Shorter v. Drury

Supreme Court of Washington · 1985 · Torts

TortsMedical malpracticeWrongful deathAssumption of riskExpress assumption of riskReleaseswrongful deathmedical malpractice

Facts

Doreen Shorter, a Jehovah's Witness, underwent a dilation and curettage performed by Dr. Drury after she and her husband signed a hospital form requesting that no blood or blood derivatives be administered and releasing the hospital, personnel, and attending physician from responsibility for results due to that refusal. Before the procedure, both Dr. Drury and a second physician, Dr. Ott, advised Mrs. Shorter of the possibility of bleeding, and Dr. Ott warned that if she bled and refused transfusion she might die. During the procedure Dr. Drury negligently lacerated Mrs. Shorter's uterus, causing severe internal bleeding; despite repeated warnings that she would likely die without blood, both she and her husband refused transfusion. She died, and the jury found Dr. Drury negligent and a proximate cause of death, but allocated 75 percent of fault to the Shorters' assumption of the risk of bleeding to death.

Issue

Did the refusal-to-permit-blood-transfusion form completely bar the wrongful death action, and was it proper to submit express assumption of risk to the jury under Washington's comparative negligence statute? Also, did doing so violate the First Amendment's free exercise clause?

Rule

A release that does not expressly exculpate a physician from negligence is not a release from negligence, but it may validly evidence a patient's voluntary refusal of blood and assumption of consequences resulting from that refusal. Express assumption of risk survives Washington's comparative negligence statute because it is not negligence but waiver or consent. For express assumption of risk, the plaintiff must actually know the risk, appreciate and understand its nature, and voluntarily choose to incur it; the test is subjective.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Spokane, Maya Nolen signed a hospital form before surgery stating that no blood products were to be given to her and releasing the hospital staff and surgeon from responsibility for results caused by that refusal. During the operation, Dr. Evan Pike negligently cut an artery, and Maya died after refusing a transfusion that likely would have saved her life.

In a wrongful death malpractice suit, Dr. Pike argues the signed form completely bars liability. What is the strongest response?

Explanation. The majority held that a refusal-of-blood form is valid and admissible, but if it does not expressly exculpate the physician from negligence, it is not a release from liability for negligence. It may still evidence the patient's voluntary assumption of the consequences of refusing blood, including death from blood loss. Thus the negligence claim is not completely barred merely by the form.