A patient completes an advance directive specifically to avoid aggressive care; nevertheless, that patient is resuscitated and put on a ventilator. In addition to the obvious ethical concerns of such cases, hospitals also face potential legal repercussions for failing to follow advance directives.
“The growing threat of liability for value-discordant care illustrates how clinical ethics consultation advances not only improve patient care but also advance risk management and compliance objectives,” says Thaddeus Mason Pope, JD, PhD, HEC-C, professor of law at Mitchell Hamline School of Law in St. Paul, MN.
There are a growing number of successful wrongful prolongation of life lawsuits.1,2 “The point of the litigation is it’s a medical error to provide too much treatment, just as it is to provide too little treatment. If it’s clear they didn’t want it, then you shouldn’t provide it,” Pope says.
Wrongful prolongation of life lawsuits are proliferating in part because more people have created advance directives and also because of outreach efforts to promote physician orders for life-sustaining treatment (POLST) forms. More people are aware they can control their end-of-life care. “This has really sunk into the public consciousness,” Pope observes. “It’s perceived, in 2021, as a real violation of rights that might not have been perceived that way 10 years ago."
Recent successful lawsuits also have received significant media attention.3 All this means more families in this situation are consulting attorneys — and more attorneys are agreeing to pursue claims. “Plaintiff attorneys now have more confidence that there will actually be a judgment, settlement, or verdict of a size large enough to make it worth their time and effort,” Pope notes.
If an advance directive is disregarded, family members “are pursuing these cases now with vigor,” says Samuel D. Hodge, Jr., JD, a professor of legal studies at Temple University.4 When wrongful prolongation of life cases first occurred, courts ruled in favor of medical providers, reasoning that no cause of action existed.5-10 That has changed in recent years, with courts allowing the cases to proceed and for some type of remedy.11-15 “From an ethical point of view, a patient has the right to decide their end-of-life treatment, and that decision must be respected,” Hodge says.
Physicians, primarily focused on saving lives, do not always consider the legal implications of their actions, which may be contrary to the wishes of the patient. To avoid conflicts that can end up in court, ethicists can act as a liaison between the physician and the patient’s family. “If the physician does not understand the legal implications of his or her actions in prolonging life, an ethical or philosophical approach might be more successful,” Hodge suggests.
Somewhere along the line, healthcare providers might fail to honor patients’ expressed wishes. Here are some reasons it happens:
• Most people have not created an advance directive. The patient might have verbally expressed end-of-life wishes at some point to a surrogate or clinician, but never actually followed through and completed the advance directive in writing. “They are likely to get treatment that they don’t want,” Pope says.
• Even if the patient did complete an advance directive, it might be lost. Patients may give the advance directive to a healthcare provider, but somehow it is never entered in the system. “That is a systems communications problem,” Pope notes.
• Some clinicians erroneously assume if there is an advance directive, it means the patient is DNR. “That is a training issue,” Pope offers.
• Even if advance directives are in the chart, the document could be too vague to provide specific guidance. “Assuming we get past all of that, at that point there can still be problems,” Pope laments.
When the situation appears to be in hand, some surrogates disagree with the directive and provide contradictory instructions. In that situation, says Pope, “generally, clinicians will follow the surrogate. The surrogate is a human and they’re yelling, whereas the advance directive is just a document.”
No healthcare agent or surrogate can contradict the advance directive. “Unfortunately, the mere threat of a suit is sufficient to scare clinicians because they are afraid of not only liability but also of litigation itself,” Pope explains.
In other cases, a clinician disagrees with the patient’s expressed wishes. “Sometimes, it’s paternalism. The clinician may say, ‘Let’s go ahead and do it now, we can always undo it later,’” Pope reports.
Clinicians may reason life-sustaining treatment can be reversed, whereas withdrawing or withholding it is permanent. “That’s a fair judgment call to make when you are honestly unclear, and there’s a gray and fuzzy situation on whether the advance directive applies to the situation or what it means,” Pope admits. However, the situation is completely different if there is a clear advance directive, a POLST, and a surrogate all saying in unison not to intubate the patient. In that kind of case, clinicians have no grounds to intubate. “When there’s a conflict, typically, advance directives lean toward declining treatment, and surrogates lean toward demanding treatment,” Pope notes.
Ethicists can help by reminding clinicians of the appropriate standards for healthcare decision-making and of the relevant decision-making standards for incapacitated patients. Usually, these standards are not up for debate. “There is generally a really well-settled set of rules baked into the law and probably into their own institutional policies,” Pope says.
