Breach of Contract and Informed Consent
Breach of Contract
Harvey was diagnosed with blockage in his carotid artery. Dr. Strickland recommended a surgical procedure. In anticipation of surgery, Harvey signed written forms entitled Refusal of Treatment/Release from Liability and Consent to Operation . The documents indicated that Harvey refused to have blood or blood products given to him and that he fully understood the attendant risks. The documents stated: In all probability, my refusal for such treatment, medical intervention, and/or procedure (may) (will) seriously imperil my health or life . Hospital forms list Harvey’s mother, Julia, as his emergency contact. The day before the surgery, Harvey signed another consent form indicating that he would not give permission to the doctor to use blood or blood products, even if it became necessary to administer blood.
Surgery was performed and appeared to have gone well. Harvey, however, later developed a blood clot and had a stroke while in the recovery room. Because Harvey was unconscious, hospital personnel located his mother in the waiting room and obtained her permission to perform a computed tomography (CT) scan and arteriogram. A second surgery was performed, and more blood clots were removed along the side of the carotid artery. Harvey was moved to the intensive care unit (ICU). He was intubated that evening by the on-call emergency room physician after the ICU nurse discovered Harvey was having trouble breathing. The next day, Harvey began bleeding from the surgical site and had lost approximately 30% of his blood volume. His heart rate was extremely high, and Dr. Strickland was concerned that if they could not get the heart rate down, Harvey would have a heart attack and die. When his hemoglobin level reached 8, Dr. Strickland recommended a blood transfusion to Harvey’s mother Julia, who initially declined because of her son’s faith as a Jehovah’s Witness. Ultimately, Julia consented to giving Harvey two units of blood. Harvey recovered fully from the procedures and later sued.
What is your verdict? Should Harvey win the lawsuit? Why or why not. Explain your answer
Apply concept of express contract
Apply the doctrine of informed consent
Apply the right of self-determination
Apply the Patient Bill of Rights
Answer must be at least 2 pages and no more than 4 pages.
You may want to use the following to assist you in your answer: please use the NJ statutes .
NJ Statutes, 26:2H-12.8 (enacted 1989) (Every person admitted to a general hospital . . .shall have the right:. . .(d)To receive from a physician information necessary to give informed consent prior to the start of any procedure or treatment. . .; (e) To refuse treatment to the extent permitted by law and to be informed of the medical consequences of this act. . . ).
Schloendorff v. Society of New York Hospital, 105 N.E. 92, 1914