Shine v. Vega (429 Mass. 456) 1999

…At approximately 7 A.M. on Sunday, March 18, 1990, twenty-nine year old Catherine Shine arrived at the MGH emergency room seeking medical help for an asthma attack. Catherine had been asthmatic throughout most of her life, a condition she controlled through prescription medication. The daughter of a physician, Catherine had educated herself about her condition and was well informed about her illness. Her asthmatic attacks were characterized by rapid onset, followed by a rapid remission. She had never required intubation in the past.

Earlier that morning, Catherine had suffered a severe asthma attack at her sister Anna's apartment. Despite believing that her condition was improving after using her prescription inhaler, Catherine agreed with Anna's suggestion to go to MGH, but on the condition that she be administered only oxygen. After Anna received assurances from an MGH representative that Catherine would be treated with just oxygen, Catherine entered the MGH emergency department, accompanied by Anna.

Catherine initially was given a nebulizer, a mask placed over her mouth which delivered oxygen and medication. She complained to Anna that the medication was giving her a headache, removed the mask and indicated that she wished to leave the hospital. Catherine's behavior alarmed the nurse who was treating her. An arterial blood gas test, measuring the levels of oxygen and carbon dioxide in her blood, was drawn at approximately 7:15 A.M. The results, obtained at approximately 7:30 A.M., showed that Catherine was "very sick." Dr. Vega, the only emergency room attending physician on staff at MGH that morning, examined Catherine and concluded that she required intubation. Catherine resisted, and Dr. Vega initially agreed to try more conservative treatment with the oxygen mask. Catherine continued to disagree with the medical staff concerning her treatment.

Anna, frustrated by what she felt was a medical staff unwilling to listen to her sister, telephoned their father, Dr. Shine, who was in England. Dr. Shine had treated Catherine when she was a child and was familiar with Catherine's condition. Dr. Shine spoke to an MGH physician and told him that Catherine was intelligent and "very well-informed" about her illness, and he urged the physician to listen to Catherine and to try to obtain her consent for any treatment. Dr. Vega testified that he told Dr. Shine that Catherine was in "the midst of an extremely severe asthma attack," and that he unsuccessfully had tried to avoid intubation. Dr. Vega testified that Dr. Shine asked him to wait until he flew to Boston before intubating Catherine. He also testified that he had made a "conscious decision" not to tell Catherine that her father had opposed intubation.

Anna returned to Catherine's room to find her in a "heated" argument with the MGH staff. Catherine's condition had improved somewhat, and she was able to talk and to breathe more easily. At approximately 7:40 A.M., during a moment when the doctors left Catherine and Anna alone together, Catherine told Anna to "run." They ran down the corridor to the emergency room exit doors, where they were forcibly apprehended by a physician and a security guard. Catherine was "walked back" to her room where Dr. Vega immediately ordered that she be placed in four-point restraints, in part because she had refused treatment and attempted to leave the emergency room. Catherine and Anna were forcibly separated. Dr. Vega initiated the process of having Catherine intubated. At approximately 8 A.M. the results of a second blood gas test became available, showing that Catherine's condition had improved somewhat. Dr. Vega testified that the results, even if he had read them (he had not), would not have changed his decision to intubate Catherine. At approximately 8:25 A.M., the intubation procedure commenced, approximately forty-five minutes after Catherine had been strapped in four-point restraints. Catherine never consented to this treatment. Dr. Vega testified that he never discussed with Catherine the risks and benefits of intubation. Neither Anna, who was still at the hospital, nor Dr. Shine was asked to consent to the intubation. Catherine was released from MGH the following day.

Catherine's family testified that she was traumatized by these events. She had nightmares, cried constantly, and was unable to return to work for several months. For the first time in her life, they said, she was obsessed about her medication and what she ate. Catherine became suspicious of physicians, and repeatedly "swore" she would never go to a hospital again. In July, 1992, Catherine suffered another severe asthma attack while at home with her fiance and her brother. She did not want to go to a hospital. After she became unconscious, her brother called an ambulance. Despite two days of medical treatment at South Shore Hospital, she died.

