Can Ethicists Be Sued for Recommendations? Attorneys Warn of Potential Legal Risks

By Stacey Kusterbeck

The field of clinical ethics continues to evolve, with core competencies, certification, and documentation in the electronic medical record. “The professionalization of ethics will increase the epistemic authority of the clinical ethics consultant. As a consequence, recommendations could be taken more seriously,” suggests Claudia R. Sotomayor, MD, DBe, HEC-C, chief of the Ethics Consultation Service and a clinical ethicist at Georgetown University’s Pellegrino Center for Clinical Bioethics in Washington, DC. In a recent paper, Sotomayor and colleagues explored whether the professionalization of ethics consultation exposes those working in this field to the types of liability claims faced by professionals in other fields.¹

“Ethicists are working in an area where there is potential for a great deal of conflict. There is a culture where there is great potential for lawsuits being filed. People engaging in this field need to take that seriously,” warns Edward R. Grant, JD, one of the authors. Grant is an attorney and associate faculty at Georgetown University’s Pellegrino Gener for Clinical Bioethics.

If someone takes on the role of a doctor or lawyer, there are specific duties that are owed to patients or clients. Those professions have potential liability exposure for breaches of duty. “The same is true for clinical ethicists,” says Grant. “Clinical ethicists bear some risk of liability, just as other healthcare professionals do.”

Standards (such as the American Society for Bioethics and Humanities’ Core Competencies for Healthcare Ethics Consultation) could be used by plaintiff attorneys to demonstrate that ethicists failed to meet the standard of care. “Since there is a body that sets professional standards, there’s certainly a possibility that you could be held to those standards,” says Grant.

When filing a lawsuit on behalf of patients or their survivors, plaintiff attorneys often name everyone involved in the case. Thus, it is possible that ethicists get named in a malpractice lawsuit initially, before all the facts of the case are known. “You don’t have to prove your case before you file the complaint. The incentive clearly is to just name everybody who had anything to do with the case,” says Grant. If there is any suggestion that ethicists influenced care decisions that were made, there is potential liability exposure. “We don’t have a track record of ethicists being held liable. But litigation costs money, and people should be prepared with insurance,” says Grant.

Anyone involved in clinical care is at some risk of being sued by a patient.

“Physicians are generally aware of these risks and practice accordingly. Ethicists, in contrast, especially if they are not otherwise engaged in clinical care, may be far less aware of this possibility,” says Jacob M. Appel, MD, JD, MPH, HEC-C, director of ethics education in psychiatry at Icahn School of Medicine at Mount Sinai and an attending physician at Mount Sinai Health System.

To prevail in medical malpractice litigation, plaintiff attorneys must prove that the clinician failed to meet the standard of care (generally defined as what a reasonable provider would do in similar circumstances). An attorney could allege that the ethicist failed to gather information that was necessary — such as a patient’s cultural practices, a patient’s end-of-life wishes, or relevant information from a family member.

Another possible allegation is that an ethicist intentionally misled a patient to achieve a certain outcome. For example, in the ethicist’s view, a patient’s quality of life after an injury might be so low that such an existence would not be meaningful. If the ethicist emphasized to the family that the prognosis for recovering was futile, without noting that in rare cases some patients did achieve some recovery, it could result in the withdrawal of life support. If the family sued in a case like that, the plaintiff attorney could argue that the ethicist’s recommendations harmed the patient.

It is even possible that ethicists could be forced to testify against the patient in court. “Unlike physicians, ethicists may not be covered by the rules of physician-patient privilege,” says Appel. “Neither patients nor ethicists may be aware of this risk.”

To mitigate risks, ethicists can clearly document their role in a case, and the reasoning behind any recommendations. “Good communication is always the best way to avoid litigation,” underscores Appel.

Anytime a patient is injured or dies in a hospital, it is possible that either the patient or the surviving relatives will sue. “If an ethicist’s actions contributed to an injury or death, this adds to the risk of liability,” according to Jonathan Darrow, SJD, LLM, JD, MBA, a former professor at Harvard Medical School and Bentley University.

Even if the ethicist or hospital ultimately prevails, a lawsuit will be time-consuming, expensive, and stressful. Darrow says that clear documentation on the following points can minimize the likelihood of litigation:

• documentation by the ethicist indicating that the ethicist encouraged the physician to fully disclose the costs, benefits, and risks of alternative medical options to the patient (or next of kin);

• documentation by the physician of the costs, benefits, and risks of each alternative that was communicated to the patient, and the patient’s subsequent decision;

• documentation that the patient was given an opportunity to ask additional questions, and that these questions were answered;

• if a patient wishes to act against medical advice, obtaining the patient’s signature on a document so stating (or if the patient refuses to sign, having a third party sign the document attesting to the patient’s refusal).

