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Zittrain Torts Playlist Spring 2013

Elmer E. Shorter, as personal representative of the Estate of Doreen V. Shorter, deceased, Appellant, v. Robert E. Drury, M.D. and Jane Doe Drury, his wife, Respondents.

Headnote

Should courts excuse defendants whose negligent acts cause the kind of harm that the plaintiff has assumed risk for? The plaintiff was a Jehovah's Witness; by religious doctrine, members of the faith are prohibited from receiving blood transfusions. In order to remove a failed abortion from her uterus, the plaintiff submitted to a "dilation and curettage"--which was recommended and performed by the defendant. Before the surgery was scheduled, the plaintiff was informed that the procedure had a risk of severe bleeding and perforation of the uterus. However, the plaintiff was not informed that there were two alternative procedures available which had lower risks of bleeding. Nevertheless, the plaintiff consented to the surgery and signed a form indicating her refusal to permit a blood transfusion. During the operation, the defendant negligently, severely lacerated the plaintiff's uterus, causing serious blood loss. Doctors pleaded with the plaintiff and her husband to permit a blood transfusion. They both refused, and the plaintiff bled to death. Doctors for both parties agreed that a transfusion had a substantial probability of saving the plaintiff's life.