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Legal Issues Surrounding the Critically Ill Patient in the ED
By Gregory P. Moore, MD, JD, Attending Physician, Emergency Medicine Residency, Madigan Army Medical Center, Tacoma, WA, and Justin A. Eisenman, DO, MS, Resident Physician, Department of Emergency Medicine, Madigan Army Medical Center, Tacoma, WA
Emergency physicians (EPs) are often faced with caring for the impending or actual cardiac arrest patient. Time constraints in the emergency department (ED) often make it difficult to ascertain the resuscitation wishes of the patient. This issue of ED Legal Letter will discuss the legal implications associated with resuscitation care to include deciding whether or not to initiate resuscitation in a patient, issues regarding post mortem procedures, as well as guidelines in determining who is capable of making legal decisions for a patient.
To Code or Not to Code: That Is the Question
The decision of whether to resuscitate a patient has legal ramifications. In some instances, the EP may elect not to resuscitate the patient. In Wendland v. Sparks, the Iowa Supreme Court recognized an action for loss of chance to survive in a patient whose resuscitation orders were not followed by the physician.1 A cancer patient was admitted for "failure to thrive," and her admission to the hospital was intended to allow her to regain strength. Three weeks into her hospital stay, she went into cardiac arrest, and subsequently died after the physician did not initiate resuscitation. The physician admitted telling the nurse that no resuscitation efforts would be started, announcing to the nurses, "I just can't do it to her," despite the fact that there was evidence that such efforts may have been successful.
The plaintiff's suit claimed that the defendant physician had failed "to promptly initiate appropriate care to treat the decedent's arrest."2 In addition to this, the plaintiff went on to argue that the defendant's negligence deprived the decedent of a chance to survive. The court maintained that under this lost-chance theory, a victim with a pre-existing condition, such as cancer in this particular case, who is then subject to another source of injury (failure to resuscitate), may have a claim for the second event. The justification for this position states that were it not for the second condition (failure to resuscitate), the patient may have survived the initial condition (in this instance, the cancer). The court conclusion suggests that if a patient clearly expresses a desire to be resuscitated, the physician exposes him- or herself to liability if he or she unilaterally disregards this request. In this case, the plaintiff became aware of the situation after a report by the nursing staff regarding the physician's comments. Regardless of the physician's decision to resuscitate a patient, care must be taken to maintain professional demeanor with comments and actions.
Contrary to the lost-chance argument in Wendland v. Sparks, there have been multiple claims for wrongful prolongation of life. In Anderson v. St. Francis-St. George Hospital (SFSG), the plaintiff sued on the behalf of the estate of Edward H. Winter.3 The suit alleged battery, negligence, and "wrongful living" relating to care Mr. Winter received at SFSG. Mr. Winter presented to SFSG with chest pain and was subsequently admitted to the coronary care unit for further management. Dr. Russo, the patient's private physician, allegedly had a conversation with the patient regarding goals of care. In light of this discussion, Dr. Russo indicated on the chart that the patient was not to be resuscitated.
During the patient's hospital stay, he had an episode of ventricular fibrillation. The patient was subsequently defibrillated by a nurse, despite Dr. Russo's documentation. Upon awakening, the patient said to the nurse, "Thank you for saving my life." The patient survived the event, but then went on to suffer a paralyzing stroke several days later. Despite this, the patient went on to live several years and participated in many family events and vacations. The plaintiff maintained that the nurse's resuscitation prevented the patient's natural death. Also, the nurse's act of resuscitation was a battery to the patient. The plaintiff furthermore asserted that the nurse was negligent by resuscitating the patient contrary to Dr. Russo's orders. Lastly, the plaintiff maintained that, by keeping the patient alive, SFSG caused him "great pain, suffering, emotional distress, and disability," as well as medical and other financial expenses.4 In summary, the patient claimed, "If you hadn't saved my life, I wouldn't have to live paralyzed."
