1979); and s. 25 of O. Reg. 518/88 under the Public Hospitals Act, R.S.O. 1980, c. 410. On the facts of the present case, Dr. Shulman was clearly faced with an emergency. He had an unconscious, critically ill patient on his hands who, in his opinion, needed blood transfusions to save her life or preserve her health. If there were no Jehovah's Witness card he undoubtedly would have been entitled to administer blood transfusions as part of the emergency treatment and could not have been held liable for so doing. In those circumstances he would have had no indication that the transfusions would have been refused had the patient then been able to make her wishes known and, accordingly, no reason to expect that, as a reasonable person, she would not consent to the transfusions. However, to change the facts, if Mrs. Malette, before passing into unconsciousness, had expressly instructed Dr. Shulman, in terms comparable to those set forth on the card, that her religious convictions as a Jehovah's Witness were such that she was not to be given a blood transfusion under any circumstances and that she fully realized the implications of this position, the doctor would have been confronted with an obviously different situation. Here, the patient, anticipating an emergency in which she might be unable to make decisions about her health care contemporaneous with the emergency, has given explicit instructions that blood transfusions constitute an unacceptable medical intervention and are not to be administered to her. Once the emergency arises, is the doctor none the less entitled to administer transfusions on the basis of his honest belief that they are needed to save his patient's life? The answer, in my opinion, is clearly no. A doctor is not free to disregard a patient's advance instructions any more than he would be free to disregard instructions given at the time of the emergency. The law does not prohibit a patient from withholding consent to emergency medical treatment, nor does the law prohibit a doctor from following his patient's instructions. While the law may disregard the absence of consent in limited emergency circumstances, it otherwise supports the right of competent adults to make decisions concerning their own health care by imposing civil liability on those who perform medical treatment without consent. The patient's decision to refuse blood in the situation I have posed was made prior to and in anticipation of the emergency. While the doctor would have had the opportunity to dissuade her on the basis of his medical advice, her refusal to accept his advice or her unwillingness to discuss or consider the subject would not relieve him of his obligation to follow her instructions. The principles of self-determination and individual autonomy compel the conclusion that the patient may reject blood transfusions even if harmful consequences may result and even if the decision is generally regarded as foolhardy. Her decision in this instance would be operative after she lapsed into unconsciousness, and the doctor's conduct would be unauthorized. To transfuse a Jehovah's Witness in the face of her explicit instructions to the contrary would, in my opinion, violate her right to control her own body and show disrespect for the religious values by which she has chosen to live her life: see In re Estate of Brooks, 205 N.E. 2d 435 (1965, Ill.); and Randolph v. City of New York an unreported judgment of the Supreme Court of New York released July 12, 1984, Index No. 17598/75; reversed 501 N.Y.S. 2d 837 (1986); varied 514 N.Y.S. 2d 705 (1987).
V
The distinguishing feature of the present case -- and the one that makes this a case of first impression -- is, of course, the Jehovah's Witness card on the person of the unconscious patient. What then is the effect of the Jehovah's Witness card?... In the appellant's submission, the card is of no effect and, as a consequence, can play no role in determining the doctor's duty toward his patient in the emergency situation existing in this case. The trial judge, the appellant argues, erred in holding both that the Jehovah's Witness card validly restricted the doctor's right to administer the blood transfusions, and that there was no rationally founded basis for ignoring the card. The argument proceeds on the basis, first, that, as a matter of principle, a card of this nature could not operate in these circumstances to prohibit the doctor from providing emergency health care and, second, that in any event, as a matter of evidence, there was good reason to doubt the card's validity. The appellant acknowledges that a conscious rational patient is entitled to refuse any medical treatment and that a doctor must comply with that refusal no matter how ill-advised he may believe it to be. He contends, however, to quote from his factum, that "a patient refusing treatment regarded by a doctor as being medically necessary has a right to be advised by the doctor, and the doctor has a concomitant duty to advise the patient of the risks associated with that refusal". Here, because of the patient's unconsciousness, the doctor had no opportunity to advise her of the specific risks involved in refusing the blood transfusions that he regarded as medically necessary. In those circumstances, the appellant argues, it was not possible for the doctor to obtain, or for the patient to give, an "informed refusal". In the absence of such a refusal, the argument proceeds, Dr. Shulman was under a legal and ethical duty to treat this patient as he would any other emergency case and provide the