Stewart-Graves v. Vaughn

¶51

Chambers, J.

(concurring in result) — This is a sad case involving a doctor who, during a crisis, fought to save a newborn child by providing resuscitation for 24 minutes. Now the doctor is being sued because the child survived with severe permanent disabilities. I concur with the majority that the doctor is not liable under informed consent or negligence theories. I write separately to suggest a more limited analysis.

¶52 Among other things, Nicole Stewart-Graves and Todd Graves claim the doctor failed to obtain informed consent and did not meet the standard of care. I agree with the majority that the emergency exception to the informed consent requirement defeats the informed consent claim in this case. Cf. RCW 7.70.050. It is undisputed that a medical emergency existed when Liam Stewart-Graves was born. The doctor was faced with a life or death decision to continue resuscitation efforts and neither parent was meaningfully available to consult. Under the emergency exception to the informed consent requirement, the doctor had no duty to obtain informed consent.

¶53 Appellants contend that not only was the doctor required to obtain their consent to continue resuscitation but also that after 15 minutes, the doctor was required to stop resuscitation entirely. The appellants couch this argument in terms of the standard of care. They argue that the standard of care requires the doctor to stop resuscitation when it becomes nearly certain that the child will suffer *141either death or severe and permanent disabilities. However, I find, as a corollary to the emergency exception to the informed consent requirement, there is no duty to stop emergency lifesaving care after it has begun just because the patient has little to no chance of survival without severe disabilities. It was undisputed that if Dr. Katherine Vaughn had paused in the resuscitation efforts, Liam would have died. Her decision to continue resuscitation until she had exhausted all possibilities was a reasonable response to an emergency.

¶54 I agree with the majority, “to suggest that a medical emergency ceases to exist once it becomes apparent to a physician that a patient will inevitably suffer severe disabilities is untenable.” Majority at 126. It is untenable because it offends the policy behind our “Good Samaritan” law, RCW 4.24.300, and the emergency exception to the informed consent requirement. See RCW 4.24.300; RCW 7.70.050. That policy is to encourage people to respond to emergencies, especially life-threatening emergencies. Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 939, 913 P.2d 377 (1988). Indeed, we have described this policy as a “compelling social need.” Burkhart v. Harrod, 110 Wn.2d 381, 398, 755 P.2d 759 (1988).

¶55 It is true that once a person responds to an emergency, she must meet the appropriate standard of care. In the case of a physician, the standard of care is an exacting one. But we need not analyze the standard of care to decide this case. A physician simply owes no duty to stop trying to save a life during an emergency. It would frustrate the purpose of the emergency exception to the informed consent requirement if a physician who begins lifesaving resuscitation efforts must stop after 5 minutes or 10 minutes or 15 minutes merely because, although the patient may live, the patient will have permanent disabilities. I would hold as a matter of law that, if an emergency exists such that the duty to obtain informed consent for resuscitation is waived, there is also no duty to stop resuscitation merely because the patient may survive but with permanent disabilities.

*142¶56 I agree with the majority that the wrongful birth/ wrongful life action recognized in Harbeson v. Parke-Davis, Inc., 98 Wn.2d 460, 656 P.2d 483 (1983), does not apply because there is no allegation of negligent prenatal counseling or procedures. However, given my disposition of the informed consent and standard of care issues, I would not discuss it further. I respectfully concur in the result.