After numerous appeals, the Ohio Supreme Court held that a patient cannot sue for damages for "wrongful living" as a result of the wrongful administration of life-prolonging medical treatment. Instead, damages for prolongation of life must be based on either negligence or battery. Mr. Winter suffered no injuries from the defibrillation. Although Mr. Winter was alive to suffer the stroke, numerous injuries could have followed resuscitation and, thus, revival did not cause the stroke. When battery is physically harmless, the plaintiff is entitled only to nominal damages, which the plaintiff had not sought. The court affirmed the ruling in favor of the hospital. The court held that "wrongful life" was an untenable concept that could not be supported. The court acknowledged that the true calling of the physician is to save lives.
In Allore v. Flower Hospital, the plaintiff's decedent was diagnosed with asbestosis.5 Eighteen years later, the decedent was admitted to the defendant hospital. At the time of admission, the patient executed a living will and durable power of attorney for health care. The living will stipulated that the patient wanted no "life-sustaining treatment" in the event the he suffered a "terminal condition" or was in a permanently unconscious state. The terms stipulated that the decedent's physician and another physician were needed to determine the presence of a terminal condition or permanently unconscious state.6 The decedent's physician and hospital were both aware of the living will.
The patient was treated and subsequently released from the hospital; however, two months later, he was admitted to the hospital again. After consultation with a cardiologist, the patient was transferred to the coronary care unit. The defendant cardiologist and treating nurse had no knowledge of the living will that had been established with his primary physician. In addition to this, the decedent's chart did not contain a DNR order. Instead, the decedent's primary physician indicated on the chart that the patient was a "full code." Several days after the admission to the coronary care unit, the decedent had respiratory arrest. The defendant cardiologist ordered intubation. Later that day, the cardiologist learned of the decedent's living will. He then ordered that the decedent be extubated. Several hours later, the decedent died.
The suit filed by the plaintiff alleged that by disregarding the decedent's wishes outlined in the living will, the defendants were negligent in their care for the decedent. Also, the suit alleged battery, in that the intubation and ventilator support were performed without decedent's consent. The trial court granted the defense motion for summary judgment on the grounds that the defendants acted in compliance with the standard of care and that there was no battery because an emergency situation occurred. The plaintiff appealed, and the appellate court affirmed, citing the above case, Anderson v. St. Francis-St. George Hospital.7
The cases above outline the legal complexities associated with resuscitation care. In the first case, even though the physician was trying to be empathetic, he was still held liable. The patient who wanted resuscitation was not provided with this therapy in a situation where it likely would have been beneficial. In this setting, it is not the position of the doctor to play the role of God. In the second and third cases, a patient was resuscitated who did not want resuscitation. The take-home message for physicians is that courts are unlikely to go after a physician who sincerely is trying to preserve life. When in doubt, there is less liability when the decision is made to resuscitate the patient.
The use of recently deceased patients as an opportunity for physicians to practice procedures is a topic that has drawn a great deal of controversy. Proficiency in these skills is critical because they may be life-saving if performed correctly, and disastrous if done incorrectly. Advocates for this practice stress that the models, simulators, and cadavers lack the same tissue resilience of recently deceased bodies. While some advocate the use of the newly dead as a learning opportunity, the question invariably arises as to who owns the body. Dating back to the 13th century, the "no property" rule suggests that the body has no owner and is not the property of anyone, although the person charged with disposal has a right to possession for that purpose. This would imply that procedures may be performed without permission; however, many physicians are uncomfortable with this notion. Goldblatt argues that there are "quasi-property" rights that give the family fundamental rights to the body, and use of it without their consent violates common law.
Goldblatt maintains that, "Using newly dead bodies without permission often makes physicians and trainees uncomfortable, with good reason. Their actions are concealed, hidden from the public. Actions we conceal from others are often controversial and sometimes shameful."8 Iserson, a well-recognized advocate for post-mortem procedures, argues that, "There is neither a legal nor a moral basis for requiring relatives to consent for minimally invasive and non-invasive port-mortem procedures. The obligations that society has placed on EPs dictate that they encourage the use of the recently dead for the practice and teaching of minimally invasive and non-invasive life-saving procedures."9
There is no reported case of court action concerning practice on the newly dead for educational reasons without consent. In order to evaluate whether consent is legally required, one must look to case law in closely similar situations. This has been reviewed in multiple instances where actions or procedures were undertaken on corpses without consent of the family, and they subsequently objected.
