Emergency physicians (EPs) worry about litigation because they did not save a patient’s life. However, few realize there are considerable legal risks if aggressive end-of-life care is provided against the patient’s wishes.
Several recent million-dollar settlements have involved ED patients who were resuscitated or intubated against the documented wishes in their advance directives.1 “As the front line, the ED providers would be considered more culpable than anyone else in the situation,” says William Hopkins, JD, a partner at Austin, TX-based Spencer Fane.
ED providers are the first ones to encounter the patient, and the first ones with the opportunity to find out if there is an advance directive — and, if so, to make sure it is in the medical record. “Wrongful prolongation of life lawsuits are a fairly new phenomenon, based on the expansion of our society’s acceptance that patient choice and decision-making is paramount in healthcare,” Hopkins says.
For years, courts routinely dismissed such lawsuits, ruling plaintiffs had no cause of action.2-7 “The old concept of healthcare was that failing to do something that results in someone’s death is bad and punishable, but doing something that results in life being extended should not be punished, even if it is not what the patient wanted,” Hopkins says.
Courts took the view that providing extra life cannot be an injury to a person. But recent successful lawsuits have opened the door to this litigation.8-11 “In the past decade or so, we’ve seen courts more willing to recognize that patients who are treated without their consent actually suffer a legally compensable injury,” says Nadia N. Sawicki, JD, co-director of the Beazley Institute for Health Law and Policy at Loyola University Chicago School of Law.
The publicity surrounding these cases, especially those with significant financial settlements, means patients, families, and clinicians are on notice that “wrongful prolongation of life” is something that can be addressed through the legal system. “It’s likely that healthcare providers will see more of these claims in the coming years,” Sawicki predicts.
The recent successful wrongful prolongation of life lawsuits reflect a greater appreciation of a patient’s right to choose. “That includes the termination of that life or not trying to save that life with extraordinary measures,” Hopkins explains.
State and federal administrative agencies also are paying attention to the issue of advance directives. Under the Patient Self-Determination Act (PSDA) of 1990, Medicare-participating hospitals are required to establish policies and procedures for documenting whether a patient presents with an advance directive, and informing patients of the hospital’s policies regarding those directives. “There have been several instances where administrative action has been taken against facilities that violate the requirements of the PSDA,” Sawicki reports.
Emergency providers should familiarize themselves with hospital policies to ensure their departments are in compliance. Patients, if conscious and competent, can refuse treatment. Liability for failing to honor advance directives is in some ways a logical extension of this. Wrongful prolongation of life lawsuits argue if a refusal of treatment should be honored when provided verbally, it should be equally honored when provided in writing in the form of an advance directive. “Failure to do so violates patients’ rights and may be actionable,” Hopkins cautions.
Additional legal exposure is possible because of physical harm caused by unwanted life-saving interventions. Ribs can be broken during resuscitation efforts. “I have seen ‘life-saving’ actions, contrary to an advance directive, being characterized criminally as assault and battery based on the definition of an ‘unwanted, harmful, or offensive touching by another,’” Hopkins recalls.
Hopkins says ED providers should ask themselves this question: If this patient were conscious and refusing these actions, would I still be comfortable performing them against the patient’s wishes? “Most ED staff would answer very quickly that the answer is no,” Hopkins offers.
EPs are likely to be named in advance directive lawsuits, even if the actual interventions happened in the ICU. “As the top of the healthcare decision-making pyramid, it is the physician who issues the orders regarding how to proceed with treatment, including life-saving measures,” Hopkins notes.
EPs also are obligated to ensure patient records are reviewed for advance directives before proceeding with a treatment plan. “Failure to do so is no different than a physician making any other medical decision without all of the relevant information first,” Hopkins observes.
If the advance directive is never found or it is ignored, and the patient ends up in the ICU, any resulting malpractice lawsuit probably is going to name everyone involved in the care. “The argument is that the ICU staff are continuing the abuse of the patient, because the patient is still being treated after the violation has occurred,” Hopkins says. Most of the blame and liability might focus on the ED. “It was their initial failure that led to all of the subsequent actions and allegations,” Hopkins explains.
Hopkins says training is the best way to avoid these lawsuits. Triage staff should be seeking as much information as possible from the patient and/or family about any possible advance directive, and document what they find. “No matter what the response to the questions, make sure that it is documented,” Hopkins stresses.
That way, if the patient or family later claims nobody ever asked them about an advance directive, the record proves otherwise. This can shift the liability from the ED to the family member or patient who failed to disclose that information, because the ED can establish that an effort was made to find out. “ED staff will have a defense to a potential lawsuit when the advance directive is later discovered,” Hopkins says.
