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Court rules Jehovas' Witness may not sue for doctor's alleged error if blood products would have saved her life

Gwendolyn Rozier needed a kidney transplant, but was a practicing Jehova's Witness.  The tenants of her religion, pursuant to a particular passage in the Bible that Witnesses find spiritually compelling, require that she not receive blood products.  Doctors at St. John Hospital devised a treatment course that would have allowed her to receive a new kidney without a transfusion of blood, however, when uncontrolled bleeding occurred, she was faced with the option of bleeding, perhaps to death, or violating a major tenent of her faith.  Rozier chose not to receive blood, which likely would have saved her life, and died within days. 

Her family filed a wrongful death lawsuit against the doctor whose negligence allegedly caused the uncontrolled bleeding and who failed to timely recognize the problem.  The doctor and hospital sought summary disposition, arguing that since it was within Rozier's power to save her life through a series of blood transfusions, the doctrine of avoidable consequences precluded her family from suing:  since she could have "mitigated" her damages by receiving blood, even if he was negligent, the surgeon should not be responsible for her death.

The trial judge granted summary disposition, applying the so-called "objective" test.  Under that test, if there are actions which a "reasonable" victim could take which would save his or her life, the negligent actor who endangers the victim is "off the hook" for his or her lack of reasonable or "due" care.  The family appealed, seeking the application of the "case-by-case" analysis, pursuant to which the jury should be informed that the test to apply involves asking what a "reasonable person of the victim's faith" would do if confronted with the "avoidable consequence." 

The Court of Appeals affirmed the lower court, essentially holding that Rozier was legally "unreasonable" and cannot pursue a claim.  Her choice will not be evaluated with reference to the tenets of her faith.  It would be interesting to see if the same result obtained in a circumstance where the patient/victim was confronted with the choice of an elective abortion to save her own life.  Since a far greater percentage of our population would find the latter choice repugnant--indeed there are times and places where the choice to abort would have been illegal--adoption of the "objective" test of "avoidable consequences" would seem to be a closer question.  Judging the reasonableness of the tenets of anyone's religion is risky business.  We believe it is a question that should be evaluated by the jury, taking into account the victim's faith and "comparative fault," and doubt that it should be the province of the judge. The Court couched its decision as a protection of the exercise of religion and of separation of church and state.  We're not so sure that is what happened here.

Thompson O’Neil, P.C.
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