EXECUTIVE SUMMARY

Several recent lawsuits alleged that patients were harmed by unwanted care because their end-of-life wishes were disregarded by the clinical team, with one case resulting in a $1 million settlement against the hospital. To ensure ethical and legal obligations are met:

  • ensure hospital policies on advance directives are followed;
  • avoid giving families the unnecessary burden of deciding to withdraw care that was already refused by the patient;
  • take a “time out” to confirm patients’ code status.

A 91-year-old woman presented to an ED, advance directive in hand, indicating her end-of-life instructions. In addition, her granddaughter stressed to caregivers that no heroic measures were to be taken. Despite these efforts, the woman was intubated and operated on, and the family sued the hospital.

“Our client was very much aware of advance directives, having had a family member suffer unnecessarily, and insisted on having hers in her hand whenever she went to see the doctor,” says Harry Revell, JD, an attorney at Augusta, GA-based Nicholson Revell, who represented the patient’s family.

The patient’s advance directive was never added to the patient’s chart. “However, it was documented in the chart that there should be no intubation without first contacting the patient’s agent,” says Revell.

The hospital had appropriate policies in place for advance directives. “The problem was, they didn’t follow them,” says Revell. “There was, we thought, a flagrant and obvious conscious choice to ignore the patient’s instructions, both written and verbal.”

The hospital filed a motion for summary judgment, which the trial court denied. That ruling was later affirmed by both the Georgia Court of Appeals and the Georgia Supreme Court.1,2 The case settled for $1 million shortly before trial — an amount that the family insisted would not be confidential. “We feel it’s important for the public to be informed about this issue, and for healthcare providers to be mindful of this,” says Revell. “The amount will hopefully get everybody’s attention.”

The legal team searched for similar cases or settlements, but found none. “There was literally nothing out there,” says Revell. “We hope this case being out there in the public domain will inform others who are thinking of taking these kinds of cases.”

‘Absolute, Unqualified’ Right

Robert Schulte, JD, an attorney at Schulte Booth in Easton, MD, recently handled a similar case. An 83-year-old woman, who had completed a Medical Order for Life-Sustaining Treatment (MOLST) form stating she wanted no life-sustaining interventions, was found in cardiac arrest and successfully resuscitated. The woman’s son sued, alleging assault, negligence, and intentional infliction of emotional distress.

“An adult has an absolute, unqualified right to refuse medical treatment,” stresses Schulte. Schulte doesn’t believe healthcare providers are deliberately ignoring patients’ wishes; rather, it’s that clinicians are hardwired to save lives. “When they find a patient in distress, in the face of ignorance of the patient’s wishes, they are going to default to saving the patient’s life,” says Schulte.

Hospitals are vigorously defending these “wrongful prolongation of life” cases, arguing that no compensable harm was done. “Hospitals do wonderful work, but they are businesses and protect their interests,” says Schulte. “They don’t like these cases, and they are defending them aggressively.”

The defense argued that the doctors and hospital had not harmed the patient and, in fact, saved the patient’s life. “The hospital argued that we may have violated your rights, but at the end of the day we did not harm you,” says Schulte.

Schulte says this is a flawed argument. In this particular case, the woman recovered fairly well with a reasonable quality of life. “But if you change the facts a little bit, it can get very dicey,” says Schulte. For instance, the woman could have suffered another stroke after being resuscitated against her wishes, putting her into a persistent vegetative state, and lived another 10 years at the cost of $100,000 a month. “Who owns that? According to the hospital, not them — they saved your life,” says Schulte.

In most states, if a healthcare provider withholds or provides treatment consistent with the patient’s stated wishes on a MOLST or POLST (Physician Orders for Life-Sustaining Treatment) form, they are immune from lawsuits alleging negligence. “That is a pretty powerful defense to any subsequent claim from family members saying, ‘Why didn’t you intubate?’ or ‘Why didn’t you give them heart stimulant drugs?’” says Schulte.

While providers have immunity for acting in accordance with patients’ wishes, providers are legally exposed if they contradict patients’ wishes. If a patient has a documented MOLST or POLST form, says Schulte, “You get immunity for following it, but you don’t have immunity for violating it.”

Previous court rulings have looked at whether receiving unwanted care can be recognized as a compensable injury. Most have said it does not.3 “The queasiness of the courts in these cases reflects, in my judgment, a collision of philosophy, religion, and of medical ethics,” says Schulte. “But I think the ice is cracking a bit.” This may be due in part to a growing awareness of the medical and financial consequences that follow a decision to give aggressive end-of-life care against a patient’s stated wishes.

A recently filed lawsuit involved an 89-year-old woman who was resuscitated despite having DNR and DNI orders, and lived another six months. The woman’s daughter sued, claiming that her mother endured unwanted pain and suffering as a result of the prolonging of her life.4

“The law does give us the undeniable right to say what is to happen when our final hour comes,” says Schulte. “Unfortunately, in practice, I don’t think we’re quite there yet. It may take some more cases.”