Most wrongful prolongation of life claims center on resuscitation of a patient with a DNR or Do Not Intubate order. “These are usually treated like negligence cases, with the usual rules for standard of care, expert testimony, and the like,” says Thomas William Mayo, JD, professor of law at SMU in Dallas.
Claims can be brought against an EP who performs the resuscitation despite an unmistakable order in the chart or bracelet. “Liability will turn on the factual details of individual cases,” Mayo says. There are important fact issues to consider:
- How emergently did the patient need resuscitation — immediately upon arrival, or several hours later? “A possible defense for ED providers is that an extremely urgent emergency presentation made it impossible to check for an out-of-hospital DNR,” Mayo notes.
- Would a reasonable ED team have noted the patient’s resuscitation status (if any) and shared it among the treatment team? “Some courts are reluctant to entertain these claims because, as with wrongful life claims on behalf of infants, the courts are reluctant to consider life to be a legal harm,” Mayo explains.
Under some circumstances, unconsented resuscitation may give rise to a battery claim. “This is an intentional tort and as such, it may give rise not only to compensatory damages for an unconsented harmful or offensive touching but also to punitive damages,” Mayo says.
In the ED, many patients who need resuscitation are unconscious. “Presumed consent” to life-saving interventions is the general rule. “Battery will be difficult to prove unless the team overlooked a DNR bracelet or other obvious indication that the patient does not consent to resuscitation,” Mayo offers.
Ryan R. Nash, MD, MA, has reviewed multiple “wrongful prolongation of life” cases as an expert witness, and advises hospitals on how to avoid these lawsuits. Nash says the transition between the ED and ICU or inpatient floor is the root of the problem in some cases. The EP does put the DNR status in the notes, but somehow it never is conveyed to the physician who is writing the admit orders.
“Even when the ED does its job and the DNR status is documented all over the chart, it gets lost in the transition between the ED and the inpatient side,” says Nash, director of The Ohio State University Center for Bioethics.
In other cases, everything is handled correctly. The DNR order is in the chart, the bracelet is on the patient — but clinicians panic in the heat of the moment. “When they resuscitate someone who has a DNR bracelet on their body, that’s called malpractice,” Nash says.
In one such episode, clinicians noticed the DNR bracelet, but it was 45 minutes after resuscitating the patient. Nash suggests a few tips to avoid problems:
- Everyone caring for the patient must take responsibility to check DNR status. “Whose responsibility is it to check the chart and verify the bracelet? Everybody who enters the room,” Nash stresses.
- Clinicians can categorize patients who are likely to need resuscitation as a “predicted code.” That way, ED staff anticipate the need for CPR, and can decide on a plan of action based on the patient’s code status.
- ED clinicians can become familiar with protocols and policies on DNR status. “You can make a lot of good policies, but the failing is the education of the staff,” Nash notes.
One good way to educate staff is by sharing information on recent successful advance directive lawsuits. “I encourage hospitals to tell these stories as cautionary tales,” Nash says. “It’s a surprise to many people who didn’t think that resuscitating someone who’s DNR opens them up to liability.”
- Span P. Filing suit for ‘wrongful life.’ The New York Times. Updated Jan. 26, 2021.
- Anderson v. St. Francis-St. George Hosp., 671 N.E.2d 225 (Ohio, 1996).
- Allore v. Flower Hosp., 699 N.E.2d 560 (Ohio Ct App, 1997).
- Wright v. Johns Hopkins Health Sys. Corp., 728 A.2d 166 (MD, 1999).
- Taylor v. Muncie Med. Inv’rs, 727 N.E.2d 466 (Ind Ct App, 2000).
- Scheible v. Joseph L. Morse GeriatricCtr., Inc., 988 So. 2d 1130 (Fla Dist Ct App, 2008).
- Cronin v. Jamaica Hosp. Med. Ctr., 875 N.Y.S.2d 222 (NY App Div, 2009).
- Lanzetta v. Montefiore Med. Ctr. (Bronx Sup Ct NY, Feb. 2021).
- Greenberg v. Montefiore Hosp. (Bronx Sup Ct NY, Feb. 5, 2021).
- Hodge SD. Wrongful prolongation of life — A cause of action that may have finally moved into the mainstream. Quinnipiac Law Review 2019;37:167-198.
- Doctors Hosp. of Augusta, LLC v. Alicea, 788 S.E.2d 392 (GA, 2016).