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

orbison11

Court overturns Hobbs decision

On Tuesday, the B.C. Court of Appeal overturned a decision by Justice Ian Pitfield of the B.C. Supreme Court, suggesting there were enough questions remaining for the case to go back to trial.
The court case began when Hobbs's family launched actions against the attending physician, Dr. John Robertson. The provincial attorney-general is also named in the suit.
In 2004, Pitfield decided Hobbs had died April 16, 1996 as a result of bleeding but that this could have been prevented by blood transfusions. Hobbs was a Jehovah's Witness, a faith that rejects the practice of receiving blood from others, so she had signed a refusal form stating she not receive a transfusion. For Pitfield that was enough, but the court of appeal felt there was still a question of whether Hobbs would have been admitted for the surgery had she not signed the refusal form.
"It was open to the parties to seek evidence from the hospital that it would not have admitted Ms. Hobbs if she did not sign the refusal (assuming that to be the case). No such evidence was obtained. Rather, counsel for Dr. Robertson invited Mr. Justice Pitfield, and this court, to draw the inference that but/for signing the refusal, Ms. Hobbs would not have been admitted," court of appeal
justices Jo-Ann Prowse, Risa Levine and Allan Thackray wrote in their decision, released on Tuesday.
Their decision now opens the door for another trial to go ahead. One of Robertson's lawyers, Peter Willcock, said both his client and the family had been looking at ways to address the dispute efficiently. "It's fair to say that neither the family nor Dr. Robertson wanted the matter to go back to trial again." The parties and their lawyers are expected to sit down to look at what should happen next, according to Willcock. "There's certainly no lack of co-operation between their families and their lawyers."
The Times contacted the family's lawyer, Louis Zivot, but had not heard back as of press time. One of the issues the court of appeal cited in its decision was the role of the hospital over the question of getting Hobbs to sign the release form.
published on 02/17/2006

i think you could email them if you want to comment at
[email protected] and mention the article, which was front page
thanks
orbi

skyman

Thanks for the post

AuldSoul

Wow, orbi! That is weird.

The way I read the article, the only reason they opened this back up was to determine how much pressure the hospital exerted on the family to sign the blood release prior to admission? The hospital could have just said, "Sign it or don't. If you don't I WILL administer blood if I believe it is indicated. If you do, I won't."

But is it really reasonable of the court to expect anyone involved to accurately relate how much pressure the hospital staff put on the family during a traumatic event nearly ten years ago?

Did I get the gist correctly, as far as you can tell?

AuldSoul

orbison11

the very cool thing is

i have a client i have had for about 3 yrs,,,cool young lady, and confides in me

well, well, if she wasnt raised in this congregation,so, stay tuned for what really happened,,,,

orbi

DaveNwisconsin

what a shame, sorry

aquagirl

Several years ago,a man in Belfast Maine died of a type of leukemia that was totaly treatable w/bone marrow and blood transfusions.L potter by trade,he opted to 'die faithful'.big hero..left a widow and three kids.jws loved it.Couldnt stop babbeling about his 'faith'..Somethings wrong here..Now,the new buzz is that transfusions might be ok?..Too little too late..

Scully

AuldSoul:

The way I read the article, the only reason they opened this back up was to determine how much pressure the hospital exerted on the family to sign the blood release prior to admission?

That's how I read it too.

How ironic that the hospital/physician is being accused of "pressuring" a patient to sign an "official" hospital-issued waiver regarding something they have already signed a waiver for, which for all intents and purposes was already signed under some measure of duress [after the meeting when the documents are being handed out, with book study conductor offering to share his pen with you, etc, to make sure this vitally IMPORTANT document gets signed right away!!]

hawkaw

Hold on guys and I will go get the court case decision.

hawk

hawkaw

Okay guys here you go:

Reasons for Judgment of the Court:

INTRODUCTION

[1] This is an appeal from the order of Mr. Justice Pitfield, made November 19, 2004, dismissing the plaintiffs’ (“appellants”) claims against Dr. Robertson for damages under the Family Compensation Act, R.S.B.C. 1996, c. 126 (the “Act”) and for declaratory and other relief pursuant to the Canadian Charter of Rights and Freedoms (the “Charter”).