Ryan R. Nash, MD, MA, FACP, FAAHPM, director of the division of bioethics at The Ohio State University College of Medicine in Columbus, is aware of several lawsuits alleging patients were harmed by unwanted treatment.

“Generally, the cases aren’t outlandish. They are not claiming anything other than the physician or hospital failed to follow their own policies,” says Nash.

In addition to ensuring that policies on advance directives are followed, Nash says physicians and staff should be making an effort to confirm the patient’s code status.

“If you have a patient with a poor prognosis, not knowing the code status at handoff is not meeting the standard of care,” says Nash. A common example: A patient is admitted from the ED and an advance directive noting the patient’s DNR status is provided — but physician orders don’t reflect this.

“If they give resuscitative efforts when patients have explicitly stated they don’t want it, then they are not meeting the standard of care,” says Nash. Often, information on the patient’s wishes is available somewhere — whether on a paper document handed to an admissions person, or somewhere within the electronic medical record (EMR) — but isn’t readily available when it’s time to make a decision. “We don’t need to be making default decisions. Right-sizing of care is what we want, for the right treatment that is desired, not refused treatment,” says Nash.

Nash encourages resuscitation teams to use a “time out,” similar to the approach used prior to surgeries, to make an effort to determine the patient’s code status: “It could be someone’s job to decide if this is right care, or already-refused care.”

Clinicians may prefer to “err on the side of caution” by providing care, believing that no harm will be done since the family always can reverse the decision at a later point in time; however, this is ethically problematic.

“It’s not just the burden of ongoing life that is the main problem,” says Nash. “It’s that these were refused treatments.”

Providing aggressive care against the patient’s wishes forces surrogates to make a decision to withdraw it — when the decision was already made by the patient. “It does harm to the family member, by forcing them to make a decision they never wanted to make and should not have to make,” says Nash.

Recognition by Courts

The widely publicized wrongful prolongation of life cases could thwart efforts to promote advance care planning. “If the whole idea is to avoid the treatment you don’t want and get the treatment you do want, it’s going to be harder to sell that if it’s not true,” says Thaddeus Mason Pope, JD, PhD, director of the Health Law Institute and professor of law at Mitchell Hamline School of Law in St. Paul, MN.

The recent “wrongful prolongation of life” lawsuits share the following fact patterns:

  • the patients clearly rejected some type of life-sustaining treatment, such as intubation or CPR;
  • the patient and/or surrogate communicated this to treating clinicians verbally or in writing, or both;
  • the patient received the very same intervention they’d expressly said was unwanted.

“We are seeing more and more of these cases, and that’s not a surprise because we keep promoting the promise of advance care planning,” says Pope.

The right to refuse treatment, even if it’s life-sustaining treatment, has been an ethical and legal right since the landmark 1976 Quinlan case. Still, patients’ wishes are not always followed. “I think it happens a lot, not usually intentionally,” says Pope. Often, it’s a system or communication problem at issue — the advance directive or the POLST form isn’t entered into the chart, or isn’t easily accessible in the hospital’s EMR. “It’s more negligence instead of a deliberate wrongful act,” says Pope. “Still, the prevalence is reasonably high of not honoring recorded preferences of incapacitated patients.”

By providing unwanted treatment, often someone is kept alive who otherwise would have died. “In the past, the courts were not sure what to do with that — how is it a harm to be alive?” says Pope.

As the recent cases show, courts now are recognizing unwanted care as a compensable injury. A surge in similar cases is likely, says Pope. “This is both because the law supports it, and the dollar value of the cases makes it economically feasible to bring these cases. There is actually real money here.”

REFERENCES

  1. Doctors Hospital of Augusta, LLC et al. v. Alicea, 332 Ga. App. 529 (2015).
  2. Doctors Hospital of Augusta, LLC et al. v. Alicea, Supreme Court of Georgia, 299 Ga. 315 (2016).
  3. Anderson v. Saint Francis-Saint George Hosp., 77 Ohio St. 3d 82, 671 NE 2d 225 (1996).
  4. Koerner v. Bhatt, Superior Court of New Jersey (2017).

SOURCES

  • Ryan R. Nash, MD, MA, FACP, FAAHPM, Director, The Center for Bioethics and Division of Bioethics, The Ohio State University College of Medicine, Columbus. Phone: (614) 366-8405. Email: ryan.nash@osumc.edu.
  • Thaddeus Mason Pope, JD, PhD, Director of the Health Law Institute/Professor of Law, Mitchell Hamline School of Law, St. Paul, MN. Phone: (651) 695-7661. Email: thaddeus.pope@mitchellhamline.edu.
  • Harry D. Revell, JD, Nicholson Revell, Augusta, GA. Phone: (706) 722-8784. Email: harry@nicholsonrevell.com.
  • Robert Schulte, JD, Schulte Booth, Easton, MD. Phone: (410) 822-1200. Email: robertschulte@schultebooth.com.