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Harvey v. Strickland (566 S.E.2d 529) 2002
Supreme Court of South Carolina
In November 1996, diagnostic testing revealed a blockage in Harvey's carotid artery. Dr. Strickland recommended a carotid endarterectomy. On November 4, 1996, in anticipation of surgery, Harvey signed written forms entitled "Refusal of Treatment/Release from Liability" and "Consent to Operation." The documents indicate that he refused to have blood or blood products given to him, and that he fully understood the attendant risks. They state that "in all probability, my refusal for such treatment, medical intervention, and/or procedure (may)(will) seriously imperil my health or life." The release relieves the attending physician, Lexington Medical Center, and its agents and employees from any and all claims of whatsoever kind or nature. Hospital forms list Harvey's mother, Julia, as his emergency contact. On January 14, 1997, the day before his surgery, Harvey signed another consent to operation form indicating that he did "not give permission to the doctor to use blood or blood products if necessary." However, Dr. Strickland testified that although he knew Harvey was a Jehovah's Witness, Harvey had told him he would consider a blood transfusion
Harvey's surgery was performed January 15, 1997. Although the surgery initially appeared to have gone well, Harvey developed a blood clot and had a stroke while in the recovery room. Because Harvey was unconscious, hospital personnel located his mother in the waiting room and obtained her permission to perform a CT scan and an arteriogram. A second surgery was performed and more blood clots were removed along the side of the carotid artery. Harvey was moved to the intensive care unit (ICU). He was intubated that evening by the on-call emergency room physician after the ICU nurse discovered Harvey was having trouble breathing, and his blood pressure was 200/110. The next day, Harvey began bleeding from the surgical site at his neck; he had lost approximately 30% of his blood volume, and his heart rate was extremely high. Dr. Strickland was concerned that if they could not get the heart rate down, Harvey would have a heart attack and die. When his hemoglobin level reached. Dr. Strickland recommended a blood transfusion to Harvey's mother, Julia, who initially declined due to her son's faith as a Jehovah's Witness. Ultimately, Julia consented to giving Harvey two units of packed red blood cells. Harvey recovered fully from the procedures.
Harvey instituted this suit in July 1998 alleging medical malpractice, medical battery, breach of express contract, and lack of informed consent. The trial court directed a verdict for Dr. Strickland on the breach of contract claim at the close of Harvey's case; the court directed a verdict for Dr. Strickland on the lack of informed consent claim at the close of the defense's presentation of evidence.
The medical malpractice and medical battery claims were submitted to the jury. After four hours of deliberations, the jury sent out a note indicating it could not agree. The jury was excused for the day, but brought back the next morning for further deliberations after an Allen charge. After the jury was sent out in the morning, counsel for Harvey requested if there was some way, in the event of a mistrial, for the court to get "all these thorny issues" before an appellate court without re-trying the case. During this discussion, the jury again returned, indicating it could not agree. The court then granted Dr. Strickland a directed verdict on the malpractice and battery claims and dismissed the jury. Harvey appeals.
Citing Hook v. Rothstein (1984), Dr. Strickland contends the subsequent unplanned emergency required he seek the consent of Harvey's mother for further treatments. Accordingly, as he sought and obtained Harvey's mother's consent to the blood transfusion, he contends he cannot be held liable as a matter of law. We disagree.
In Hook, the Court of Appeals first recognized that the doctrine of informed consent applies to physicians in South Carolina. Under that doctrine, a physician has a duty to disclose to a patient the diagnosis, risks, benefits, alternatives, etc., of any procedures the doctor proposes to perform. Hook, however, indicates such information is to be given to "a patient of sound mind, in the absence of an emergency which warrants immediate medical treatment." 281 S.C. at 547-48, 316 S.E.2d at 694-95. Accordingly, as Harvey was unconscious, and an emergency situation presented, Dr. Strickland asserts he was obligated to seek his mother's consent to the blood transfusion. We disagree…..Our General Assembly has recognized this right to be free of unwanted medical intrusion in the South Carolina Adult Health Care Consent Act (Consent Act), S.C. Code Ann. § 44-66-10 et seq. (Supp. 2001). Section 44-66-60 of the Consent Act states, in pertinent part:
(A) Unless the patient, while able to consent, has stated a contrary intent to the attending physician or other health care professional responsible for the care of the patient, this chapter does not authorize the provision of health care to a patient who is unable to consent if the attending physician or other health care professional responsible for the care of the patient has actual knowledge that the health care is contrary to the religious beliefs of the patient.