[2] The action arises from the death of Ms. Daphine Hobbs at the Chilliwack General Hospital (the “Hospital”) on April 16, 1996 as a result of massive blood loss following a hysterectomy performed on her by Dr. Robertson. Dr. Robertson admits that he was negligent in the course of the surgery and that his negligence was a proximate cause of Ms. Hobbs’ death. The appellants admit that Ms. Hobbs would not have died if she had received a blood transfusion either during or following the surgery. Ms. Hobbs was a Jehovah’s Witness whose religious tenets forbid its adherents from undergoing blood transfusions.

[3] The principal issue on appeal is the effect to be given to a document Ms. Hobbs signed at the Hospital on April 12, 1996 entitled “Refusal to Permit Blood Transfusion” (the “Refusal”), the full text of which is attached as Schedule “A” to these reasons for judgment. The trial judge found that Ms. Hobbs was required to sign the Refusal as a condition of her admission to the Hospital and that the Refusal was a complete bar to the appellants’ claims against Dr. Robertson for damages. He also found that the Refusal was not contrary to public policy and that the Charter did not apply to it.

[4] For the reasons which follow, we conclude that this action should not have been decided on the basis of the record which was before Mr. Justice Pitfield and that the appeal must be allowed and the matter remitted to the trial court. We come to this conclusion with considerable reluctance since it is now almost 10 years since the cause of action arose. Further, this is the second time this Court has remitted the matter to the trial court on the basis of an inadequate record.

[5] We are satisfied that there are critical gaps in the Special Case stated by the parties and that there is a potential for real prejudice to the Hospital (not to mention the parties themselves) if this action is resolved on the record as it presently stands. In that regard, we emphasize that the Refusal is the Hospital’s document, apparently signed pursuant to Hospital policy, and yet the Hospital has not been a party to the action since June 7, 2001 when a consent dismissal order was entered. The form and substance of the action have changed considerably since then, with constitutional arguments raised under the Constitutional Question Act, R.S.B.C. 1996, c. 68 in June 2004 and the Special Case giving rise to the order under appeal being stated by the parties in July 2004.

[6] During the hearing of the appeal, the Court raised its concerns regarding the state of the record and the possible prejudice to the Hospital in deciding important issues of law and public policy relating to the Hospital’s document without the benefit of the Hospital’s evidence. Those concerns became more pronounced in reviewing the materials and authorities following the hearing.

[7] Given the manner in which the case was presented, and the fact that it ultimately turns on the interpretation and legal effect to be given to one critical document, we consider it inappropriate to attempt to isolate and decide single sub-issues while remitting the remainder of the issues to the trial court. For that reason, we would remit the entire action to the trial court.

[8] Because we have concluded that the action must be remitted to the trial court, we will limit our comments to those necessary to explain our conclusion.

HISTORY OF THE PROCEEDINGS

[9] On February 4, 1998, the appellants (the husband and three children of Ms. Hobbs) commenced an action against Dr. Robertson, the Hospital and four other doctors by way of Writ of Summons and Statement of Claim. The Hospital filed an Amended Statement of Defence on August 24, 1998 and Dr. Robertson and the other defendant doctors filed a Further Amended Statement of Defence on November 9, 1998.

[10] On December 6, 2000, Dr. Robertson and Dr. Suleman (the anaesthetist) brought an application pursuant to Rule 18A of the Rules of Court (the “Rules”) seeking a declaration that the Refusal barred the appellants’ claim. Prior to the hearing of the application, the appellants agreed to dismiss the proceedings against the other three doctors. The Hospital appeared briefly on the first day of the hearing, but was excused and took no part in the proceedings. A consent order was filed June 7, 2001 dismissing the action against everyone other than Dr. Robertson and Dr. Suleman, without costs.

