Medical malpractice; Whether there was a genuine issue of material fact as to whether a blood transfusion was an objectively reasonable treatment under the circumstances; Braverman v Granger; The doctrine of avoidable consequences; Failure to mitigate damages; Personal representative (PR)

Holding that there was not a genuine issue of material fact as to whether a blood transfusion was an objectively reasonable treatment under the circumstances, and that decedent-Higgs’s violating the doctrine of avoidable consequences barred plaintiff-PR from an award of damages, the court affirmed summary disposition for defendants. Higgs died after declining a blood transfusion on the basis of his religious beliefs. The court found Braverman virtually indistinguishable. Trying to distinguish it, plaintiff argued that, unlike the decedent there, "Higgs had an alternative treatment available to him that could have substituted for a blood transfusion. According to plaintiff, a timely laparotomy could have served as an alternative to a blood transfusion.” Thus, unlike in “Braverman, a blood transfusion was not necessary here, as Higgs had other treatment options.” Plaintiff asserted that this created a question of fact as to whether a blood transfusion was an objectively reasonable treatment in this case. The court was not persuaded. The record showed that “a laparotomy would not have substituted for a blood transfusion.” Here, the doctrine of avoidable consequences “would apply forward from the point at which Higgs’s hemoglobin dropped below 8.4 g/dl. According to plaintiff’s expert witnesses, this was the point just before or after which defendants should have begun treating Higgs lest he lost his chance of surviving. Beyond this point, Higgs was required to accept an objectively reasonable treatment to recover his chance at surviving. A laparotomy was not one of his options.” Even if a laparotomy was an available alternative life-saving treatment, plaintiff assumed “this fact alone would be enough to generate an issue of fact as to whether a blood transfusion was an objectively reasonable treatment.” In making this assumption, plaintiff disregarded that the question was not whether some alternative treatment existed; it was “whether that treatment was a feasible treatment to preserve his life.” In this case, a laparotomy was not a feasible treatment option. It would not replenish his blood loss, and as plaintiff’s expert “testified, once Higgs’s hemoglobin dipped below 8.4 g/dl, Higgs was unlikely to survive a laparotomy. Reasonable minds could not disagree that a blood transfusion was an objectively reasonable treatment under the circumstances.” Thus, by refusing one, he “failed to make a reasonable effort to mitigate his damages. All common law limitations on Higgs’s cause of action apply to plaintiff’s wrongful-death action.”