These challenges are usually based on property rights and constitutional law (the 14th Amendment states that property cannot be taken without due process), with damages sought for the tort of ''negligent infliction of emotional distress.'' The following are two classic cases that represent the legal status of this issue.
In one case, a mother of an infant who died from sudden infant death syndrome brought suit for wrongful removal of the baby's corneas. State law allowed removal of corneal tissue for the purpose of transplantation in cases where a coroner takes possession of a body due to unexpected death, if no objection is made by the decedent in his or her life or by the next of kin after death. The mother was not aware of the intent to remove the corneas and, thus, did not object. The state court ruled that the law was unconstitutional in that it allowed removal without due process. On appeal, the Georgia Supreme Court reversed this decision, stating there is no constitutionally protected property right in a decedent's body and, thus, the law is constitutional. A dead body itself ceases to have rights of its own. Earlier case law stated there was no family property right in a dead body, but later there evolved the concept of ''quasi-property rights'' when referring to the interests of relatives in cadavers of their next of kin. Quasi-property rights allow the family to possess the body and control it for the purpose of proper disposal according to their beliefs and values. The court said, ''It seems reasonably obvious that such 'property' is something evolved out of thin air to meet the occasion, and that, in reality, the personal feelings of survivors are being protected under a fiction likely to deceive no one but a lawyer.'' In a balancing act, it was decided that society's interest in obtaining corneas and promoting health outweighs the individual's interest; thus, a law such as this is acceptable. Many would use this case to argue, legally, that a physician's need to be proficient at life-saving procedures outweighs the mandate of prior consent of next of kin.10
Another case came to a different conclusion. An Ohio wife claimed that her husband's corneas were wrongfully removed. After his death, a possible suicide, she was approached to consider making an anatomical gift, but declined based on her husband's prior wishes, and this was documented. The coroner then allowed the corneas to be removed. The law allowed for removal, without consent, if the coroner had no knowledge of an objection by the next of kin. Normally, the records are not reviewed by the coroner. The court acknowledged that some kind of a right (quasi-property) exists in a cadaver that has previously been called a ''legal fiction.'' But, there is definitely a legal right for the next of kin to possess a cadaver. The right to possess is one of the key components of the legal definition of property (along with right to use, to exclude, to profit, to dispose, referred to as the ''bundle'' of rights that define property). This court then made the jump that previous ones hadn't by declaring that this wife's right rose to the level of a constitutionally protected interest in her husband's body that would not allow it (or part of it) to be taken or used by others without her permission. Other court cases have not focused on the ''property'' issue but have awarded monetary damages when cadavers have been violated, without next of kin consent, via the legal concept of ''negligent infliction of emotional distress.'' This occurs when an individual, by his or her actions, causes severe distress by conduct so extreme that he or she knew it would cause psychological injury. The courts clearly seem willing, in many instances, to punish those who would violate a newly deceased person's body without permission.11
In summary, the courts consider the human body "property-like." As such, families will be intimately involved in a physician's pursuit of post-mortem procedures. A recent large-scale survey of 514 people showed that most participants would consent to having procedures practiced on their newly deceased relatives, but most would also want to be asked for consent by the physician prior to the performance of the procedure. Thus, legal cases and medical research have now made it clear; to avoid liability, the physician should obtain consent from family members before proceeding with a post-mortem procedure.
The Role of Decisional Capacity
In an emergency situation, it is often difficult for physicians to determine decisional capacity. The principle of autonomy maintains that an adult with decisional capacity may choose to forgo medical care, even if that choice may result in death. In order to determine whether a patient can choose to undergo, or forgo, medical care, someone must first assess for capacity to make that choice. Historically, this decision is made after assessment by a psychiatrist. This is not a realistic option for most patients treated in the ED.