[11] On February 1, 2001, Mr. Justice Melvin dismissed the Rule 18A application. He found that the Refusal did not release Dr. Robertson and Dr. Suleman from negligence, and, in the alternative, if it did release them, it would be contrary to public policy. (See Hobbs v. Robertson , 2001 BCSC 162, (2001) 85 B.C.L.R. (3d) 114 (B.C.S.C.).) Dr. Robertson and Dr. Suleman appealed from Mr. Justice Melvin’s order and, on September 9, 2002, this Court allowed the appeal and remitted the action to the trial court on the basis that the application should not have proceeded on the basis of significant assumed facts. (See Hobbs v. Robertson , 2002 BCCA 381, (2002) 172 B.C.A.C. 282.)

[12] Undaunted, the parties decided to proceed by way of a Special Case pursuant to Rule 33 of the Rules, supported by affidavits (including expert evidence) and admissions made pursuant to Rule 31. In that proceeding, filed July 12, 2004, the appellants abandoned their claim against Dr. Suleman, leaving only Dr. Robertson as a defendant. Pursuant to Rule 33, the parties concurred in stating the following question for the opinion of the court:

On the Admissions made and the opinions admitted into evidence, is this action in negligence arising out of the death of Daphine Hobbs, barred by the release of the attending doctors from any responsibility whatsoever for unfavourable reactions or complications or any untoward results, which may include death, due to Mrs. Hobbs’ refusal to permit blood or blood derivatives to be administered to her.

This question tracked, in part, the wording of the Refusal.

[13] On June 4, 2004, the appellants filed a Notice Under The Constitutional Questions (sic) Act (the “Notice”), seeking relief under s. 52(1) of the Constitution Act, 1982 and/or s. 24(1) of the Charter in relation to the Refusal. The full text of that Notice is set out as Appendix “B” to these reasons.

[14] On November 19, 2004 (after the hearing before Pitfield J.), the appellants filed a Reply to Dr. Robertson’s Further Amended Statement of Defence alleging that if the Refusal was found to bar the appellants’ claim against Dr. Robertson for negligence, it was of no force and effect on the basis that the Hospital’s requirement that it be signed as a condition of admission breached Ms. Hobb’s Charter rights and the Charter rights of the appellants and other Jehovah’s Witnesses. (An unfiled copy of the Reply was placed before Mr. Justice Pitfield at the hearing of the Special Case.)

[15] The Special Case proceeded before Mr. Justice Pitfield in two segments. The first segment, heard July 12-15, 2004, dealt with the interpretation and effect of the Refusal. Mr. Justice Pitfield released reasons for judgment on August 16, 2004 finding that the Refusal barred the appellants’ claim for negligence and that it was not contrary to public policy (See 2004 BCSC 1088, (2004) 243 D.L.R. (4 th ) 700.)

[16] The second segment of the Special Case was heard November 15 and 16, 2004. Mr. Justice Pitfield released reasons November 19, 2004 finding that the Refusal did not engage the Charter, with the result that the appellants’ action was dismissed. (See 2004 BCSC 1508, (2004) 246 D.L.R. (4 th ) 380.)

[17] The appellants filed a Notice of Appeal on August 31, 2004 from Mr. Justice Pitfield’s first decision. It does not appear that they filed an Amended Notice of Appeal to encompass the second decision.

ISSUES RAISED ON APPEAL

[18] The appellants raised a number of issues relating to the interpretation and application of the Refusal. Broadly framed, those issues are:

(a) whether the Refusal is a contract, or a term of a contract, between Ms. Hobbs and the Hospital and/or Ms. Hobbs and Dr. Robertson;

(b) if the Refusal is a contract or contractual term only between the Hospital and Ms. Hobbs, whether Dr. Robertson is entitled to take the benefit of it;

(c) whether, as a matter of interpretation, the Refusal constitutes a release of negligence by Ms. Hobbs against the Hospital and/or Dr. Robertson;

(d) if the Refusal constitutes a release of Dr. Robertson’s negligence, whether it is contrary to public policy;

(e) if the Refusal constitutes a release of Dr. Robertson’s negligence and is not contrary to public policy, whether it is contrary to the Charter.