Dr. Shine's central claim both at trial and on appeal is that Dr. Vega and MGH wrongfully restrained and intubated Catherine without her consent. He sought to show that Catherine's mental abilities at the relevant times were not impaired, and that she was not facing a life-threatening emergency when she was restrained and intubated. The defense took the position that Dr. Vega was confronted with a life-threatening emergency, and Catherine's consent was not necessary. On appeal they argue that a medical emergency operates as a limitation on the "abstract right" of a patient to refuse treatment, and that in this situation a doctor may override a patient's right to refuse treatment.

The judge instructed the jury that "under Massachusetts law a patient has the right to refuse medical treatment except in an emergency, life-threatening situation" (emphasis added). It was therefore up to the jury, she said, to determine whether or not such a situation existed. She repeated that instruction, emphasizing "once again" that "the law in Massachusetts is that a patient has the right to refuse medical treatment except in an emergency, life-threatening situation." She told the jury that this was not a case of "informed consent" because Catherine's right to refuse to be intubated was "not an absolute right." It is a right constrained by "the right of the state or the obligation of the state to preserve the lives of its citizens . . . a right that exists in an emergency room setting to perform treatment without the consent of the patient," she charged.

The judge repeated this several times. On the element of negligence, she instructed that "if there is a life-threatening circumstance, then the hospital, its employees, and Doctor Vega have the right to treat Catherine Shine without getting her consent or anybody else's consent, whatever her condition . . "In other words," she said, "a physician who . . . has reason to believe that the failure to conduct a procedure such as intubation would create a likelihood of serious harm to the patient by reason of a life-threatening situation may perform that procedure without the consent of the patient."

As to the assault and battery count, she instructed "that a doctor and/or a hospital does not commit an assault and battery when they treat a patient without her consent if the treatment is necessary to save her life or to prevent serious bodily harm." On the charge of false imprisonment, the judge instructed that medical personnel may confine a patient without her consent, "if there is reason to believe that a person in an emergency room is suffering from a life-threatening situation." She repeated that "it is lawful for the hospital and for Doctor Vega to have confined Catherine Shine if she is experiencing a life-threatening emergency. That is justified."

The defendants first argue that Dr. Shine did not adequately preserve his challenge to the jury instructions on the emergency exception to tort liability because he failed to convey to the judge the definition of an "emergency" he espouses on appeal -- that there must be a life-threatening situation and the patient must be unconscious or otherwise incapable of giving her consent. We conclude that the issue was not waived: the question whether Catherine's consent was required before intubation was a live issue throughout trial, and was properly preserved. The plaintiff objected to the judge's refusal to instruct the jury on Catherine's competence, and he objected to the defendants' instructions on the emergency exception espoused by the defendants and adopted by the judge. Moreover, the defendants had the burden of proving that an exception relieved them of tort liability….

In Norwood Hosp. v. Munoz, 409 Mass. 116 (1991), we considered in what circumstances a "competent individual may refuse medical treatment which is necessary to save that individual's life." We described in that case both the common law and constitutional bases for our recognition of the "right of a competent individual to refuse medical treatment."… We recognized that "every competent adult has a right 'to [forgo] treatment, or even cure, if it entails what for [her] are intolerable consequences or risks however unwise [her] sense of values may be in the eyes of the medical profession.'" Harnish v. Children's Hosp. Medical Ctr., 387 Mass. at 154, quoting Wilkinson v. Vesey, 110 R.I. 606, 624 (1972).

In Norwood Hosp. v. Munoz, we also described how the "right to bodily integrity" had developed through the doctrine of informed consent. We again stressed that it is "for the individual to decide whether a particular medical treatment is in [her] best interests," "whether that decision is wise or unwise," and that a patient's right to refuse medical treatment, after having been informed by her physician of the risks involved, is not undermined because the treatment involves "life-saving procedures."

