Your right to liberty (and privacy) secured by the Constitution includes your right to make informed decisions about your own medical care. So long as you are a competent adult, no other person has the right to trump your decision in order to save your life. Thus, if you are a competent adult, you have the right to refuse a life-saving blood transfusion even if your refusal means that you may die.

DebraG's answer is correct. If you are an adult (and not deemed incompetent) you can always choose to deny medical treatment. However, I just wanted to add some food for thought. If you are a Jehovah's Witness and are harmed by someone else, and you need a blood transfusion but refuse, the person who harmed you is not liable for harm caused by your refusal.

Risk of TRALI (transfusion related acute lung injury) can be reason enough to refuse.

Carmella, please don't let other people get to you. All participants to this site are valuable and it would be sad to say farewell to you. People may have a propensity to "politic" but participation is the real key. Please consider staying. You are an important part of society, including this one. Whatever you decide Please know that I wish you the best.

Anonymous: You said, "If you are a Jehovah's Witness and are harmed by someone else, and you need a blood transfusion but refuse, the person who harmed you is NOT LIABLE for harm caused by your refusal.“ You were discussing LIABILITY. For the alleged tortfeasor (D)to be liable for the harm, his conduct (act or omission) must have been the proximate CAUSE of the complained harm. For those who don’t know, the elements of a negligence claim are: 1) duty; 2) breach, 3) causation; 4) damages. Accordingly, BEFORE we can even consider the element of damages, we must first determine whether the D caused the harm. If D didn’t cause the harm, the issue of damages is moot and the inquiry ends. Because you cited a case that applied Mississippi law, let’s look to that jurisdiction to determine what the Plaintiff (P) must prove to establish the causation element, and hence, D‘s liability. See Glover v. JSU, 968 So. 2d 1267 (Miss. 2007). Reciting well established tort law concerning causation, the Mississippi Supreme Court said: “No citation of authority is necessary for the proposition that, to recover for injuries in a negligence claim, a plaintiff must prove that the defendant was negligent, and that such negligence was the proximate cause, or a proximate contributory cause, of the injuries…. “In order for an act of negligence to proximately cause the damage, the fact finder must find that the negligence was both the cause in fact and legal cause of the damage…. “A defendant's negligence is the cause in fact of a plaintiff's damage where the fact finder concludes that, but for the defendant's negligence, the injury would not have occurred. Stated differently, the cause in fact of an injury is ‘that cause which, in natural and continuous sequence unbroken by any efficient intervening cause, produces the injury and without which the injury would not have occurred.’ “A defendant's negligence which is found to be the cause in fact of a plaintiff's damage will also be the legal cause of that damage, provided the damage is the type, or within the classification, of damage the negligent actor should reasonably expect (or foresee) to result from the negligent act…. “Our precedent clearly establishes that, where the intervening cause of injury was foreseeable, it cannot supercede the liability of the defendant.” The D is not liable for the victim’s death if the victim’s refusal to have a blood transfusion was an intervening cause, independent of D’s wrongful conduct, that could not have been reasonably anticipated. In other words, the victim’s refusal to undergo a blood transfusion must be an abnormal, unpredictable, or highly improbable event. The causal connection between D’s conduct and the alleged harm is NOT broken if the intervening cause is one that might, in the natural and ordinary course of things, be anticipated as not entirely improbable. D is NOT relieved of liability if the alleged intervening act was reasonably foreseeable. A competent adult has a right secured by the Constitution to accept or reject medical treatment in accordance with the dictates of his/her own conscience. This fundamental right secured by the Constitution may not be abridged in the absence of a compelling state interest. Therefore, it is reasonably foreseeable that an injured person might refuse medical treatment in accordance with his/her fundamental right to do so. That refusal is not independent of D’s wrongful conduct, because it was D’s wrongful conduct that caused the lethal injury in the first place. BUT FOR the D’s negligent conduct that caused lethal injuries, the victim would not be in the untenable position of having to make critical decisions about her medical treatment. A victim’s refusal to undergo a blood transfusion after she has sustained a lethal injury is reasonably foreseeable and cannot serve to extinguish D’s liability. D’s negligence was indeed the proximate cause of the victim’s death. The legal concept that the negligent defendant must take his victim the way she is found stands for the proposition that damage awards are individualized, not standardized. Victims do not come in “one size fits all.” A speeding, inattentive driver rarely knows the special circumstances of his victims before he negligently plows his vehicle into their vehicle. The fact that he couldn’t possibly know that his victim was a Wall Street banker with an extraordinarily high income doesn’t relieve him from his liability for unusually high lost income damages. Likewise, the fact that he couldn’t possibly know that his victim was a Jehovah’s Witness who would refuse a blood transfusion after sustaining lethal injuries doesn’t relieve him from his liability for causing her death. Whether a negligent actor’s victim is a Wall Street Banker or a Jehovah’s Witness, the victim is the victim even though she might not be the one the actor would have chosen. The “eggshell skull” doctrine applies only to UNEXPECTED harms and has no application to a harm that is reasonably foreseeable. When a negligent actor inflicts lethal injuries upon his victim, he can expect that the victim may accept or refuse medical treatment in accordance with the victim’s constitutionally secured right to do so. Because the victim's refusal of a blood transfusion was not an unforeseeable independent intervening act that would extinguish D's liability for inflicting a lethal injury, it was D’s negligence that was the CAUSE in fact and the legal CAUSE of the victim’s DEATH. Whenever the DEATH of any person is CAUSED by any negligent act or omission, the Mississippi wrongful death statute creates a cause of action that ACCRUES at decedent’s DEATH in favor of the heirs listed in the statute. See Estate of England, 846 So.2d 1060 (Miss.App. 2003). In a suit for wrongful death, the DAMAGES are intended to compensate the statutory heirs for their losses resulting from the death. Id. The damages include funeral expenses, loss of support, and the like. A PLAINTIFF is under a duty AFTER suffering harm, if any, to exercise due care and to take reasonable steps to avoid or diminish the damages resulting from that harm. See Lake v. Gautreaux, 893 So. 2d 252 (Miss. App. 2004). In a wrongful death action, the PLAINTIFF is the statutory heir(s) or a personal representative acting for the benefit of the statutory heir(s). Because a PLAINTIFF’s duty to mitigate damages does NOT arise until AFTER the cause of action accrues--and a wrongful death action does not accrue until the victim is DEAD--anything the decedent did or didn’t do before her death isn’t relevant to the issue of wrongful death damages. Thus, it is plausible that D could argue that the PLAINTIFF (the statutory heir) could have mitigated losses occasioned by the victim's death by purchasing a less expensive coffin, but the D cannot go back in time before the compensable injury (the DEATH) occurred and relitigate the issue of causation under the guise of the “avoidable consequences” doctrine. Because D’s negligence was the cause in fact and the legal cause of the decedent’s death, any argument that the decedent could have avoided her own death is simply an impermissible back-door attack on the causation issue. The Munn case is a product of incompetence of the Plaintiffs’ attorney, plain and simple. It’s very sad for the decedent’s statutory heirs that their attorney didn’t understand that THEY were the plaintiffs and, as such, the ONLY damages that they were required to mitigate were the damages they were allowed under the wrongful death statute as the result of the death. The Plaintiffs’ attorney failed to adequately argue the First Amendment issue (see opinion: “This argument is not fleshed out…”) and totally failed to argue the due process issue. Without the existence of an adequately developed federal question susceptible to meaningful review, all practitioners know that the U.S. Supreme Court will deny cert. If you want to read a better reasoned and more recent judicial opinion that cites the Munn case and rejects its holding, check here: Williams v. Bright http://www.jehovah.to/gen/legal/state/williams.htm