treatment that, in his medical judgment, was needed to preserve her health and life. In short, the argument concludes, Mrs. Malette's religiously motivated instructions, prepared in contemplation of an emergency, directing that she not be given blood transfusions in any circumstances, were of no force or effect and could be ignored with impunity. In challenging the trial judge's finding that there was no rationally founded evidentiary basis for doubting the validity of the card and ignoring the restriction contained in it, the appellant puts forth a number of questions which he claims compel the conclusion that he was under no duty to comply with these instructions. He argues that it could properly be doubted whether the card constituted a valid statement of Mrs. Malette's wishes in this emergency because it was unknown, for instance, whether she knew the card was still in her purse; whether she was still a Jehovah's Witness or how devout a Jehovah's Witness she was; what information she had about the risks associated with the refusal of blood transfusion when she signed the card; or whether, if she were conscious, she would refuse blood transfusions after the doctor had an opportunity to advise her of the risks associated with the refusal. With deference to Mr. Royce's exceedingly able argument on behalf of the appellant, I am unable to accept the conclusions advocated by him. I do not agree, as his argument would have it, that the Jehovah's Witness card can be no more than a meaningless piece of paper. I share the trial judge's view that, in the circumstances of this case, the instructions in the Jehovah's Witness card imposed a valid restriction on the emergency treatment that could be provided to Mrs. Malette and precluded blood transfusions. I should emphasize that in deciding this case the court is not called upon to consider the law that may be applicable to the many situations in which objection may be taken to the use or continued use of medical treatment to save or prolong a patient's life. The court's role, especially in a matter as sensitive as this, is limited to resolving the issues raised by the facts presented in this particular case. On these facts, we are not concerned with a patient who has been diagnosed as terminally or incurably ill who seeks by way of advance directive or "living will" to reject medical treatment so that she may die with dignity; neither are we concerned with a patient in an irreversible vegetative state whose family seeks to withdraw medical treatment in order to end her life; nor is this a case in which an otherwise healthy patient wishes for some reason or other to terminate her life. There is no element of suicide or euthanasia in this case. Our concern here is with a patient who has chosen in the only way possible to notify doctors and other providers of health care, should she be unconscious or otherwise unable to convey her wishes, that she does not consent to blood transfusions. Her written statement is plainly intended to express her wishes when she is unable to speak for herself. There is no suggestion that she wished to die. Her rejection of blood transfusions is based on the firm belief held by Jehovah's Witnesses, founded on their interpretation of the Scriptures, that the acceptance of blood will result in a forfeiture of their opportunity for resurrection and eternal salvation. The card evidences that "as one of Jehovah's Witnesses with firm religious convictions" Mrs. Malette is not to be administered blood transfusions "under any circumstances"; that, while she "fully realize[s] the implications of this position", she has "resolutely decided to obey the Bible command"; and that she has no religious objection to "nonblood alternatives". In signing and carrying this card Mrs. Malette has made manifest her determination to abide by this fundamental tenet of her faith and refuse blood regardless of the consequences. If her refusal involves a risk of death, then, according to her belief, her death would be necessary to ensure her spiritual life.
...
In sum, it is my view that the principal interest asserted by Mrs. Malette in this case -- the interest in the freedom to reject, or refuse to consent to, intrusions of her bodily integrity -- outweighs the interest of the state in the preservation of life and health and the protection of the integrity of the medical profession. While the right to decline medical treatment is not absolute or unqualified, those state interests are not in themselves sufficiently compelling to justify forcing a patient to submit to nonconsensual invasions of her person. The interest of the state in protecting innocent third parties and preventing suicide are, I might note, not applicable to the present circumstances.
...
Accordingly, I am of the view that the card had the effect of validly restricting the treatment that could be provided to Mrs. Malette and constituted the doctor's administration of the transfusions a battery. ... Finally, the appellant appeals the quantum of damages awarded by the trial judge. In his submission, given the findings as to the competence of the treatment, the favourable results, the doctor's overall exemplary conduct and his good faith in the matter, the battery was technical and the general damages should be no more than nominal. While the submission is not without force, damages of $20,000 cannot be said to be beyond the range of damages appropriate to a tortious interference of this nature. The trial judge found that Mrs. Malette suffered mentally and emotionally by reason of the battery.