Williams v. State ex rel. Wyoming Workers' Safety & Compensation Division

VOIGT, Chief Justice,

dissenting.

[¶ 24] I respectfully dissent. The underlying facts are not in dispute, and there is not even a question as to whether the employee refused to submit to medical or surgical treatment. Of course he did. The only question is whether the treatment he refused was “reasonably essential to promote his recovery.”⁵ While the treating physician understandably was not willing to say that the employee’s refusal to accept blood products, and his delay of surgery until his son’s arrival, were the difference between life and death, she said everything just short of that. In that regard, it must be remembered that the statutory test, established by the legislature as the test to be applied in these situations, is not whether the refused treatment would have saved the employee’s life. Rather, the test is, as just stated, whether the refused treatment was “reasonably essential to promote his recovery.”

[¶ 25] I will not repeat at length the portions of Dr. Parnell’s medical reports and testimony set forth in the majority opinion, but will note a few points that I believe clearly show that the refused treatment was just what the statute has in mind. Dr. Parnell’s initial impressions included the observation that the employee “obviously” was suffering from “free intraabdominal bleeding.” Dr. Parnell told the employee’s son upon his eventual arrival that “the decision not to allow blood products, including whole blood, packed red blood cells, plasma, and/or platelets, cryoprecipitate, etc, may indeed make it very difficult to resuscitate and manage [the employee].” Because she was limited to the use of Cell Saver, Dr. Parnell was able to re-transfuse only two liters of the employee’s blood, even though he had massive intraabdominal bleeding and had lost five liters of blood. It was Dr. Parnell’s opinion that the employee essentially bled to death.

[¶ 26] Dr. Parnell’s deposition testimony contains the following colloquies:

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Q. Okay. In this case, if you’d been able to use whatever blood products you wanted to, would it have increased the likelihood of survival?

A. I think it would have increased the likelihood of survival. I could not have guaranteed survival.

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Q. Well, let me ask you this: It changed your management, you would have used a different protocol; and just so I’m clear, that’s not — when you say it changed your management, it doesn’t just mean that it might have made it more difficult to you or changed what you did, it changed your management in the sense that you didn’t utilize what you would have otherwise considered optimal in terms of promoting recovery, correct?

A. I would have changed the timing of surgery. I probably would not have gotten all the CT scans, but I had time to do so because we were waiting on the son. And I would have taken him probably more directly to surgery, and I probably would have continued to use blood products throughout his course, whatever laboratory backup, you know, would have given me as to, you know, if the clotting factors are off or if platelet counts are low. I would have transfused those units.

But it was, like I said, a fork in the road. I went down a different fork, managed it the way that the patient requested, which is absolutely his right.

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Q. Okay. And the inability to transfuse, to use blood products, reduced the likelihood of survival in this ease, correct?

A. I think that that would have benefit-ted him, yes. Using blood products would have benefitted him.

Q. Okay. So it reduced the likelihood of survival?

A. Yes.

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Q. ... by how much?

A. I don’t know that I could ever quantify that, and I’ve said that before.

I think that I could not have guaranteed survival with an elderly gentleman like this with the fairly long transport time that he had, because I think he was out on 1-80, if I remember correctly. It was kind of a long period of time.

He presented hypotensive. He had already bled quite a bit. I don’t know that this entire process would have been reversible; but I agree with your statement that his odds of survival would have improved had I had all the arrows in my quiver, but I didn’t.

[¶27] Dr. Parnell’s observations were corroborated by Dr. Brauseh, who provided a consultation at Dr. Parnell’s request. Dr. Brauseh indicated the following in her report:

This is a 67-year-old male status post motor vehicle accident who sustained a severe splenic injury and very significant blood loss. This severe hemorrhage, we are not able to replace with blood products and replacing at this point with saline, albumin and even hetastarch is not helping this patient. We have him on high doses of both Norepinephrine and Dopamine in addition to rapid infusion of IV fluids without benefit. He has received calcium times two and bicarbonate times three. We are all afraid that the patient is dying and we have used the resources we are allowed to use to their fullest extent.

[¶ 28] Admittedly, these snippets are taken from the larger context of the entire record, but there is sufficient evidence here from which the hearing examiner could determine that blood product treatment and immediate surgery were reasonably essential to promote the employee’s recovery. When Dr. Parnell took the fork in the road mandated by the employee and his son, she clearly took the road less traveled. I would affirm the decision of the hearing examiner.

5 . The hearing examiner also concluded that the employee engaged in an injurious practice tending to impact his recovery, which is the first-stated test for forfeiture of benefits under the statute. While I agree that the employee's conduct also met this test, I believe these facts are more appropriately analyzed under the second-stated test of refusing to submit to medical or surgical treatment.