DebraG: Your argument is circular, and therefore flawed. Before I point out your error, allow me to outline the absurdity of your conclusion for the lay people (i.e. non legal professionals) on AB by paraphrasing your argument. What you are saying is if you negligently cause a superficial cut on me (which could be stopped by applying pressure for a few minutes), and I choose not to apply pressure and let it it bleed for 20 hours, thus causing me to bleed out, you are liable for wrongdul death despite the fact that death could have easily been avoided and my injury was not life threatening. Now lets look at your argument. The quoted law is 100% correct, and I see no need to comment on it. The following paragraph after the quotes states: "The D is not liable for the victim’s death if the victim’s refusal to have a blood transfusion was an intervening cause, independent of D’s wrongful conduct, that could not have been reasonably anticipated. In other words, the victim’s refusal to undergo a blood transfusion must be an abnormal, unpredictable, or highly improbable event. The causal connection between D’s conduct and the alleged harm is NOT broken if the intervening cause is one that might, in the natural and ordinary course of things, be anticipated as not entirely improbable. D is NOT relieved of liability if the alleged intervening act was reasonably foreseeable." I completely agree with this statement as well. Of course, is it predictable that a person would choose death over a blood transfusion? The answer is clearly no. In fact, the trial court in the Williams v. Bright case recognized as much, and for that reason gave a limiting jury instruction. Your argument is that we are not to look at the reasonable person; rather, we are to look at the reasonable Jehovah's Witness. This is where your argument gets circular. The issue at hand is whether a Jehovah's Witness must mitigate his damages by having a blood transfusion. You now try to answer that question by saying that we should look at the reasonable Jehovah's Witness. However, we should only look at the reasonable Jehovah's Witness over the reasonable person if a Jehovah's Witness does not have a duty to mitigate by having a blood transfusion. Thus, your argument is only true if we presume that a Jehovah's Witness does not need to mitigate, which means we are presuming an answer for the very issue we are seeking to answer. You go on by saying: "A competent adult has a right secured by the Constitution to accept or reject medical treatment in accordance with the dictates of his/her own conscience. This fundamental right secured by the Constitution may not be abridged in the absence of a compelling state interest. Therefore, it is reasonably foreseeable that an injured person might refuse medical treatment in accordance with his/her fundamental right to do so. That refusal is not independent of D’s wrongful conduct, because it was D’s wrongful conduct that caused the lethal injury in the first place. BUT FOR the D’s negligent conduct that caused lethal injuries, the victim would not be in the untenable position of having to make critical decisions about her medical treatment. A victim’s refusal to undergo a blood transfusion after she has sustained a lethal injury is reasonably foreseeable and cannot serve to extinguish D’s liability. D’s negligence was indeed the proximate cause of the victim’s death." The first problem with this paragraph is that it is irrelevant. Just because we have the right to do something does not mean the duty to mitigate does not apply. If this were true, it would make the duty to mitigate an empty rule. For example, if you contract to purchase grade A apples from me and I supply grade B, which can only be sold for less, your duty would be to mitigate by selling the apples. You certainly have the right to sell or not sell the apples, but if you want to recover, you must sell the apples. The second problem is contained in the following sentence "A victim’s refusal to undergo a blood transfusion after she has sustained a lethal injury is reasonably foreseeable and cannot serve to extinguish D’s liability." Even if we accept this as true, our Jehovah's Witness did not sustain a lethal injury. The injuries are only lethal if you refuse the blood transfusion. Hence my hypo above. Your next paragraph is erroneous because it converges two unrelated elements. You write "The legal concept that the negligent defendant must take his victim the way she is found stands for the proposition that damage awards are individualized, not standardized. Victims do not come in “one size fits all.” A speeding, inattentive driver rarely knows the special circumstances of his victims before he negligently plows his vehicle into their vehicle. The fact that he couldn’t possibly know that his victim was a Wall Street banker with an extraordinarily high income doesn’t relieve him from his liability for unusually high lost income damages. Likewise, the fact that he couldn’t possibly know that his victim was a Jehovah’s Witness who would refuse a blood transfusion after sustaining lethal injuries doesn’t relieve him from his liability for causing her death. Whether a negligent actor’s victim is a Wall Street Banker or a Jehovah’s Witness, the victim is the victim even though she might not be the one the actor would have chosen. " This is true, but these are unrelated concepts. Whether a victim is a banker, a lawyer, a doctor, or a bum goes to the measure of damages. Whether or not a person mitigates their damages by having a blood transfusion goes to the issue of liability. You go on to talk about another unrelated topic, the "eggshell skull" doctrine. You state: "The 'eggshell skull' doctrine applies only to UNEXPECTED harms and has no application to a harm that is reasonably foreseeable." Of course, this is not true. This doctrine states that a tortfeasor is liable for damages, even if the victim has a pre-existing phsycial condition that exacerbates the harm, whether that condition was known or not. Thus, even if the harm was EXPECTED, we still take our victim as they are. You conclude that paragraph by stating: "When a negligent actor inflicts lethal injuries upon his victim, he can expect that the victim may accept or refuse medical treatment in accordance with the victim’s constitutionally secured right to do so." Again, you ignore the fact that every actor has the right to choose whether or not they mitigate. However, choosing not to mitigate is a bar to recovery. This conclusion also requires you to adopt a rule that the "eggshell skull" doctrine applies to more than just pre-existing PHYSICAL conditions. However, even your Williams v. Bright case acknowledges that "the doctrine is generally construed in the light of pre-existing physical or physiological conditions." There is no doubt that the majority of jurisdictions only apply the "eggshell skull" doctrine to physical conditions. Thus, even if it were held that the Constitution prevents a Jehovah's Witness from mitigating by having a blood transfusion, the doctrine would still not apply because religion is not a physical condition. Your analysis of the Mississippi Wrongful Death statute is also fatally flawed. You wrote: "Whenever the DEATH of any person is CAUSED by any negligent act or omission, the Mississippi wrongful death statute creates a cause of action that ACCRUES at decedent’s DEATH in favor of the heirs listed in the statute. See Estate of England, 846 So.2d 1060 (Miss.App. 2003)." You go on to say: "In a wrongful death action, the PLAINTIFF is the statutory heir(s) or a personal representative acting for the benefit of the statutory heir(s). Because a PLAINTIFF’s duty to mitigate damages does NOT arise until AFTER the cause of action accrues--and a wrongful death action does not accrue until the victim is DEAD--anything the decedent did or didn’t do before her death isn’t relevant to the issue of wrongful death damages." Now here is your flaw. The Mississippi Wrongful Death statute, like the wrongful death statutes of most states, only creates a cause of action for an heir where the decedent would have had a cause of action had they not died. The Mississippi Statute states in relevant part: "Whenever the death of any person ... shall be caused by any real, wrongful or negligent act or omission, or by such unsafe machinery, way or appliances as would, if death had not ensued, have entitled the party injured or damaged thereby to maintain an action and recover damages in respect thereof...." Miss. Code Ann. 11-7-13. Thus, since the decedent could have only recovered, if alive, by mitigating damages, the heirs also can only recover if the decedent mitigated. You also err by stating that "a PLAINTIFF’s duty to mitigate damages does NOT arise until AFTER the cause of action accrues." The duty to mitigate arises after the wrongful act. In fact. the ultimate goal of the duty is to prevent the cause of action from accruing. For example, using another contract hypo, if I breach a contract by failing to pay for and take possesion of an item, the duty to mitigate arises upon my breach. If you can sell the good for more than I was going to pay, you have a duty to do so (or to attempt to), even though the sale would prevent you from recovering against me. As a practical matter, the cause of action usually accrues at the time of the wrongful act, so this is usually a distinction without a difference. It also should be noted that you cited the correct rule initially ("A PLAINTIFF is under a duty AFTER suffering harm, if any..."), but then erroneously refer to the time of accrual. You reiterate your error in your conclusion: "The Munn case is a product of incompetence of the Plaintiffs’ attorney, plain and simple. It’s very sad for the decedent’s statutory heirs that their attorney didn’t understand that THEY were the plaintiffs and, as such, the ONLY damages that they were required to mitigate were the damages they were allowed under the wrongful death statute as the result of the death." Again, the wrongful death statute only allows the heirs to recover where the decedent could have recovered had she survived. If the decedent did not mitigate, the wrongful death statute prevents teh heirs from recoving for the avoidable consequences. "The Plaintiffs’ attorney failed to adequately argue the First Amendment issue (see opinion: “This argument is not fleshed out…”) and totally failed to argue the due process issue. Without the existence of an adequately developed federal question susceptible to meaningful review, all practitioners know that the U.S. Supreme Court will deny cert." Yes, but the 5th Circuit did rule on the issue.

