Jehovah's Witness died during bloody operation-my city headline in paper

by orbison11 24 Replies latest watchtower medical

  • hawkaw

    And here is what His Honour had to say about the JWs sticking their nose into this case in 2002 and the decision was upheld by the Court of Appeal as shown above.

    Reasons for Judgment of the Honourable Mr. Justice Esson:

    [1] This application is described in the notice of motion as seeking an order:

    1. Granting the religious community of Jehovah's Witnesses, represented by Kenneth Arthur Little and Roger Nathan McPhaden, leave to intervene in the appeal at Bar and present oral argument and make written submissions; or
    2. Alternatively, adding the Applicant as a party to the action.

    [2] The action is brought under the Family Compensation Act, R.S.B.C. 1996, c.126 by the husband and children of Daphne Hobbs who died tragically during surgery as a result of massive unexpected loss of blood. Mrs. Hobbs, a Jehovah's Witness, had before undergoing surgery signed a document headed "Refusal to Permit Blood Transfusion" in which she requested that no blood or blood derivatives be administered during her hospitalisation and released the hospital, its agents and personnel and the attending doctors:

    ...from any responsibility whatsoever for unfavourable reactions or complications or any untoward results, which may include death, due to my refusal to permit the use of blood or its derivatives and I fully understand the possible consequences of such refusal on my part.

    [3] The appeal is from a decision of a chambers judge after a summary trial applied for by the defendant physicians to determine the issue whether, assuming that blood loss resulted from their negligence, the document provided a complete answer to the claims against them. The chambers judge delivered lengthy written reasons dismissing the application of the defendants.

    [4] The application to intervene is opposed by the appellants and is supported by the respondents who are themselves members of the community of Jehovah's Witnesses.

    [5] The written submissions of the applicant propose that they be allowed to intervene on a uniquely broad basis. For instance, para. 27 of their "factum" reads:

    27. Jehovah's Witnesses are uniquely situated to assist the Appellate Court by making submissions on the following issues raised by the appeal:

    [1] Jehovah's Witnesses and others who choose not to accept blood transfusions will be detrimentally affected if the Appellant doctors' interpretation of the Release is accepted;

    [2] the Release, which Jehovah's Witnesses patients are required to sign as a condition to obtaining access to a public hospital, is contrary to public policy;

    [3] the Release is an unjustifiable violation of the Charter, ss. 2(a), and 25(1);

    [4] a patient should not be required to consent to blood transfusions in order to preserve the right to bring an action in negligence;

    [5] blood transfusions are not the only effective medical treatment when a patient's condition is serious;

    [6] alternatives to blood transfusion are standard medical treatment;

    [7] a physician who agrees to treat a patient refusing consent to blood transfusions is under the legal duty to advise of alternatives to blood transfusions and to administer those alternatives in a competent manner;

    [8] a defendant providing essential medical services should not be permitted to rely on the doctrine of volenti non fit injuria as a shield to negligence; and

    [9] rights affecting all patients in general and directly affecting an entire community in British Columbia should not be determined on an incomplete record and on affidavit evidence not tested by cross-examination.

    Several of those "issues" have not, I am told, been issues to this point in the litigation.

    [6] Paragraph 32 identifies a number of "essential facts" which are said to remain in dispute. Flowing from that it is submitted that:

    Cross-examination on the affidavits is necessary to resolve the conflict in the evidence. Alternatively, the case should be sent back for a trial on the merits.

    [7] In the course of oral argument counsel for the applicants resiled from the notion of gaining party status or calling fresh evidence or cross-examining on the affidavits filed before the trial judge and in the end, I think, narrowed the application to being allowed to put forward written and oral submissions in support of the plaintiffs' submissions.

    [8] I do not doubt that all those who adhere to the tenets of the Jehovah's Witnesses are interested in the issues raised by this case. No doubt, many members of the medical profession are interested but on the other side of the question. It does not follow that the ends of justice are best served by allowing persons with that kind of interest to be heard in litigation between individuals. It is all very well to say that to allow an intervenor to be heard may contribute a usefully different perspective. It is also possible that such contributions from, as it were, the sidelines may lead to confusion of issues.