There are situations when the patient’s surrogate decision-maker is reluctant to assume the responsibilities he or she has been given, even after agreeing to serve in this capacity. “The legally authorized proxy may be in conflict with other family members, making it difficult to reach a decision,” says Robert S. Olick, JD, PhD, associate professor emeritus of bioethics and humanities at SUNY Upstate Medical University in Syracuse, NY. “In rare cases, the proxy may act from self-interest.”
A clear-cut example of this would be someone insisting on prolonging aggressive treatment to continue collecting Social Security benefits, even though the patient’s wishes are to refuse life support. It also is problematic if the patient made statements that contradict what is in the advance directive. “There may be uncertainty about whether the patient’s current circumstances fit with those the directive tried to anticipate and provide for,” Olick says.
New treatment options might have become available since the directive was written. “A careful consideration of the patient’s wishes, beyond the written document, is called for,” Olick says.
When the patient’s life is wrongfully prolonged for only a short time, and families have time to grieve, they are less likely to seek damages later, according to Olick. Also, the behavior of the hospital and healthcare team are critical. “When families feel respected and supported, even in the face of serious disagreement, they are less likely to look to the courts,” Olick offers.
Courts can be called on to intervene and resolve disputes about whether to withdraw life support before the decision is made. For example, the proxy might be making decisions that appear to conflict with the patient’s advance directive. “These cases are typically focused on a declaration of rights, on who has the ultimate voice in the decision, and whether the advance directive, if there is one, must be honored,” Olick explains.
To prevent conflicts, Hodge says ethicists should emphasize to clinicians how important it is, both from a moral and legal point of view, to honor patients’ end-of-life decisions. “One should not wait until the decision is at hand to talk about the problem. At that point, emotions are running high and logic may not prevail,” Hodge stresses.
Advance directives are critical tools to allow people to exercise autonomy and should be respected in most cases. “But they are imperfect instruments. A common misconception is that advance directives are binding documents that should simply be followed,” Olick says.
In reality, advance directives are designed to anticipate a future state of serious illness and disease and medical conditions in which the patient would want life support withdrawn or withheld. Ethics consultants can help interpret advance directives and mediate family disagreements. “But the ethics consultant’s role is advisory only. Decisional authority resides in the patient-proxy-physician relationship,” Olick cautions.
Proxies often are the preferred approach to advance care planning. That is because the proxy can apply personal knowledge of the patient’s values and wishes to the current medical circumstances to make the best possible decision. “The proxy stands in the shoes of the patient and engages in an informed consent dialogue,” Olick adds.
REFERENCES
- Lanzetta v. Montefiore Med. Ctr. (Bronx Sup Ct NY, Feb. 2021).
- Greenberg v. Montefiore Hosp. (Bronx Sup Ct NY, Feb. 5, 2021).
- Span P. Filing suit for ‘wrongful life.’ The New York Times. Updated Jan. 26, 2021.
- Hodge SD. Wrongful prolongation of life — A cause of action that may have finally moved into the mainstream. Quinnipiac Law Review 2019;37:167-198.
- Anderson v. St. Francis-St. George Hosp., 671 N.E.2d 225 (Ohio, 1996).
- Allore v. Flower Hosp., 699 N.E.2d 560 (Ohio Ct App, 1997).
- Wright v. Johns Hopkins Health Sys. Corp., 728 A.2d 166 (MD, 1999).
- Taylor v. Muncie Med. Inv’rs, 727 N.E.2d 466 (Ind Ct App, 2000).
- Scheible v. Joseph L. Morse Geriatric Ctr., Inc., 988 So. 2d 1130 (Fla Dist Ct App, 2008).
- Cronin v. Jamaica Hosp. Med. Ctr., 875 N.Y.S.2d 222 (NY App Div, 2009).
- Doctors Hosp. of Augusta, LLC v. Alicea, 788 S.E.2d 392 (GA, 2016).
- Complaint at 2, Weisman v. Md. Gen. Hosp., Inc., No. 24-C-16-004199 (Baltimore City Cir Ct, July 25, 2016).
- Koerner v. Bhatt, No. L-002983-13 (NJ Super Ct Law Div, Morris Cty, 2017).
- Pope TM. Legal briefing: New penalties for disregarding advance directives and DNR orders. J Clin Ethics 2017;28:74-81.
- Pope TM. Clinicians may not administer life-sustaining treatment without consent: Civil, criminal, and disciplinary sanctions. J Health Biomed Law 2013;9:213-296.
The point of the litigation is it is a medical error to provide too much treatment, just as it is to provide too little treatment. If it is clear patients did not want it, then clinicians should not provide it.
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