ANONYMOUS WROTE: Your argument is circular, and therefore flawed. Before I point out your error, allow me to outline the absurdity of your conclusion for the lay people (i.e. non legal professionals) on AB by paraphrasing your argument. What you are saying is if you negligently cause a superficial cut on me (which could be stopped by applying pressure for a few minutes), and I choose not to apply pressure and let it it bleed for 20 hours, thus causing me to bleed out, you are liable for wrongful death despite the fact that death could have easily been avoided and my injury was not life threatening. MY RESPONSE: My “argument” is neither circular nor flawed to an individual who understands that a claim based on negligence must be analyzed in distinct stages. The essential elements of a negligence claim (which must be analyzed in distinct stages) are duty, breach, cause, and damages. If the negligent tortfeasor CAUSED the plaintiff’s injury or death, then the negligent tortfeasor is liable and must pay damages. The body of law that applies to the element of causation is separate and distinct from the body of law that applies to the measure of damages. Similarly, the measure of damages for personal injury is different than the measure of damages for wrongful death. What I am saying is that the “doctrine of avoidable consequences” doesn’t apply to the issue of liability. The failure to mitigate is a defense to the amount of damages that the plaintiff is entitled to recover; it is NOT a defense to the ultimate issue of liability. Because a claim based on negligence must be analyzed in distinct stages, we don’t even get to the issue of damages unless it is first found that the tortfeasor’s negligent conduct CAUSED the harm. With respect to your hypothetical, if the plaintiff proves the essential elements of duty and breach of duty, I am negligent. I am liable for your death if my negligence CAUSED your death. The plaintiff in your hypothetical wrongful death action would NOT be you. The plaintiff would be your statutory heirs under the applicable wrongful death statute. They would have the burden to prove by the preponderance of the evidence that my negligence CAUSED your death. To meet their burden, they would apply long-standing rules of tort law with respect to causation to the facts at issue. As a defense to the element of causation, I would likely argue that your failure to apply pressure to the wound to stop the bleeding was a SUPERSEDING CAUSE of your death thus extinguishing my liability. I might argue that it is abnormal, unpredictable, or highly improbable that a person would bleed to death from a “superficial cut” and your death was therefore unforeseeable. Even if a person failed to apply pressure to a superficial cut, the blood would normally coagulate as part of the body’s natural healing process and the wound would stop bleeding by itself. How do we explain the consequences that you described in your hypothetical? How is it possible for you to bleed to death from a superficial cut? Perhaps you suffer from hemophilia. And, how do we explain your failure to apply pressure to the wound or to otherwise seek medical assistance for a wound that would not stop bleeding? Perhaps you suffer from a dissociative disorder (mental condition) that causes you to escape reality. Thus, you were probably unaware of the lethal aspects of the non-stop bleeding wound that I inflicted upon you. Under those circumstances, your statutory heirs would apply the universal doctrine of tort and argue that I (the tortfeasor) must take my victim (you) the way I found you. They would argue that it is reasonably foreseeable that a person who suffers from both hemophilia and a dissociative disorder would bleed to death because such a person would be unaware of the lethal consequences of the cut. They would argue that your failure to apply pressure to the wound was NOT an independent, intervening cause that breaks the causal connection between my negligence and the harm suffered. They would argue, but for my negligence, their beloved unaware hemophiliac decedent would not have bled to death. The issue of causation would be submitted to the jury. If the jury finds that my negligence caused your death, then I am liable to the Plaintiff (your statutory heirs) for losses occasioned by your death. In this distinct and separate stage of the claim, we apply the body of law concerning the measure damages in wrongful death claims. You, as the decedent, are NOT the party to this action. Your statutory heirs who brought the wrongful death action are the parties to the action. THEY are the parties who are under the duty to mitigate damages. Again, the failure to mitigate is a defense to the amount of damages that your statutory heirs are entitled to recover to compensate them for their losses arising from your death; it is NOT a defense to the ultimate issue of liability. * * * ANONYMOUS WROTE: Of course, is it predictable that a person would choose death over a blood transfusion? The answer is clearly no…. MY RESPONSE: Your answer is incorrect. A court may take judicial notice that people who face certain or possible death routinely refuse blood transfusions and other medical interventions. Thousands of people from every niche of society make life and death decisions in our nation’s emergency rooms and hospitals on a daily basis. It is indeed foreseeable that a person would refuse a blood transfusion or some other form of medical intervention based on his or her personal assessment of the risks involved. Regardless of the possible risk involved, whether it be anaphylactic shock, viral infection, or eternal damnation, all persons in the United States have a right secured by the Constitution to accept or reject medical treatment. * * * ANONYMOUS WROTE: Your argument is that we are not to look at the reasonable person; rather, we are to look at the reasonable Jehovah's Witness. This is where your argument gets circular. The issue at hand is whether a Jehovah's Witness must mitigate his damages by having a blood transfusion. You now try to answer that question by saying that we should look at the reasonable Jehovah's Witness. However, we should only look at the reasonable Jehovah's Witness over the reasonable person if a Jehovah's Witness does not have a duty to mitigate by having a blood transfusion. Thus, your argument is only true if we presume that a Jehovah's Witness does not need to mitigate, which means we are presuming an answer for the very issue we are seeking to answer. MY RESPONSE: My argument is that the “reasonable person standard” does not apply when we analyze the element of CAUSATION. At this separate and distinct stage of the analysis, the only question is whether the negligent actor CAUSED the decedent’s death. Accordingly, we apply the law that pertains to “cause in fact” and “proximate cause.” * * * ANONYMOUS WROTE: You go on by saying: "A competent adult has a right secured by the Constitution to accept or reject medical treatment in accordance with the dictates of his/her own conscience. This fundamental right secured by the Constitution may not be abridged in the absence of a compelling state interest. Therefore, it is reasonably foreseeable that an injured person might refuse medical treatment in accordance with his/her fundamental right to do so. That refusal is not independent of D’s wrongful conduct, because it was D’s wrongful conduct that caused the lethal injury in the first place. BUT FOR the D’s negligent conduct that caused lethal injuries, the victim would not be in the untenable position of having to make critical decisions about her medical treatment. A victim’s refusal to undergo a blood transfusion after she has sustained a lethal injury is reasonably foreseeable and cannot serve to extinguish D’s liability. D’s negligence was indeed the proximate cause of the victim’s death." The first problem with this paragraph is that it is irrelevant. Just because we have the right to do something does not mean the duty to mitigate does not apply. If this were true, it would make the duty to mitigate an empty rule. For example, if you contract to purchase grade A apples from me and I supply grade B, which can only be sold for less, your duty would be to mitigate by selling the apples. You certainly have the right to sell or not sell the apples, but if you want to recover, you must sell the apples. The second problem is contained in the following sentence "A victim’s refusal to undergo a blood transfusion after she has sustained a lethal injury is reasonably foreseeable and cannot serve to extinguish D’s liability." Even if we accept this as true, our Jehovah's Witness did not sustain a lethal injury. The injuries are only lethal if you refuse the blood transfusion. Hence my hypo above. MY RESPONSE: The only “problem” that I can perceive is your inability, thus far, to grasp the concept that the failure to mitigate is a defense to the amount of damages that the plaintiff is entitled to recover; it is NOT a defense to the ultimate issue of liability. Again, the analysis that applies to the causation element is separate and distinct from the analysis that applies to the measure of damages. Therefore, the information I