THE PROBLEM

[19] Since we have concluded that this case must be remitted to the trial court, we find it unnecessary to review in any detail the factual basis upon which the Special Case proceeded. We note, however, that the first problem with the Special Case arose prior to the hearing of the appeal when, as a result of materials provided to this Court shortly before the hearing, a question arose as to whether causation was in issue. In response to a memorandum from the Court raising that question, counsel provided a letter dated January 12, 2006 which summarized several of the more important admissions upon which the parties relied. That letter provides, in part, as follows:

(1) Dr. Robertson admits that the standard of care in his specialty required that, in the circumstances of this case, the vaginal hysterectomy be converted to an open abdominal procedure not later than 1430 hours;

(2) Dr. Robertson also admits that the standard of care in his specialty required that, rather than morselating or cutting the uterus into pieces vaginally or laproscopically, he should have converted the vaginal hysterectomy to an open abdominal procedure;

(3) Dr. Robertson admits that, on the balance of probabilities, the blood loss would have been stopped and Mrs. Hobbs would have survived without the need of a transfusion had abdominal surgery been commenced not later than 1430 hours;

(4) Dr. Robertson admits that, on the balance of probabilities, the delay in the commencement of the abdominal surgery to 1520 hours resulted in the need for transfusion. He admits that the inability to transfuse resulted in Mrs. Hobbs’ death;

(5) The Plaintiffs admit that on the balance of probabilities, a transfusion intra operatively or post operatively would have enabled Mrs. Hobbs to survive;

(6) The Defendants concede that in view of Dr. Robertson’s specific knowledge of Mrs. Hobbs’ religious views, and that she would refuse blood, that he could not, in this case, argue a failure to mitigate in the absence of the written release;

. . .

(7) In view of the above, the parties agree that:

Unless the release was effective to release Dr. Robertson for his admitted negligence, or, failing that, at common law is sufficient to constitute on the part of Mrs. Hobbs a voluntary assumption of the specific risk of death from loss of blood, (and apart from the public policy and Charter arguments), Dr. Robertson would have been liable in damages for Ms. Hobbs’ death.

[20] The import of this letter is that causation was not in issue and that if the Refusal did not release Dr. Robertson from liability, either as a matter of contract or by virtue of the doctrine of volenti non fit injuria, Dr. Robertson would be 100% responsible for the damages, which had been agreed to by counsel. Further, if the Refusal released Dr. Robertson from liability, but it was either contrary to public policy or contrary to the Charter, then Dr. Robertson would be 100% liable for the damages suffered by the appellants flowing from Ms. Hobbs’ death.

[21] Unfortunately, it subsequently became apparent that there were problems with the manner in which the Special Case was stated which were not resolved by the letter of January 12 th . A more significant problem arose in relation to the first issue raised by the parties; namely, whether the Refusal was a contract and, if so, with whom.

[22] Mr. Justice Pitfield found that there was a contractual relationship between both Ms. Hobbs and the Hospital and between Ms. Hobbs and Dr. Robertson. Although his reasons are not entirely clear on this point, it appears that he found the Refusal constituted a stand-alone contract between Ms. Hobbs and the Hospital whereby Ms. Hobbs was admitted to the Hospital on the condition that she sign the Refusal. He also found that the Refusal was a term of the doctor-patient contract between Dr. Robertson and Ms. Hobbs, procured by the Hospital as agent for Dr. Robertson (a finding for which we can find no support in the record).

[23] In addressing the issue of whether there was consideration for the alleged contract between Ms. Hobbs and the Hospital which, in turn, was incorporated into the doctor-patient contract between Ms. Hobbs and Dr. Robertson, Pitfield J. stated at para. 60 of his reasons for judgment:

I need not speculate about what might have occurred at the hospital had Mrs. Hobbs declined to sign the Refusal. The fact is, the hospital insisted that the Refusal be signed as a condition of admission, it was signed, Mrs. Hobbs was admitted and the surgery was performed. Consideration was therefore provided for the Refusal which became a term of the contract between Mrs. Hobbs and Dr. Robertson. The challenge is to determine the meaning and effect of the Refusal in the tragic and sensitive circumstances of this case.