(B) This chapter does not authorize the provision of health care to a patient who is unable to consent if the attending physician or other health care professional responsible for the care of the patient has actual knowledge that the health care is contrary to the patient's unambiguous and uncontradicted instructions expressed at a time when the patient was able to consent.
Clearly, these sections reveal a legislative intent that a patient's wishes against medical treatment or intervention, when made known to a physician prior to surgery, must be followed by the attending physician.
Here, Harvey signed numerous forms indicating he was a Jehovah's Witness and did not wish to receive blood. In particular, on the date of his initial appointment with Dr. Strickland, Harvey signed a "Refusal of Treatment/Release from Liability" form which specifically which states:
I, Charles Harvey, refuse to have blood or any blood products given to me.
The risks attendant to my refusal have been fully explained to me and I fully understand that my chances for gaining normal health are seriously reduced, and that in all probability, my refusal for such treatment, medical intervention, and/or procedure (may) (will) seriously imperil my health or life.
With the understanding, I hereby release the attending physician, the Lexington Medical Center and its employees and their respective agents, heirs, executors, administrators and assigns from any and all claims of whatsoever kind of any nature.
Given this evidence demonstrating Harvey's desire not to receive blood, we find Dr. Strickland's argument that he was under an obligation to seek Julia Harvey's consent unavailing.
However, in light of Dr. Strickland's testimony to the effect that he knew Harvey was a Jehovah's Witness, and that although Harvey never said "yes" to a blood transfusion, Harvey had told him he would consider a blood transfusion, we find the informed consent issue was a matter for the jury. Accordingly, we hold the trial court erred in granting a directed verdict on Harvey's informed consent cause of action.
Harvey next asserts the trial court erred in granting a directed verdict to Dr. Strickland on his breach of contract claim. We agree.
Here, the documents Harvey relies upon to create an express contract are 1) a "Doctor's Survey Reply" signed by Dr. Strickland which indicates he is willing in principle to offer medical treatment without the use of blood or blood products, 2) a Refusal of Treatment form, signed by Harvey on 11/04/96, indicating he did not wish to receive blood, 3) a Consent to Operation form for an "arch and four vessel arteriogram" signed by Harvey on 11/04/96, indicating he did not give permission to the doctor to use blood or blood products, 4) a Consent to Operation form for a Carotid Endarterectomy signed by Harvey on 1/14/97, indicating he did not give permission to the doctor to use blood products, and 5) a Refusal of Transfusion, indicating Harvey is a Jehovah's Witness and refuses blood transfusion and absolves the hospital of liability. Harvey also testified that it was his understanding that "he could do the operation without- bloodless transfusions, so when I asked him about it, he said that that wouldn't be necessary. It wouldn't be necessary for the blood transfusion, so there was no more said."
We have previously recognized that an action may be maintained for breach of an express pre-treatment warranty to effect a particular result. Banks v. Medical University of South Carolina (1994); Burns v. Wannamaker (1985).
Viewing the above evidence, as we must, in the light most favorable to Harvey, we find it was for the jury to determine whether an express contract was created. Davenport v. Cotton Hope Plantation Horizontal Property Regime (1998) (when Court reviews grant of directed verdict, evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the non-prevailing party. If the evidence is susceptible of more than one reasonable inference, case should be submitted to the jury). Accordingly, the trial court's grant of a directed verdict is reversed.
South Carolina recognizes a medical malpractice cause of action stemming from a lack of informed consent. Hook v. Rothstein. Similarly, we have recognized that there may be a viable cause of action for medical battery as the result of failing to obtain proper consent. Banks v. Medical Univ. of South Carolina.
We find the trial court erred in granting Dr. Strickland a directed verdict as to these causes of action. Harvey presented expert testimony that his hemoglobin level was not critical at the time of the transfusion, and that there was not really an emergency situation. The expert also opined that Harvey did not really need a transfusion, and that alternative bloodless procedures were available. Given this testimony, we find the issues of medical battery and medical malpractice were for the jury….Return to contents