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Emergency Room Physician Must Heed Patient’s Refusal

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MAY 3, 1999 VOLUME 6, NUMBER 44

Catherine Shine was terrified of doctors and hospitals, and with good reason. Ms. Shine had suffered from severe asthma her entire life, but controlled her condition largely through the use of prescription medications. Although she had lived through numerous attacks, they always seemed to follow the same course–rapid onset, followed by rapid remission. She had never been connected to a ventilator, and consistently opposed the use of a breathing tube.

In 1990, Ms. Shine suffered an asthmatic attack while visiting her sister. Although the symptoms began to ease as soon as she used her inhaler, her sister wanted her to go to nearby Massachusetts General Hospital for administration of oxygen. On the condition that she would be treated with oxygen only, Ms. Shine agreed.

Once at the hospital, Ms. Shine was first treated by use of an oxygen mask and medication, which she complained gave her a headache. When she announced that she would leave the hospital, a blood gas test was first administered; the test results indicated that Ms. Shine was “very sick” and the emergency room physician, Dr. Jose Vega, recommended that Ms. Shine be intubated. When she objected, he agreed to continue the oxygen mask instead.

Feeling like her breathing had eased significantly, Ms. Shine decided to leave the hospital. During a moment when the staff left her alone with her sister, the two of them ran toward the emergency room exit. Before they could get out of the hospital, they were forcibly apprehended by a physician and a security guard; Ms. Shine was returned to the emergency room, placed in four-point restraints and, forty-five minutes later, a breathing tube was inserted over her objections.

Although Ms. Shine was released from the hospital the next day, the experience traumatized her. She suffered from nightmares, cried constantly and missed several months of work. She became suspicious of doctors and swore that she would never again go to a hospital.

Two years later, Ms. Shine suffered another severe asthma attack. She refused to seek medical help, and especially to go to the hospital. Only after she became unconscious could her brother call for an ambulance; after two days of hospital treatment, she died.

Ms. Shine’s family brought suit against Dr. Vega, the emergency room physician, for allegedly causing Ms. Shine’s death. If her treatment wishes had been honored during the earlier admission, they argued, she would have been willing to seek treatment later when she needed it.

Dr. Vega responded by arguing that he had no obligation to follow Ms. Shine’s direction during her first admission. She had presented as an emergency patient, he reasoned, and therefore her consent was not required before treatment. Even though she actively objected to the treatment, he believed that he was permitted, even required, to treat her over her objections.

The Massachusetts Supreme Judicial Court disagreed. The patient’s right to refuse treatment, they ruled, exists even in an emergency situation. “[A] competent patient’s refusal to consent to medical treatment cannot be overridden whenever the patient faces a life-threatening situation,” said the judges.

Although consent is not necessary to treat a patient in an emergency, that does not mean that the physician may ignore the patient’s actual objections. The case was returned to the lower court, with instructions to let the jury decide whether Ms. Shine had been capable of refusing consent during the first hospitalization. Shine v. Vega, April 29, 1999.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.