provided was indeed relevant because, when you apply the applicable law with respect to cause in fact and proximate cause, the negligent actor is liable for the victim’s death. The plaintiffs in a wrongful death action are the decedent’s statutory heirs. They are the ones who have the duty to mitigate damages. The measure of damages for a wrongful death action are, in general, loss of support, loss of love and companionship, and funeral and burial expenses. I used the word “lethal” because it means “capable of causing death.” Thus, a lethal injury is an injury capable of causing death. In your hypothetical above, the “superficial cut” was an injury capable of causing death because, in your hypo, it did in fact cause death. The duty to mitigate is not an empty rule. You simply need to apply it at the appropriate stage of the analysis for a wrongful death claim and place that duty upon the plaintiff (the decedent’s statutory heirs). The decedent has NO DUTY to mitigate damages for a wrongful death action because 1) she’s DEAD; 2) she’s not a party to the action; and 3) her conduct took place BEFORE death. In a wrongful death action, the duty to mitigate does not arise until AFTER the decedent’s death. * * * ANONYMOUS WROTE: Your next paragraph is erroneous because it converges two unrelated elements. You write "The legal concept that the negligent defendant must take his victim the way she is found stands for the proposition that damage awards are individualized, not standardized. Victims do not come in “one size fits all.” A speeding, inattentive driver rarely knows the special circumstances of his victims before he negligently plows his vehicle into their vehicle. The fact that he couldn’t possibly know that his victim was a Wall Street banker with an extraordinarily high income doesn’t relieve him from his liability for unusually high lost income damages. Likewise, the fact that he couldn’t possibly know that his victim was a Jehovah’s Witness who would refuse a blood transfusion after sustaining lethal injuries doesn’t relieve him from his liability for causing her death. Whether a negligent actor’s victim is a Wall Street Banker or a Jehovah’s Witness, the victim is the victim even though she might not be the one the actor would have chosen. " This is true, but these are unrelated concepts. Whether a victim is a banker, a lawyer, a doctor, or a bum goes to the measure of damages. Whether or not a person mitigates their damages by having a blood transfusion goes to the issue of liability. MY RESPONSE: No, you’re wrong. Again, you fail to grasp the concept that the failure to mitigate damages is a defense to the amount of damages that the plaintiff is entitled to recover; it is NOT a defense to the ultimate issue of liability. Again, if the actor’s negligence caused the death, the actor is liable. Once liability for the victim’s death is established, you cannot revisit the issue under the guise of applying the avoidable consequences doctrine. * * * ANONYMOUS WROTE: You go on to talk about another unrelated topic, the "eggshell skull" doctrine. You state: "The 'eggshell skull' doctrine applies only to UNEXPECTED harms and has no application to a harm that is reasonably foreseeable." Of course, this is not true. This doctrine states that a tortfeasor is liable for damages, even if the victim has a pre-existing phsycial condition that exacerbates the harm, whether that condition was known or not. Thus, even if the harm was EXPECTED, we still take our victim as they are. MY RESPONSE: I informed you of the “universal rule” of tort law that the tortfeasor must take his victim the way she is found. In response, YOU attempted to limit the “universal rule” to the “eggshell skull” doctrine as if they were exactly one and the same and only applied to pre-existing physical conditions. The eggshell skull doctrine originated from the hypothetical example that if you hit a person in the head, and that person suffered severe head trauma because that person had a skull as thin as an eggshell, you are still liable for the damages even though you could not have anticipated, foreseen or expected that the injury would be as severe as it was. You argued, because being a Jehovah’s Witness is not a pre-existing physical condition, my reliance on the universal rule was misplaced. I pointed out your error and now you’re accusing me of talking about “another unrelated topic.” Even if the “eggshell skull” doctrine is as limited as you insist (and I think you’re wrong), the doctrine is consistently applied to make the tortfeasor liable for the consequences of his negligent conduct even though the tortfeasor argues the harm was unexpected. I used the “universal rule” of tort law to impress upon you, if victim is a Jehovah’s Witness, the tortfeasor must take the victim as a Jehovah’s Witness. Accordingly, if you inflict a LETHAL injury upon a Jehovah’s Witness, it is reasonably foreseeable that the Jehovah’s Witness will refuse a possibly life-saving blood transfusion and die as a natural consequence of the LETHAL injury. The tortfeasor is responsible for all the consequences resulting from his negligence. * * * ANONYMOUS WROTE: You conclude that paragraph by stating: "When a negligent actor inflicts lethal injuries upon his victim, he can expect that the victim may accept or refuse medical treatment in accordance with the victim’s constitutionally secured right to do so." Again, you ignore the fact that every actor has the right to choose whether or not they mitigate. However, choosing not to mitigate is a bar to recovery. MY RESPONSE: Your assertion that choosing not to mitigate is a bar to recovery is false. First, you have to understand that the duty to mitigate DAMAGES refers to DAMAGES. “Wrongful DEATH” is a cause of action; it is not a measure of DAMAGE. If the actor owed a duty to the decedent and the actor breached that duty, the actor is negligent. If the actor’s negligence CAUSED the decedent’s DEATH, then the negligent actor is liable to the decedent’s statutory heirs for their damages for loss of support, for loss of love and companionship, and for funeral and burial expenses. The statutory heirs are the plaintiffs in the wrongful death action and THEY have a duty to mitigate THEIR damages. The decedent has no duty to avoid his or her own death in order to prevent a claim or cause of action from arising. The decedent can pull the plug on life support or refuse a life-saving blood transfusion any old time he or she wants. With respect to funeral and burial expenses, maybe the decedent’s statutory heirs flew in Elton John to sing at the funeral; maybe they threw a wake that cost a million dollars; and maybe they buried the decedent in a solid gold casket. Did they mitigate their damages for funeral and burial expenses? I don’t know. That might depend on whether the decedent is the local street sweeper or someone like Donald Trump. But even if a jury finds that the Plaintiffs failed to mitigate their damages for funeral and burial expenses, their failure to do so would not be a bar to recovery. The amount the Plaintiff requested would simply be reduced by the amount that the jury believed was unreasonably excessive under the circumstances. * * * ANONYMOUS WROTE: This conclusion also requires you to adopt a rule that the "eggshell skull" doctrine applies to more than just pre-existing PHYSICAL conditions. However, even your Williams v. Bright case acknowledges that "the doctrine is generally construed in the light of pre-existing physical or physiological conditions." There is no doubt that the majority of jurisdictions only apply the "eggshell skull" doctrine to physical conditions. Thus, even if it were held that the Constitution prevents a Jehovah's Witness from mitigating by having a blood transfusion, the doctrine would still not apply because religion is not a physical condition. MY RESPONSE: I’m not the one who insists on applying the inapplicable “eggshell skull” doctrine to issue under discussion. I’ve been forced to address your erroneous efforts to apply this inapplicable doctrine. If you are at fault when you injure someone, you are responsible for all the consequences, whether you could have foreseen them or not. The UNIVERSAL RULE of tort law requires the tortfeasor to take his victim the way he finds him. The UNIVERSAL RULE is far more expansive than the “eggshell skull” doctrine and applies to all victims, whoever they may be, and to all their circumstances not just their “physical conditions.” The Constitution is the SUPREME LAW of the LAND. It trumps all inferior laws that on their face or as applied violate the Constitution. Therefore, you cannot apply a state-imposed rule of law that requires a person to mitigate damages in a manner that unduly burdens or abridges rights secured by the Constitution or denies a person equal protection under the law. In other words, your attempt to penalize a Jehovah’s Witness for refusing a blood transfusion through the improper application of either the duty to mitigate damage or the eggshell skull doctrine in unavailing. Let’s look at another example. In Roe v. Wade, the Supreme Court held that the liberty secured by the Fourteenth Amendment is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. In