[24] The provisions of the Special Case upon which Mr. Justice Pitfield must have relied in coming to the conclusion that there was consideration for the Refusal (and, thus, a contract) are paras. 26 and 29, which provide:

26. On April 12, 1996, Mrs. Hobbs attended at a pre-assessment clinic at Chilliwack General Hospital where she signed a REFUSAL TO PERMIT BLOOD TRANSFUSION. A nurse was the only medical person Mrs. Hobbs saw on that date.

. . .

29. Persons who choose not to accept blood or blood products are required by the hospital on their admission to sign the REFUSAL. All Jehovah Witness patients admitted to the hospital for treatment must sign the REFUSAL if they adhere to the religious tenets of their faith.

[25] Mr. Justice Pitfield found that the consideration moving from the Hospital to Ms. Hobbs in return for her signing the Refusal was her admission to the Hospital. It is on that basis he found the Refusal constituted a contract between Ms. Hobbs and the Hospital. It is also primarily on that basis he found that the Refusal was a term of the contract between Ms. Hobbs and Dr. Robertson, obtained by the Hospital as Dr. Robertson’s agent.

[26] But the Special Case does not state that Ms. Hobbs would have been refused admission if she had not signed the Refusal, or that the Hospital “insisted” that she sign the Refusal. Mr. Justice Pitfield said that it was not necessary for him to speculate what would have happened if Ms. Hobbs had not signed the Refusal. In our view, however, that question was significant and required an answer. For example, if the Hospital would have admitted Ms. Hobbs even if she did not sign the Refusal, how could it be said that she received consideration from the Hospital for signing it?

[27] It was open to the parties to seek evidence from the Hospital that it would not have admitted Ms. Hobbs if she did not sign the Refusal (assuming that to be the case). No such evidence was obtained. Rather, counsel for Dr. Robertson invited Mr. Justice Pitfield, and this Court, to draw the inference that but/for signing the Refusal, Ms. Hobbs would not have been admitted. While it is tempting to draw that inference from para. 29 of the Special Case, and Mr. Justice Pitfield yielded to the temptation, we find he erred in so doing, particularly since the inference he drew directly affected the interests of the Hospital and exposed it to the prospect of further inferences being drawn against it in relation to the public policy and Charter arguments. While the inference Pitfield J. drew may have been a logical inference from the facts stated, it was not a necessary inference. Paragraph 26 of the Special Case is neutral on the point; and para. 29 is equivocal, at best. The Hospital may or may not have admitted Ms. Hobbs if she had declined to sign the Refusal.

[28] The point is of such great significance to the resolution of the Special Case as presented that it should not have been left in doubt. The parties could have, and, in our view, should have, obtained evidence from the Hospital as to whether it was a condition of Ms. Hobbs’ admission that she sign the Refusal; that is, whether she had to sign the Refusal in order to be admitted. Paragraphs 26 and 29 of the Special Case are far from the best evidence on the subject.

[29] In analyzing the significance of this gap in the Special Case, we note that the appellants submitted that Ms. Hobbs was entitled to admission to the Hospital as of right (subject to her being signed in by a doctor with hospital privileges and to contingencies such as the availability of beds) and that the Hospital would have been acting contrary to various statutory provisions had it “insisted” that Ms. Hobbs sign the Refusal as a condition of admission. This position was echoed in the pleadings of the Hospital at a time it was still a party to the action. At para. 8 of its Amended Statement of Defence, the Hospital pleaded that it was not in a contractual relationship with Ms. Hobbs and that a contract such as that alleged by Dr. Robertson would have violated s. 13 of the Hospital Insurance Act, R.S.B.C. 1996, c. 204. In other words, the Hospital denied the existence of the very contract that Dr. Robertson was seeking to impose on Ms. Hobbs.

[30] It is also worthy of note that Dr. Robertson played no role in the preparation of the Refusal; he did not discuss it with Ms. Hobbs; he was unaware whether she had signed it; and he did not know of any doctor at the Hospital who would not have performed surgery on a patient who had not signed it.