When patients have the ability to communicate, the most commonly used test for decisional capacity is the ability to understand. Similar to laws of informed consent, this test requires the ability of the patient to understand the risks, benefits, and alternatives to treatment, including no treatment. Under this test, patients are allowed to make unwise choices, so long as the required elements are fulfilled. How the patient weighs these elements, values them, and synthesizes them to reach a decision is not important. In emergent situations, there is no readily available objective test that definitively determines a patient's capacity to make decisions. An ED physician should, therefore, clearly document his or her own impression of the patient's ability, or lack of ability, in making medical decisions regarding care. A key word the courts rely on is "understanding." Therefore, a powerful note that may be put on a patient's chart is, "The patient seems to understand the issues."
Frequently, EPs are faced with patients who are unable to make or communicate health care treatment decisions. It is important to know the legal hierarchy, and establish who has the authority to act. One should also realize this same person will likely have the authority to pursue subsequent litigation. Thus, these wishes should be acknowledged.
In these circumstances, courts usually honor an Arizona statute that attempts to address these concerns.12 The statute stipulates a health care provider will make a reasonable effort to locate and follow any existing health care directives. If no such documents can be located, the health care provider will make a reasonable effort to consult with a surrogate. In circumstances where the patient has a power of attorney, this person will act as the patient's surrogate. However, if the court appoints a guardian, with the purpose of making medical decisions, that guardian will act as the patient's surrogate. If neither of these situations applies, the health care provider will make a reasonable effort to contact the eligible individuals, who may act as the patient's surrogate. The statue outlines a hierarchy of decision making (Table 1). The patient's spouse is regarded as the first point of contact. This is then followed by adult children and parents of the patient. In situations where the patient has more than one adult child, the physician should attempt to get the majority consent. The guidelines allow for a close friend to make decisions. This individual must be someone who has special care and concern for the patient, and is familiar with the patient's health care views.13
EPs are frequently called on to provide care to the critically ill patient. Resuscitations are frequently chaotic, and physicians are often presented with little information about the patient regarding goals of care and resuscitation wishes. In these situations, most courts will rule in favor of the physician erring on the side of preserving life. Post-mortem procedures can provide a unique educational training opportunity. In light of a recent survey and several court decisions, physicians should ask family members for permission prior to performing any post-mortem procedures. Determining whether a patient has medical decision-making capacity follows a process similar to the informed-consent process. Patients must be able to understand the risks, benefits, and alternatives. In situations where a patient is unable to be the medical decision maker, physicians should be familiar with the hierarchy of medical decision-making recognized by the courts.
1. Wendland v. Sparks, 574 N.W.2d 327 (Iowa 1998).
3. Anderson v. St. Francis-St. George Hospital, 77 Ohio St.3d 82, 671 N.E.2d 225, (1996).
5. Allore v. Flower, 121 Ohio App. 3d 229, 699 N.E.2d 560 (6 Dist 1997).
7. Anderson v. St. Francis-St George Hospital, Inc., 77 Ohio St.3d 82, 671 N.E.2d 255, 227-228 (1996).
8. Goldblatt AD. Don't ask, don't tell: Practicing minimally invasive resuscitation techniques on the newly dead. Ann Emerg Med. 1995;25:86-90.
9. Iserson KV. Postmortem procedures in the emergency department: Using the recently dead to practice and teach. J Med Ethics. 1993;19:92-98.
12. Az.Rev.Stat. § 36-3231
For more information, contact:
Justin S. Greenfelder, JD, Buckingham, Doolittle & Burroughs, Canton, OH. Phone: (330) 491-5230. Fax: (330) 252-5520. E-mail: jgreenfelder@BDBLAW.com.
Linda M. Stimmel, JD, Partner, Wilson Elser Moskowitz Edelman & Dicker LLP, Dallas, TX. Phone: (214) 698-8014. Fax: (214) 698-1101. E-mail: email@example.com.