What is behind the recent uptick in allegations of wrongful prolongation of life? Ryan R. Nash, MD, MA, director of The Ohio State University Center for Bioethics and the chair in medical ethics and professionalism, has served as an expert witness on multiple wrongful prolongation of life cases. Nash also has advised health systems on how to avoid these cases. He talked with Medical Ethics Advisor (MEA) recently about this subject. (Editor’s Note: This transcript has been lightly edited for length, clarity, and style.)
MEA: What is the outcome of the cases you have reviewed?
Nash: Most of the cases are settled out of court because it is just blatant wrongdoing. Some of the cases do end up going to court. The plaintiff always wins, in my experience, because it is so obviously malpractice.
MEA: What leads to a lawsuit?
Nash: In 100% of the cases I have reviewed, the critical distinguishing factor is that resuscitation was refused in advance, it was known, it was communicated, and the hospital medical teams failed to honor that refusal. Almost always, they refused to do that based on a failure of their own system. It is a failure of communication, a failure to read the chart, or a failure to put the right order in.
In one case, a 92-year-old hospice patient was brought to the ED. The exhausted daughter gave the advance directive and DNR form and says, “Mom is on hospice and is having a lot of symptoms we couldn’t control at home. Don’t do anything without contacting me.” She comes back, and all of a sudden mom is in the ICU on a ventilator and had procedures done. This is an obvious case of failing to respect the patient’s wishes. In the chart, it clearly stated “Patient is on hospice, is here for symptom management, no aggressive measures.” But someone messed up.
Then, you can have someone come in with heart disease who asks to be DNR in the chart. The DNR order is put in the chart, the wristband is on, the patient is found unresponsive. They call a code, they resuscitate. Eventually, they notice the DNR bracelet and ask, “Did we do the right thing?” No, they did not.
In several of these cases, the patient or their proxy made it abundantly clear they did not want resuscitative measures. The team failed to follow their own hospital’s protocols. In a lot of hospital protocols, if a code is called, someone immediately is supposed to confirm code status. When that is not followed, they are violating their own policy and violating the standard of care.
MEA: What are the central ethical issues involved in these cases?
Nash: The respect of self-determination and advance refusal. In none of the cases I’m aware of was it a gray matter. It was clearly communicated that the person refused the intervention, usually resuscitation. The hospital will always try to say, “We always err on the side of life.” That does not cover our willful negligence to ignore refusals. When someone has refused an intervention in advance and you do it anyway, that could be considered assault. If you ignore that wristband, or ignore the DNR, or ignore the documentation of advance planning in the chart, it is a failure to respect an informed refusal. In medical ethics, the right to refuse is the bedrock of the informed consent process. Just as we should never be doing surgery on the wrong side, or giving the wrong medication, or giving the wrong dose, we should never fail to honor a DNR that is known.
MEA: What can ethicists do to prevent these situations?
Nash: I would really encourage ethicists to get to know their legal and risk people well, and have a conversation around this. People need to be aware that it clearly violates medical ethics standards. Ethicists also need to confirm that their institution not only has best practice policies and procedures, but to diligently and repeatedly work to make sure that staff are educated and empowered to follow them.
MEA: What do the families in these cases usually want?
Nash: When you are a family member who is grieving, and you know your loved one did not want this, and that the hospital did this to them and you could not protect them, it is very painful. It changes lives. People have to leave their jobs to care for the family member. There are financial consequences.
But the families usually do not want much. They usually just want an apology and medical bills covered, and then they want some reassurance that this will not happen to anybody else. These usually are not litigious people. I have just been surprised at how many times when the initial ask is a small, modest ask. Amazingly, in some of these cases, when the hospitals or physician digs in and starts fighting it, they usually end up paying far more because of all the needless legal costs.
I do not want to see any more of these cases. They should not happen. When they do, it should be obvious to hospitals that they are in the wrong.