Wrongful prolongation of life lawsuits continue to arise, many involving clinicians resuscitating patients with documented DNR status.1,2
Robert D. Schulte, JD, an Easton, MD-based attorney, has handled multiple cases of healthcare providers who disregarded patients’ documented end-of-life wishes. “For whatever reason, there seems to be a recurring problem out there,” he says.
The cases all involve someone with documented DNR status who was resuscitated anyway. In Schulte’s experience, defendants refuse to acknowledge they harmed the patient. Instead, the providers insist they just did what they were trained to do — save lives. “The excuse I keep hearing is that when a Code Blue is called, that providers are wired to save lives, and they just start pumping and intubating. What’s lost on these healthcare providers is that at the end of the day, no matter what good intentions they have or what their training is, it’s the patient’s call,” Schulte says.
The plaintiffs in the lawsuits took the time and effort to complete the necessary steps to avoid unwanted aggressive care at the end of their lives. “People are saying, ‘Look, under this set of circumstances, this is what I want to do. If I code, leave me alone, let me go quietly into that good night,’” Schulte notes.
Typically, healthcare providers rely on the defense that goes something like, “We did ignore your wishes, but we saved your life.”
“In litigation, the position has always been, ‘We did no harm.’ But courts are starting to have a different position,” Schulte observes.
In one such case, a patient’s DNR status was ignored. That patient lived seven years with poor quality of life. The family incurred hundreds of thousands of dollars in medical expenses. “While the family was grateful she was alive, they were enraged her wishes were not followed,” Schulte reports.
Schulte says some of the malpractice cases could have been avoided if providers had just asked a simple question: “Does somebody know this patient’s code status?”
“These are smart, investigative people, and doctors and healthcare providers deal with death every day. I just don’t understand why this keeps happening,” Schulte laments.
In another case, a woman had completed a Medical Orders for Life-Sustaining Treatment (MOLST) form stating no CPR or intubation. Yet clinicians performed both interventions. Subsequently, clinicians withdrew life-sustaining care, causing great suffering in the process. “From what I know of providers and nurses, most are caring and compassionate folks. But the business of medicine has some real soul-searching to do. I don’t know what the answer is, but this is a real problem,” Schulte argues.
Regardless of the intent, harm can be inflicted on patients and families. “The providers knew, or had every reason to know, the patient’s code status,” Schulte says.
Sometimes, the patient’s DNR status is unknown to emergency department (ED) providers, or the patient goes into cardiac arrest before anyone could access the DNR order. “Given time exigencies, the ED gets more leeway in not pulling and reviewing the advance directive,” says Thaddeus Mason Pope, JD, PhD, HEC-C, professor of law at Mitchell Hamline School of Law in Saint Paul, MN.
Even if clinicians are aware the patient’s advance directive exists, there might be inadequate time to interpret it. “Many are written with ‘if, then’ clauses,” Pope explains.
It may be unclear whether the required precondition for withholding treatment is met. For example, advance directives may include statements such as, “If I become unconscious and to a realistic degree of medical certainty I will not regain consciousness, I do not want my life to be prolonged.” It is hard to follow this in the ED, because the emergency clinician does not know if the coma is permanent. In contrast, Physician Orders for Life-Sustaining Treatment are immediately actionable medical orders and should almost always be followed, according to Pope.
Many ED providers worry they will be sued for failing to resuscitate a patient. Schulte says this concern is misguided if the patient’s code status is DNR. “If the provider follows the instructions in the MOLST form, they are immune from civil liability, period,” Schulte says.
If the patient’s DNR status is well-documented and suffers a code event, “that is not an emergency situation. That is the very situation the MOLST is supposed to cover,” Schulte underscores.
Patient autonomy is at the heart of these cases, according to Schulte. “Simply because you go into a hospital doesn’t mean you give that up. On the contrary, the law guarantees it. That is why we have informed consent,” Schulte says. “When somebody takes that away from you, they are taking something quite valuable.”
REFERENCES
1. Span P. Filing suit for ‘wrongful life.” The New York Times. Jan. 22, 2021.
2. O’Donnell v. Harrison, No. CDV 2017-850 (Montana District Court, Lewis & Clark County, May 23, 2019).
Regardless of training or good intentions to preserve life, at the end of the day, this is the patient's choice.
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