Dr. Vega and MGH concede that Catherine exercised her right to refuse medical treatment and never consented to intubation. But, they argue, Dr. Vega could override Catherine's wishes as long as he acted "appropriately and consistent with the standard of accepted medical practice" and "to save and preserve her life in an emergency situation." It was not necessary, they argue, to instruct the jury on a competent patient's right to refuse medical treatment because it was, in their words, "largely irrelevant" to the critical liability question -- whether Catherine faced a life-threatening situation.

The emergency exception to the informed consent doctrine has been widely recognized and its component elements broadly described…. We went on to say that "unless there is an emergency or an overriding State interest, medical treatment of a competent patient without his consent is said to be a battery." We did not elaborate on the requirements of the emergency exception to the informed consent doctrine because that issue was not presented. In Canterbury v. Spence, 150 U.S. App. D.C. 263 (1972), a seminal case, the court explained that the emergency exception n17 "comes into play when the patient is unconscious or otherwise incapable of consenting, and harm from a failure to treat is imminent and outweighs any harm threatened by the proposed treatment. When a genuine emergency of that sort arises, it is settled that the impracticality of conferring with the patient dispenses with need for it. Even in situations of that character the physician should, as current law requires, attempt to secure a relative's consent if possible. But if time is too short to accommodate discussion, obviously the physician should proceed with the treatment." …Consistent with other courts that have considered the issue, we recognize that the emergency-treatment exception cannot entirely subsume a patient's fundamental right to refuse medical treatment. The privilege does not and cannot override the refusal of treatment by a patient who is capable of providing consent. If the patient is competent, an emergency physician must obtain her consent before providing treatment, even if the physician is persuaded that, without the treatment, the patient's life is threatened. See Norwood Hosp. v. Munoz; Miller v. Rhode Island Hosp. , 625 A.2d 778, 784 (R.I. 1993) ("physician must respect the refusal of treatment by a patient who is capable of providing consent, even in an emergency"). If the patient's consent cannot be obtained because the patient is unconscious or otherwise incapable of consenting, the emergency physician should seek the consent of a family member if time and circumstances permit…. If, and only if, the patient is unconscious or otherwise incapable of giving consent, and either time or circumstances do not permit the physician to obtain the consent of a family member, may the physician presume that the patient, if competent, would consent to life-saving medical treatment.

In the often chaotic setting of an emergency room, physicians and medical staff frequently must make split-second, life-saving decisions. Emergency medical personnel may not have the time necessary to obtain the consent of a family member when a patient is incapable of consenting without jeopardizing the well-being of the patient. But a competent patient's refusal to consent to medical treatment cannot be overridden because the patient faces a life-threatening situation.

To determine whether an "emergency" existed sufficient to insulate Dr. Vega and MGH from all tort liability, the jury should have been required to decide whether Catherine was capable of consenting to treatment, and, if not, whether the consent of a family member could have been obtained. It is up to the jury to determine whether the treating physician took sufficient steps, given all of the circumstances, to obtain either the patient's informed consent, or the consent of a family member. See Miller v. Rhode Island Hosp. , 625 A.2d at 787 ("under the emergency exception to informed consent it is within the domain of the jury to engage in factfinding concerning the existence of an emergency and a patient's competence to consent"). In this case the judge's charge foreclosed the jury from making those necessary determinations. The instructions were repeated several times by the judge. She asked the jury to consider first whether Catherine's life was threatened. If the jury answered that question affirmatively, the jury, in essence, were instructed to go no further. The jury instructions concerning assault and battery and false imprisonment were erroneous for the same reason: they were premised on the theory that, despite Catherine's refusal of treatment, the defendants were absolved of all liability if the jury determined that Catherine faced a life-threatening situation….