Critical Care Plus: ICU Lawsuits Over Withholding Support Are Urban Myth, Expert Says

Claims over end-of-life care dwarfed by other specialties

Health care providers are understandably concerned about the legal climate in which they live, observes Marshall B. Kapp, JD, MPH, professor in the department of community health at Wright State University School of Medicine in Dayton, Ohio. But ICU physicians can rest easier than many. Even though malpractice cases abound, the reality is that very few medical malpractice claims or other adverse legal actions happen due to thoughtful decisions to withhold or withdraw treatment for dying patients in the ICU.1

Kapp, an attorney who teaches at a medical school, notes there is pervasive worry, apprehension and anxiety among physicians and other health care providers about the possible legal consequences of reducing or removing life support for terminally ill patients.

"There’s a myth that it’s difficult if not impossible to withhold or withdraw life-prolonging treatment in the ICU without judges roaming the hospital halls overlooking every move," Kapp says. "That’s really contrary to the reality."

Certainly, Kapp notes, there are legal boundaries within which physicians and others must operate-but the vast majority of decisions to limit treatment for terminally ill patients are made without formal legal involvement. Most decisions are made through negotiations between the patient’s physician, family or surrogate and clergyperson, Kapp observes.

"The legal system is reactive—courts only get involved when someone goes to it and says, We can’t figure this out on our own.’"

Medical malpractice, Kapp points out, is largely a problem of missed diagnoses and botched operations. "If you look at what constitutes the bulk of medical malpractice claims it’s lots of things other than end-of-life medical decision making," he says. Obstetrics, orthopedic surgery and emergency department treatment in which the physician missed a diagnosis are far more likely candidates for lawsuits. "The percentage of lawsuits arising from ICUs is very, very small," he says.

Kapp says that one of the explanations for the low incidence of ICU-related claims is that in a malpractice case the plaintiff has to show that physician negligence directly caused the patient some injury. Even if an ICU physician is negligent that’s difficult to prove in court because the patient is already critically ill or dying because the problem is the underlying medical problem that landed the patient in the ICU in the first place.

This is not to say there aren’t any ICU lawsuits, but Kapp says their number is dwarfed by the number of cases arising from obstetrics, ERs and surgical specialties. Headlines about court involvement in end-of-life situations rarely represent malpractice claims in which treatment was withheld or withdrawn and a lawsuit resulted, Kapp adds.

"End-of-life court cases almost always revolve around a decision that needs to be made because the informal discussion process breaks down," Kapp says. "Either the family disagrees among themselves or there’s a fundamental disagreement between the family and physician, in which case the family usually transfers care to another physician, moves the patient to another facility, or the hospital’s ethics committee becomes involved and mediates the disagreement." (For more information, contact Marshall Kapp at [937] 775-2033.)


1. Curtis JR, Rubenfeld GD, eds. Managing Death in the ICU: The Transition From Cure to Comfort. New York, NY: Oxford University Press; 2000.