a situation where a negligent tortfeasor inflicts a serious injury on a pregnant woman, her physicians might advise her to have an abortion in order to facilitate and hasten her own recovery. If she refuses to have an abortion, her damages will be substantially increased. Are you still going to argue that her failure to mitigate bars recovery? Are you still going to say that she can be penalized through the (inappropriate) application of an inferior rule of law because she exercised of a right secured by the Supreme Law of the Land? What if she does have the abortion in order to facilitate her own recovery. Has she really mitigated her damages if, as a consequence of the abortion, she suffers severe emotional anguish, severe depression, and loss of enjoyment of life for having been forced through no fault of her own to choose something she abhorred? The same applies to a Jehovah’s Witness. If the law forces a Jehovah’s Witness to choose between a blood transfusion or having his recovery barred, and on that basis she submits to a blood transfusion, has she truly mitigated her damages? No. Because she lives, the tortfeasor is liable for her mental anguish, depression, and loss of enjoyment of life for having been forced through no fault of her own to condemn herself to eternal damnation. Although the tortfeasor may have avoided a wrongful death claim because she lived, the tortfeasor is still on the hook for the personal injury claim. And, personal injury damage awards for persons recovering from extensive and near fatal injuries are generally much higher than damage awards for wrongful death. One thing that sticks in my mind from those ancient days of law school is my torts professor’s joke: “If you run over someone and he’s still living, back up.” From a tortfeasor’s perspective, a dead person generally costs less than a living injured person. * * * ANONYMOUS WROTE: Your analysis of the Mississippi Wrongful Death statute is also fatally flawed. You wrote: "Whenever the DEATH of any person is CAUSED by any negligent act or omission, the Mississippi wrongful death statute creates a cause of action that ACCRUES at decedent’s DEATH in favor of the heirs listed in the statute. See Estate of England, 846 So.2d 1060 (Miss.App. 2003)." You go on to say: "In a wrongful death action, the PLAINTIFF is the statutory heir(s) or a personal representative acting for the benefit of the statutory heir(s). Because a PLAINTIFF’s duty to mitigate damages does NOT arise until AFTER the cause of action accrues--and a wrongful death action does not accrue until the victim is DEAD--anything the decedent did or didn’t do before her death isn’t relevant to the issue of wrongful death damages." Now here is your flaw. The Mississippi Wrongful Death statute, like the wrongful death statutes of most states, only creates a cause of action for an heir where the decedent would have had a cause of action had they not died. The Mississippi Statute states in relevant part: "Whenever the death of any person ... shall be caused by any real, wrongful or negligent act or omission, or by such unsafe machinery, way or appliances as would, if death had not ensued, have entitled the party injured or damaged thereby to maintain an action and recover damages in respect thereof...." Miss. Code Ann. 11-7-13. Thus, since the decedent could have only recovered, if alive, by mitigating damages, the heirs also can only recover if the decedent mitigated. MY RESPONSE. You’re wrong again. The decedent, if she had lived, would have a personal injury claim against the negligent actor if the negligent actor CAUSED her injury. If the negligent actor caused her injury, then she would be entitled to the measure of damages available in personal injury actions. Those damages would include medical expenses, lost income, pain and suffering, and mental anguish including loss of enjoyment of life. Death is not a measure of damages; there is no duty to avoid death. Again, the failure to mitigate damages is a defense to the amount of damages that the plaintiff is entitled to recover; it is NOT a defense to the ultimate issue of liability. The Statute provides, if the DEATH was CAUSED by a negligent act or omission, the statutory heirs have a cause of action for wrongful death against the person who was negligent. Accordingly, if the actor’s negligence was the cause in fact and the proximate cause of the decedent’s death, the heirs may sue the negligent actor for wrongful death. There is no requirement that the decedent AVOID his or her own death. If the decedent refuses a blood transfusion and dies, how does that refusal constitute a failure to mitigate her damages for her personal injury claim? Obviously, if she dies, she has avoided the need for any further expensive medical care. She has avoided a whole heck of a lot of pain and suffering. She has avoided mental anguish and loss of enjoyment of life damages that she otherwise would have incurred if she had lived. By dying, her claim for personal injury has abated and the tortfeasor can hug and kiss his pocketbook and thank his lucky stars. * * * ANONYMOUS WROTE: You also err by stating that "a PLAINTIFF’s duty to mitigate damages does NOT arise until AFTER the cause of action accrues." The duty to mitigate arises after the wrongful act. In fact. the ultimate goal of the duty is to prevent the cause of action from accruing. For example, using another contract hypo, if I breach a contract by failing to pay for and take possesion of an item, the duty to mitigate arises upon my breach. If you can sell the good for more than I was going to pay, you have a duty to do so (or to attempt to), even though the sale would prevent you from recovering against me. As a practical matter, the cause of action usually accrues at the time of the wrongful act, so this is usually a distinction without a difference. It also should be noted that you cited the correct rule initially ("A PLAINTIFF is under a duty AFTER suffering harm, if any..."), but then erroneously refer to the time of accrual. MY RESPONSE: A cause of action for personal injury accrues when an actor negligently causes the injury. The injured party’s duty to mitigate the damages available in a personal injury action arises AFTER the injury is inflicted upon the injured party. The injured party has NO DUTY to avoid death under the duty to mitigate damages. Death is not a measure of damages. There is NO DUTY to avoid death in order to prevent a wrongful death action from accruing. When a person has a right secured by the Constitution, i.e., the right to terminate life support or the right to refuse medical treatment, the exercise of that right cannot be wrongful or tortious as a matter of law. A cause of action for wrongful death accrues at the decedent’s death. The decedent’s heirs’ duty to mitigate the damages available in a wrongful death action arises AFTER the death. * * * ANONYMOUS WROTE: You reiterate your error in your conclusion: "The Munn case is a product of incompetence of the Plaintiffs’ attorney, plain and simple. It’s very sad for the decedent’s statutory heirs that their attorney didn’t understand that THEY were the plaintiffs and, as such, the ONLY damages that they were required to mitigate were the damages they were allowed under the wrongful death statute as the result of the death." Again, the wrongful death statute only allows the heirs to recover where the decedent could have recovered had she survived. If the decedent did not mitigate, the wrongful death statute prevents teh heirs from recoving for the avoidable consequences. MY RESPONSE: Again, with respect to her own cause of action for personal injury, by dying she avoided ALL the damages she would have been entitled to if she had lived. What more could she possibly have done to mitigate her own damages for personal injury? Your analysis is flawed because you mistake DEATH as a measure of damage that must be mitigated with respect to an injured party’s personal injury claim. Again, death is not a measure of damage that anyone has a duty to mitigate or avoid. “Wrongful Death” is a cause of action. * * * ANONYMOUS WROTE: "The Plaintiffs’ attorney failed to adequately argue the First Amendment issue (see opinion: “This argument is not fleshed out…”) and totally failed to argue the due process issue. Without the existence of an adequately developed federal question susceptible to meaningful review, all practitioners know that the U.S. Supreme Court will deny cert." Yes, but the 5th Circuit did rule on the issue. MY RESPONSE: The Fifth Circuit may have upheld the decision, but they can only work with what they have been given. One of the most fundamental duties of an attorney is to accurately educate the Court concerning the law that applies to the facts. The Munns were a black couple traveling in the State of Mississippi on Christmas Day over 20 years ago when their vehicle was hit by another vehicle which was being operated negligently by another driver. The Munns had a very bad lawyer and a very unfriendly forum. They were denied justice, pure and simple. The Munn opinion can’t stand for anything other than a disgusting aberration. We should be ashamed to find it in our law books.