“Of course, the most important thing is not the documentation — but that the patient feels fully informed and made the best decision possible with the information that was available. Patients who feel they have been treated with respect and [were] well-cared for rarely sue, even when negative outcomes occur,” says Darrow.

According to attorneys interviewed by Medical Ethics Advisor, ethicists are rarely named in malpractice lawsuits — either in their individual capacities or as part of institutional claims. This is because ethicists are not the ultimate decision-makers for clinical care. Healthcare providers, patients, and families are free to accept or reject their recommendations. “This provides some level of distance between ethicists and patients or their families who may ultimately file suit,” says Kristin Pierson, Esq., a medical malpractice defense attorney at Bendin Sumrall & Ladner in Atlanta, GA.

“The interposition of a physician between the ethicist and the patient can help to insulate the ethicist from liability,” adds Darrow.

However, ethicists play a role as a member of the provider team during consultations. As part of an Ethics Committee, ethicists may deliberate on a particular patient’s case. This opens the door for the ethicist’s suggestions to be legally challenged as inappropriate or unreasonable. “End-of-life decisions and decision-maker determinations for a patient are areas rife with risk for any healthcare member, including ethicists,” says Pierson.

Since ethicists are making recommendations to the primary care team, and the care team is relying — at least in part — on those recommendations, ethicists cannot escape possible liability in any potential legal claim.

Pierson defended the ethics team of a hospital who was sued for their recommendations. In that lawsuit, the ethics team was alleged to have committed professional negligence by recommending termination of life support for an 18-year-old patient in a persistent vegetative state. The patient was presumed brain dead, but confirmatory brain death testing could not be performed because she was pregnant. The hospital, which employed some of the ethics team members, including the chair who issued the Ethics Committee Report, was sued for its recommendations. The ethics chair was deposed and explained the reasoning behind the recommendation. The trial of the case proceeded only on the underlying medical malpractice claims and was won by the hospital and clinical providers. This mooted the trial on the alleged tortious termination of life support claim involving the Ethics Committee.

“If sued, ethicists do not have an automatic ‘out’ to get dismissed,” adds Pierson. Rather, ethicists would have to use a variety of procedural and substantive legal defenses throughout the course of the litigation, just as any other defendant would. For ethicists, the possibility of having to defend oneself during protracted litigation raises the question of whether professional liability insurance is necessary. “Corporate institutions are obligated to cover employed individuals, which may include ethicists,” says Pierson. This means that the ethicist’s employer (which may be the hospital) likely provides liability insurance coverage and defense counsel to any employee who is sued in a malpractice case. Ethicists should clarify this. “Anyone accepting a position as an ethicist with a hospital or healthcare facility should ask whether and under what circumstances they will be covered by insurance provided by the hospital,” says Darrow.

If ethicists are included in the medical team, they likely could be named in a suit in many states, according to Scott Martin, JD, a partner at Husch Blackwell in Kansas City, MO. Martin suggests that ethicists consult their state medical and nursing malpractice statutes, which identify which professionals constitute “healthcare providers.” For example, clinical ethicists are not specifically covered by the Kansas Health Care Stabilization Fund. However, the facilities in which ethicists are employed may be covered.

Although ethicists have some protection from liability because they are making recommendations as opposed to care decisions, that does not mean the ethicist will be dismissed from the claim. “Recommendations that impact care decisions may be viewed by judges as jury questions rather than a basis for summary judgment,” says Martin.

Pierson offers these approaches for ethicists to protect themselves legally:

• contemporaneous documentation;

• exercising sound, reasonable care or judgment;

• offering alternatives instead of a singular, unrelenting approach;

• having frequent conversations with the patient or family;

• giving everyone sufficient time to process ethics recommendations.

“Good, sincere, honest communication is recommended, so as not to offend a patient or family and increase their index of suspicion for what they may perceive as wrongdoing,” concludes Pierson.

REFERENCE

1. Sotomayor CR, Spevak C, Grant ER. Professionalization of clinical ethics consultants: A need for liability protection? HEC Forum 2024; Apr 23. doi: 10.1007/s10730-024-09527-4. [Online ahead of print].