    [9] In most cases, it is my impression that the efforts of intervenors make no significant contribution other than to add to the length of hearing, and the weight of paper. Underlying the submissions of the applicants seems to be an assumption that courts are incapable, without the assistance of intervenors, of understanding that decisions often have consequences far beyond those to the immediate parties. That assumption, with respect, is unjustified. Judges are conscious of the considerations often expressed on one side as the fear that to fail to recognize a right will unjustly affect others and, on the other that recognition of a right will "open the floodgates".

    [10] The courts have struggled with considerations of those kinds for a very long time. There is much to be said for the view that the law develops best on a case-by-case basis deciding only what is needed to resolve the issues between the parties.

    [11] In Baazley v. Children's Foundation et al, (1996), 75 B.C.A.C. 177 (C.A.) Goldie J.A., having allowed one application to intervene because it was not opposed, went on to say with respect to other applications:

    [18] I agree, however, ... that counsel for the Foundation is in a position to make all the arguments in law these applicants wish to make. Nothing I have heard, with great respect, persuades me that repetition of these arguments by the applicants will be of assistance to the court.

    [12] I would respectfully adopt that language. In my view, the plaintiffs are in a position to make all the arguments in law that these applicants could properly make and nothing I have heard persuades me that repetition of those arguments by the applicants will be of assistance to the court.

    [13] The application to intervene is dismissed.

  • hawkaw

    I also thought in His decision regarding the Refusal Card the following paragraphs that deal with an Ontario Court of Appeal decision were interesting and on point. Here I will re-state them.

    [65] As I have previously said, in Malette, supra, the Ontario Court of Appeal affirmed the trial judge’s conclusion that a statement made by a Jehovah’s Witness that she not be administered blood or blood products compelled a physician who knew of the statement to refrain from doing so. In response to the concern that the decision placed the physician on the horns of a dilemma when treating a Jehovah’s Witness in emergent circumstances, the court said the following at p. 434:

    The appellant argues that to uphold the trial decision places a doctor on the horns of a dilemma, in that, on the one hand, if the doctor administers blood in this situation and saves the patient’s life, the patient may hold him liable in battery while, on the other hand, if the doctor follows the patient’s instructions and, as a consequence, the patient dies, the doctor may face an action by dependants alleging that, notwithstanding the card, the deceased would, if conscious, have accepted blood in the face of imminent death and the doctor was negligent in failing to administer the transfusions. In my view, that result cannot conceivably follow. The doctor cannot be held to have violated either his legal duty or professional responsibility towards the patient or the patient’s dependants when he honours the Jehovah’s Witness card and respects the patient’s right to control her own body in accordance with the dictates of her conscience. The onus is clearly on the patient. When members of the Jehovah’s Witness faith choose to carry cards intended to notify doctors and other providers of health care that they reject blood transfusions in an emergency, they must accept the consequences of their decision. Neither they nor their dependants can later be heard to say that the card did not reflect their true wishes. If harmful consequences ensue, the responsibility for those consequences is entirely theirs and not the doctor’s.

    [66] Similarly, in the present case the request expressed in the first sentence of the Refusal cannot be construed to result in liability for assault and battery should a physician administer blood contrary to Mrs. Hobbs’ wishes and, concurrently, to result in liability in the event of an omission to administer blood when the need for blood or blood products was not caused by negligence and the standard of care required blood to be administered. When the need for blood arose in non-negligent circumstances, the request itself, clearly and unequivocally stated, ensured the result urged by the plaintiffs. That being the case, the release contained in the Refusal would not have been required.

  • hawkaw

    BTTT in case a few folks missed it

  • hawkaw

    For those interested in reading the 1990 Malette decision that His Honour discusses please travel to this web link:

    I think if we had Kerry's article and in 1990, I wonder if the Malette decision would have had a different outcome since we actually know JWs do not abstain from blood.


  • RunningMan

    "so, stay tuned for what really happened,,,,"

    I'm tuned. What really happened?

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