DebraG wrote: What I am saying is that the “doctrine of avoidable consequences” doesn’t apply to the issue of liability. The failure to mitigate is a defense to the amount of damages that the plaintiff is entitled to recover; it is NOT a defense to the ultimate issue of liability. Because a claim based on negligence must be analyzed in distinct stages, we don’t even get to the issue of damages unless it is first found that the tortfeasor’s negligent conduct CAUSED the harm. Response: Let’s clarify what is meant by liability. Liability only exists once you prove all four elements of negligence. Of course, your “distinct stages” argument is not exactly true. The first two elements are duty and breach. Obviously you must establish there was a duty before you can establish if there was a breach of the duty. However, all elements must be met. If there are no damages, there is no need to ask whether there was a duty or breach, because liability requires that all elements be met. The doctrine of avoidable consequences is an affirmative defense. An affirmative defense (for those that don’t know) is basically saying “yes I did it, but I am not liable for some legally recognizable reason.” For example, self defense is an affirmative defense. If I am being sued for killing a person and claim self defense, I am not saying that I didn’t do it. Rather, I am saying that I did it but I am not LIABLE because the law recognizes my right to kill in that circumstance. The same is true for the doctrine of avoidable consequence. With this defense, the tortfeasor is saying that he did breach a duty an caused damages, but he is NOT LIABLE for some or all of the harm because the victim did not mitigate their damages when they could have. DebraG wrote: With respect to your hypothetical, if the plaintiff proves the essential elements of duty and breach of duty, I am negligent. I am liable for your death if my negligence CAUSED your death. Response: Yes, if you breach a duty you are negligent, but you are only LIABLE if your negligence causes damages, and there is no legally justifiable defense to your actions. DebraG wrote: The plaintiff in your hypothetical wrongful death action would NOT be you. The plaintiff would be your statutory heirs under the applicable wrongful death statute. They would have the burden to prove by the preponderance of the evidence that my negligence CAUSED your death. To meet their burden, they would apply long-standing rules of tort law with respect to causation to the facts at issue. Response: Yes, and the plaintiff would also have to prove damages in order to recover. The wrongful death statute only allows an heir to recover for damages if the decedent could have recovered had she survived. If the decedent would have mitigated her damages by having a blood transfusion, she would not have died. Thus, the heirs cannot recover because the decedent could not have recovered had she survived. DebraG: As a defense to the element of causation, I would likely argue that your failure to apply pressure to the wound to stop the bleeding was a SUPERSEDING CAUSE of your death thus extinguishing my liability. I might argue that it is abnormal, unpredictable, or highly improbable that a person would bleed to death from a “superficial cut” and your death was therefore unforeseeable. Response: Good argument. Just as it is unforeseeable that a person would choose to die instead of having a blood transfusion. Thus, the failure to have the blood transfusion is also a SUPERCEDING CAUSE. DebraG: Even if a person failed to apply pressure to a superficial cut, the blood would normally coagulate as part of the body’s natural healing process and the wound would stop bleeding by itself. Response: That would depend on where the cut is. People who kill themselves by splitting their wrist due so with a vertical superficial cut. Those who fail due so by making a horizontal superficial cut. DebraF wrote: The issue of causation would be submitted to the jury. If the jury finds that my negligence caused your death, then I am liable to the Plaintiff (your statutory heirs) for losses occasioned by your death. In this distinct and separate stage of the claim, we apply the body of law concerning the measure damages in wrongful death claims. Response: Yes, and the affirmative defense of failure to mitigate would be raised, and the defendant would be found not liable. DebraG wrote: You, as the decedent, are NOT the party to this action. Your statutory heirs who brought the wrongful death action are the parties to the action. THEY are the parties who are under the duty to mitigate damages. Again, the failure to mitigate is a defense to the amount of damages that your statutory heirs are entitled to recover to compensate them for their losses arising from your death; it is NOT a defense to the ultimate issue of liability. Response: Again, read the wrongful death statute. THE ONLY DAMAGES THAT THE HEIRS CAN RECOVER ARE THOSE DAMAGES THAT THE DECEDENT COULD HAVE RECOVERED HAD SHE SURVIVED. The reason we have wrongful death statutes is because otherwise there would never be standing for such a claim. DebraG wrote: Your answer is incorrect. A court may take judicial notice that people who face certain or possible death routinely refuse blood transfusions and other medical interventions. Thousands of people from every niche of society make life and death decisions in our nation’s emergency rooms and hospitals on a daily basis. It is indeed foreseeable that a person would refuse a blood transfusion or some other form of medical intervention based on his or her personal assessment of the risks involved. Regardless of the possible risk involved, whether it be anaphylactic shock, viral infection, or eternal damnation, all persons in the United States have a right secured by the Constitution to accept or reject medical treatment. Response: And all tort claimants must MITIGATE THEIR DAMAGES if they want to be able to recover in a court of law. I do not disagree that you have a right to refuse treatment, but that does not answer the question as to whether you have to mitigate your damages. DebraG wrote: My argument is that the “reasonable person standard” does not apply when we analyze the element of CAUSATION. At this separate and distinct stage of the analysis, the only question is whether the negligent actor CAUSED the decedent’s death. Accordingly, we apply the law that pertains to “cause in fact” and “proximate cause.” Response: Okay, but once you analyze damages; would you agree that the issue of mitigation comes up? If the decedent did not mitigate, there is no liability for the damages that could have been avoided had you mitigated. Since all elements must be met, I don’t care if you look at each element separately or together. But in order to recover you must establish that all elements are met and no affirmative defense applies. DebraG wrote: The only “problem” that I can perceive is your inability, thus far, to grasp the concept that the failure to mitigate is a defense to the amount of damages that the plaintiff is entitled to recover; it is NOT a defense to the ultimate issue of liability. Response: No, the only problem is you don’t understand what “liability” means, and you don’t understand what an affirmative defense is. Let’s stipulate that the tortfeasor breached a duty and caused the JH’s death. What is the tortfeasor liable for? Well, all damages that resulted except those that could have been avoided by mitigation. There is no dispute about the elements of negligence; the dispute is about the affirmative defense of failure to mitigate. DebraG wrote: Again, the analysis that applies to the causation element is separate and distinct from the analysis that applies to the measure of damages. Therefore, the information I provided was indeed relevant because, when you apply the applicable law with respect to cause in fact and proximate cause, the negligent actor is liable for the victim’s death. Response: In an affirmative defense the tortfeasor admits the elements of the cause of action. Thus, it is irrelevant. Yes, the tortfeasor breached a duty and caused damages, but the tortfeasor is only liable for those damages that could not have been avoided. DebraG: The plaintiffs in a wrongful death action are the decedent’s statutory heirs. They are the ones who have the duty to mitigate damages. The measure of