[31] It was, nonetheless, a significant aspect of Dr. Robertson’s defence that the Refusal constituted a contract between the Hospital and Ms. Hobbs and that he was entitled to the benefit of that contract, either because the Hospital was his agent in obtaining the Refusal (as found by Mr. Justice Pitfield) or because he was an intended beneficiary of the contract in accordance with a line of authority including London Drugs v. Kuehne & Nagel International Ltd., [1992] 3 S.C.R. 299 and Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd., [1999] 3 S.C.R. 108. Unfortunately, the manner in which the Special Case is stated does not, in our view, provide an adequate foundation for the resolution of this and the other contract-based arguments.

[32] The problems we have highlighted with the record in relation to the contractual issues also spill over to the other issues raised by the parties. For example, the volenti defence can arise in both contractual and non-contractual circumstances. While it is possible in theory to isolate the volenti issue from the contract issue in this case, we do not consider it wise to do so since both issues turn on an interpretation of the language of the Refusal. It may be that further evidence would impact on the question of interpretation.

[33] Similarly, the questions of whether the Refusal is contrary to public policy and/or contrary to the Charter only arise if the Refusal is found to be a contract, or a non-contractual document which releases Dr. Robertson from liability. Given the potential significance of these issues to the parties, Jehovah’s Witnesses, the Hospital and the general public, the Court is loathe to engage in their analysis without the benefit of a complete and accurate record. In that regard, we find that the foundation for the Charter arguments is also lacking, perhaps due to the fact that the Charter arguments were not supported by a pleading until the appellants filed their Reply in November 2004 (over six years after they filed their Writ and Statement of Claim). It was not until that time that the appellants’ Charter claims were expanded to include claims that the Charter rights of the appellants and of all Jehovah’s Witnesses admitted to the Hospital for necessary medical services were breached. Even then, the public standing issue in relation to the Charter arguments was only raised for the first time on appeal.

[34] This case has taken almost 10 years to make its way to and through the courts. Although we do not doubt that counsel had the best of intentions in attempting to deal with the issues by way of admissions in order to save time and expense, their efforts thus far have failed. The issues and sub-issues have expanded over time, and encompass public policy and Charter arguments which may resonate far beyond the confines of this case and these parties. Although the question arising from the Special Case is stated with beguiling simplicity, it has been complicated by important public policy and Charter arguments which do not permit of easy resolution. In our view, justice would not be served by deciding those issues on this record. Nor do we consider it appropriate to permit counsel to attempt to remedy the record at this late stage of the proceedings in order to salvage the appeal. The development of a Special Case must be done in the trial court in the first instance, not by supplementing the case on appeal.

CONCLUSION

[35] In the result, for the reasons we have stated, we would allow the appeal, set aside the order of Mr. Justice Pitfield, and remit the action back to the trial court.

[36] If counsel cannot agree on costs, we would invite them to make written submissions. We would direct that those submissions be filed on or before March 31, 2006. We leave it to counsel to agree to a schedule for filing.

“The Honourable Madam Justice Prowse”

“The Honourable Madam Justice Levine”

“The Honourable Mr. Justice Thackray”

SCHEDULE A

CHILLIWACK GENERAL HOSPITAL

REFUSAL TO PERMIT BLOOD TRANSFUSION

I request that no blood or blood derivatives be administered to my

”DAPHINE L. HOBBS”

(self, son, daughter)

(name)

during this hospitalization. I hereby release the CHILLIWACK GENERAL 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.

Signature of Patient “Daphine L. Hobbs”

Signature of Patient’s

Husband or Wife ___________________

When a patient is a minor or incompetent to give consent:

Signature of Person

Authorized to Consent

for the Patient ___________________

Relationship to Patient ___________________

Time “1430” Date “12 - 4 - 96”

Witness “M. S. XXXXXXXXXX”

Occupation “P.A.C. Clerk

hawkaw

And here is the url link:

http://www.courts.gov.bc.ca/jdb-txt/ca/06/00/2006bcca0065.htm

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

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