damages for a wrongful death action are, in general, loss of support, loss of love and companionship, and funeral and burial expenses. Response: Again, read the wrongful death statute. The heirs do not have standing to bring a cause of action for lost wages or funeral expenses without the statute because they were not harmed. The heirs have not right to the support, nor do they have a duty to pay the expenses. However, the statute provides standing to sue in the place of the decedent. Loss of companionship and love is generally not covered by the statute, but is actionable as a distinct tort. An heir does have standing to bring a claim for loss of companionship because the heir is actually harmed in that case. DebraG: The duty to mitigate is not an empty rule. You simply need to apply it at the appropriate stage of the analysis for a wrongful death claim and place that duty upon the plaintiff (the decedent’s statutory heirs). The decedent has NO DUTY to mitigate damages for a wrongful death action because 1) she’s DEAD; 2) she’s not a party to the action; and 3) her conduct took place BEFORE death. In a wrongful death action, the duty to mitigate does not arise until AFTER the decedent’s death. Response: Again, READ THE WRONGFUL DEATH STATUTE. A suit for wrongful death gives standing to sue in the place of the decedent. The plaintiffs are not suing for their harms, but for the harms done to the decedent. Likewise, pursuant to the clear language of the statute, they can only recover what the decedent could have recovered had she survived. Again, the duty to mitigate is an affirmative defense. We do not even need to reach the issue of duty, breach, and causation because those elements are not in dispute. DebraG wrote: No, you’re wrong. Again, you fail to grasp the concept that the failure to mitigate damages is a defense to the amount of damages that the plaintiff is entitled to recover; it is NOT a defense to the ultimate issue of liability. Again, if the actor’s negligence caused the death, the actor is liable. Once liability for the victim’s death is established, you cannot revisit the issue under the guise of applying the avoidable consequences doctrine. Response: You obviously don’t understand what liability means. Liability refers to whether or not an actor has to recompense for harm. Is a government actor who is protected by immunity liable for damages if they breach a duty and cause damages? No. But according to your erroneous theory, he would be. The duty to mitigate is a defense to liability. DebraG wrote: I informed you of the “universal rule” of tort law that the tortfeasor must take his victim the way she is found. In response, YOU attempted to limit the “universal rule” to the “eggshell skull” doctrine as if they were exactly one and the same and only applied to pre-existing physical conditions. The eggshell skull doctrine originated from the hypothetical example that if you hit a person in the head, and that person suffered severe head trauma because that person had a skull as thin as an eggshell, you are still liable for the damages even though you could not have anticipated, foreseen or expected that the injury would be as severe as it was. You argued, because being a Jehovah’s Witness is not a pre-existing physical condition, my reliance on the universal rule was misplaced. I pointed out your error and now you’re accusing me of talking about “another unrelated topic.” Even if the “eggshell skull” doctrine is as limited as you insist (and I think you’re wrong), the doctrine is consistently applied to make the tortfeasor liable for the consequences of his negligent conduct even though the tortfeasor argues the harm was unexpected. I used the “universal rule” of tort law to impress upon you, if victim is a Jehovah’s Witness, the tortfeasor must take the victim as a Jehovah’s Witness. Accordingly, if you inflict a LETHAL injury upon a Jehovah’s Witness, it is reasonably foreseeable that the Jehovah’s Witness will refuse a possibly life-saving blood transfusion and die as a natural consequence of the LETHAL injury. The tortfeasor is responsible for all the consequences resulting from his negligence. Response: The “universal rule” is the eggshell skull doctrine. But even if I assume otherwise, your whole argument fails to address the duty to mitigate. We take victims how we find them but we also put on them a duty to mitigate. The banker who has his car negligently damaged cannot collect lost income for the period his car is in the shop because he should have rented a car. Yes, we take him as we find him (i.e. allow him to collect his actual damages), but we still only allow him to collect those damages that cannot be mitigated. DebraG: Your assertion that choosing not to mitigate is a bar to recovery is false. First, you have to understand that the duty to mitigate DAMAGES refers to DAMAGES. “Wrongful DEATH” is a cause of action; it is not a measure of DAMAGE. If the actor owed a duty to the decedent and the actor breached that duty, the actor is negligent. If the actor’s negligence CAUSED the decedent’s DEATH, then the negligent actor is liable to the decedent’s statutory heirs for their damages for loss of support, for loss of love and companionship, and for funeral and burial expenses. The statutory heirs are the plaintiffs in the wrongful death action and THEY have a duty to mitigate THEIR damages. The decedent has no duty to avoid his or her own death in order to prevent a claim or cause of action from arising. The decedent can pull the plug on life support or refuse a life-saving blood transfusion any old time he or she wants. Response: Again, READ THE WRONGFUL DEATH STATUTE. The statute gives standing to heirs to sue in the place of the decedent. Without the statute the only thing an heir can sue for is the heir’s actual damages. Lost income of the decedent is not a damage of the heirs, neither are funeral expenses. The statute allows the heirs to sue even though they otherwise would not have standing, but they sue in the place of the decedent. DebraG: With respect to funeral and burial expenses, maybe the decedent’s statutory heirs flew in Elton John to sing at the funeral; maybe they threw a wake that cost a million dollars; and maybe they buried the decedent in a solid gold casket. Did they mitigate their damages for funeral and burial expenses? I don’t know. That might depend on whether the decedent is the local street sweeper or someone like Donald Trump. But even if a jury finds that the Plaintiffs failed to mitigate their damages for funeral and burial expenses, their failure to do so would not be a bar to recovery. The amount the Plaintiff requested would simply be reduced by the amount that the jury believed was unreasonably excessive under the circumstances. Response: Again, the funeral expenses are not damages of the heirs, they are damages of the decedent. The wrongful death statute allows the heirs to sue, but they sue in the place of the decedent. DebraG: I’m not the one who insists on applying the inapplicable “eggshell skull” doctrine to issue under discussion. I’ve been forced to address your erroneous efforts to apply this inapplicable doctrine. If you are at fault when you injure someone, you are responsible for all the consequences, whether you could have foreseen them or not. The UNIVERSAL RULE of tort law requires the tortfeasor to take his victim the way he finds him. The UNIVERSAL RULE is far more expansive than the “eggshell skull” doctrine and applies to all victims, whoever they may be, and to all their circumstances not just their “physical conditions.” Response: Where does this “universal rule” come from? You insist it is different than the eggshell skull doctrine, so provide some authority. The only argument you have made so far that there is some rule other than the eggshell skull doctrine is that your damages are not reduced just because the victim is a banker (or higher paid individual). This is just an element of negligence. The negligent tortfeasor is liable for the damages they cause, unless there is a legally cognizable defense (such as the duty to mitigate). DebraG: The Constitution is the SUPREME LAW of the LAND. It trumps all inferior laws that on their face or as applied violate the Constitution. Therefore, you cannot apply a state-imposed rule of law that requires a person to mitigate damages in a manner that unduly burdens or abridges rights secured by the Constitution or denies a person equal protection under the law. In other words, your attempt to penalize a Jehovah’s Witness for refusing a blood transfusion through the improper application of either the duty to mitigate damage or the eggshell skull doctrine in unavailing. Response: This was the exact argument made in Munn, and was rejected by the 5th Circuit, and had cert denied by the Supreme Court. If I was representing the Plaintiff, I would make the same argument as you. But as long as we follow stare decisis, most jurisdictions do not see this as an abridgment of freedom. DebraG: Let’s look at another example. In Roe v. Wade, the Supreme Court held that the liberty secured by the Fourteenth Amendment is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. In a situation where a negligent tortfeasor inflicts a serious injury on a pregnant woman, her physicians might advise her to have an abortion in order to facilitate and hasten her own recovery. If she refuses to have an abortion, her damages will be substantially increased. Are you still going to argue that her failure to mitigate bars recovery? Are you still going to say that she can be penalized through the (inappropriate) application of an inferior rule of law because she exercised of a right secured by the Supreme Law of the Land? Response: Your argument presupposes that precedent is not binding law. We are not arguing about an issue that has yet to be addressed. Yes, the Constitution is the supreme law of the land, but a federal appellate court has held that barring recover for failure to mitigate does not violate the Constitution. DebraG: You’re wrong again. The decedent, if she had lived, would have a personal injury claim against the negligent actor if the negligent actor CAUSED her injury. If the negligent actor caused her injury, then she would be entitled to the measure of damages available in personal injury actions. Those damages would include medical expenses, lost income, pain and suffering, and mental anguish including loss of enjoyment of life. Death is not a measure of damages; there is no duty to avoid death. Again, the failure to mitigate damages is a defense to the amount of damages that the plaintiff is entitled to recover; it is NOT a defense to the ultimate issue of liability. The Statute provides, if the DEATH was CAUSED by a negligent act or omission, the statutory heirs have a cause of action for wrongful death against the person who was negligent. Accordingly, if the actor’s negligence was the cause in fact and the proximate cause of the decedent’s death, the heirs may sue the negligent actor for wrongful death. There is no requirement that the decedent AVOID his or her own death. If the decedent refuses a blood transfusion and dies, how does that refusal constitute a failure to mitigate her damages for her personal injury claim? Obviously, if she dies, she has avoided the need for any further expensive medical care. She has avoided a whole heck of a lot of pain and suffering. She has avoided mental anguish and loss of enjoyment of life damages that she otherwise would have incurred if she had lived. By dying, her claim for personal injury has abated and the tortfeasor can hug and kiss his pocketbook and thank his lucky stars. Response: Again, read the statute. The heirs can only recover if the decedent could have recovered had she been injured but not died. You seem to want to construe the wrongful death statute as something more than a statute that creates standing. The plaintiff heirs are NOT SUING for their damages, they are suing for the damages of the decedent. DebraG: A cause of action for personal injury accrues when an actor negligently causes the injury. The injured party’s duty to mitigate the damages available in a personal injury action arises AFTER the injury is inflicted upon the injured party. The injured party has NO DUTY to avoid death under the duty to mitigate damages. Death is not a measure of damages. There is NO DUTY to avoid death in order to prevent a wrongful death action from accruing. When a person has a right secured by the Constitution, i.e., the right to terminate life support or the right to refuse medical treatment, the exercise of that right cannot be wrongful or tortious as a matter of law. A cause of action for wrongful death accrues at the decedent’s death. The decedent’s heirs’ duty to mitigate the damages available in a wrongful death action arises AFTER the death. Response: First, you keep arguing about rights protected by the Constitution, but I have already cited authority that says a constitutional right is not violated by requiring JH’s witness to mitigate by having a transfusion. Moreover, that is the central issue of this debate, so presuming it as true is illogical. That is like saying, let’s presume that he is negligent and now let’s address the issue of negligence. You are right that death is not a measure of damages, but a person that dies usually has greater damages than someone who does not. For example, one measure of damages is lost wages. To mitigate the damage of lost wages, the victim must take action that would return them to work sooner. A person who does not die will most likely return to work much sooner than the person who does die. However, you will note that the damages are those of the decedents, not the heirs. Again, the wrongful death statute only allows heirs to have standing to sue on behalf of the decedent. DebraG: Again, with respect to her own cause of action for personal injury, by dying she avoided ALL the damages she would have been entitled to if she had lived. What more could she possibly have done to mitigate her own damages for personal injury? Your analysis is flawed because you mistake DEATH as a measure of damage that must be mitigated with respect to an injured party’s personal injury claim. Again, death is not a measure of damage that anyone has a duty to mitigate or avoid. “Wrongful Death” is a cause of action. Response: Again, READ THE STATUTE. It allows heirs to sue in the place of the decedent. The measure of damages is the decedent’s damages, not the heir’s damages. I do not mistake death as a measure of damage, but that does not mean that a duty to avoid death does not exist. Again, if the damage is lost wages and not dying would lessen those lost wages, you have a duty to take steps to avoid death. If the measure of damages is funeral expenses, how can you avoid those expenses? Oh, by not dying. DebraG: The Fifth Circuit may have upheld the decision, but they can only work with what they have been given. One of the most fundamental duties of an attorney is to accurately educate the Court concerning the law that applies to the facts. The Munns were a black couple traveling in the State of Mississippi on Christmas Day over 20 years ago when their vehicle was hit by another vehicle which was being operated negligently by another driver. The Munns had a very bad lawyer and a very unfriendly forum. They were denied justice, pure and simple. The Munn opinion can’t stand for anything other than a disgusting aberration. We should be ashamed to find it in our law books. 0 Pts Response: First, your argument presupposes that courts don’t do their own research, which is not the case. Second, although it would be great if I could just dismiss the precedent that I disagreed with, but real life does not work that way.

A patient who is deemed medically competent can refuse any treatment s/he wants. If s/he has it written into his or her chart that s/he does not want blood transfusions then the hospital is legally required to honor that patient's request. The patient does not need to state a reason. Now, if this person is in a situation where a blood transfusion is a life saving sort of need, the doctors are going to try their best to convince them and, if possible, declare the patient incompetent. If the patient is declared medically incompetent they can give the transfusion against their will.

Trust me the hospital will pressure you for one if you refuse. There are some wonderful substitutes out there that the "professional field" not DOES openly offer. I suggest you contact the Kingdom Hall in your phone book and speak to an Elder. There will be one in charge of "blood transfusion" knowledge. My mom is a JW and I just went through this with her at the hospital.