Wrongful death, wrongful life, emotional distress: Death in the ED: A complex event

By Gaurav Arora, MD, Department of Emergency Medicine, Indiana University School of Medicine, Indianapolis; Gregory P. Moore, MD, JD, Department of Emergency Medicine, Indiana University School of Medicine, Indianapolis.

Editors Note: Emergency physicians should be outraged by the facts presented in a Louisiana lawsuit predicated on the successful resuscitation of a 2-year-old. The case supports the timeliness and necessity of this issue, which deals with the delicate issue of death and dying in the emergency department (ED). The case involved a 2-year-old child who almost drowned in a swimming pool.1 The child was found by a neighbor, who was a nurse, and cardiopulmonary resuscitation (CPR) was started. Emergency medical technicians (EMTs) continued resuscitation efforts. After the child arrived at the ED, the ED physician continued with resuscitation efforts. After a 34-minute resuscitation in the ED, the decision was made to discontinue resuscitation, as no signs of success had been established. Within a few seconds, ED personnel felt a pulse, and the cardiac monitor showed a viable rhythm. The patient was later transferred and, unfortunately, suffered severe neurologic damage.

The parents sued, claiming that the physicians who participated in the resuscitation should have known that the patient would suffer brain damage even if revived. They also alleged the standard of care was to cease efforts after 30 minutes if no signs of pulse or blood pressure were obtained. Fortunately, the parent/plaintiff’s own experts would not support a claim that the standard of care was breached by the physicians in this case. There also was evidence in the medical record that during resuscitation efforts the patient had a pulse on two separate occasions prior to that found at 34 minutes. Interestingly, the plaintiff could not get an expert to definitively state that there is a 30-minute standard, which, apparently, the plaintiffs and their attorney created independent of medical evidence to support their claim.

The authors present a fascinating discussion on the medicolegal issues that may arise in the resuscitation of patients. There is a summary of the medical literature regarding arrest cases, cases of patient claims of wrongful life and wrongful birth, and negligent infliction of emotional distress. There also is a discussion and review of the acceptance of practicing procedures on the newly dead. These all are issues that ED physicians face on a routine basis. Knowledge of the medical and legal standard will help make these encounters less stressful in the ED physician’s daily practice.

The number of critically ill patients presenting to EDs continues to increase, and more patients are dying en route to or upon arrival to the hospital. Patients often cannot provide a medical history, communicate with medical personnel, or consent for treatment. They frequently arrive at the ED without any advance directive documents. This uncertain and confusing situation leads to many questions. When is someone actually dead? Should resuscitation be initiated or continued? What are the physician’s obligations for the emotions of relatives? If the patient dies, does the physician need consent to practice procedures on the body? These are complex issues that involve both medical and legal considerations. This issue of ED Legal Letter discusses answers to these questions.

Clinical Considerations

Medical Death

Physicians follow standard advanced cardiac life support (ACLS) protocols when patients present in cardiac arrest. If, despite medical treatment, the patient’s condition does not improve, the physician is faced with the difficult task of pronouncing death. A physician has both a duty to utilize resources efficiently and preserve life when feasible. When can we decide with confidence that further resuscitation will not benefit the patient? To answer this question, it is crucial to have an understanding of the long-term outcomes of patients with cardiac arrest.

When collapse secondary to cardiopulmonary arrest is neither seen nor heard, it is considered unwitnessed. One-third of total cardiac arrests are unwitnessed.2 In a study of 162 unwitnessed arrests in whom resuscitation was attempted, only eight (4.9%) survived to discharge.3 Of the eight survivors, two (25%) were hypothermic, two (25%) were intoxicated, and one (12.5%) was an attempted hanging. Only two patients with unwitnessed cardiopulmonary arrest of cardiac origin survived. The authors of this study stated, "Withdrawal of resuscitation should be considered if an adult victim of unwitnessed cardiac arrest is found in asystole and the arrest is obviously of cardiac origin." 3 Resuscitation should be more prolonged in arrests deemed to be of noncardiac origin (i.e., hypothermia or intoxication).

In a study including 313 patients with in-hospital cardiopulmonary arrest, 50 patients (16%) survived to hospital discharge.4 An initial rhythm of asystole, ventricular tachycardia, and duration of resuscitation significantly affected outcome. Only 1.9% of patients in asystole survived to discharge, compared with 33.3% of patients in ventricular tachycardia. As the duration of arrest increased, survival to discharge decreased correspondingly.4 Patients with unwitnessed arrests and those in asystole tend to have poor outcomes, whereas those in ventricular tachycardia or ventricular fibrillation demonstrate a higher rate of survival.4-6

A recent study attempted to help physicians make decisions regarding resuscitation of cardiac arrests.7 Patients analyzed were older than 16 years of age, initially pulseless, and the first chest compressions were delivered within 15 minutes of when the cardiac arrest was discovered. The authors assumed patients had the optimal chance for recovery and subsequent hospital discharge if any of the following were true: The arrest was witnessed; initial rhythm was ventricular tachycardia or ventricular fibrillation; or pulse was regained within the first 10 minutes of CPR.

Patients who did not satisfy any of these three criteria were considered to have no chance for survival and discharge. This study included 2,181 attempts at cardiac resuscitation. The patient survived to discharge in 327 (15%) of the resuscitation attempts. Of all the patients who survived, only three (0.9%) did not demonstrate any of the criteria for survival; all three required skilled nursing facilities after discharge, and one suffered severe neurologic disability. There were a total of 269 resuscitations in which the patients were predicted not to survive to discharge. Overall, 1.1% of patients whose arrests were considered nonsurvivable did survive to discharge.7

These criteria can assist a physician in making difficult decisions during a medical resuscitation. Patients who do not meet any of the three criteria outlined above have a grave prognosis and are less likely to benefit from resuscitative efforts.

Traumatic Death

Controversies exist regarding the management of trauma patients who present in cardiac arrest. Historically, this group of patients has a poor prognosis. If there is no response to standard medical therapy, the invasive ED thoracotomy may benefit a small group of these patients.

In a review of 245 patients who suffered cardiac arrest after trauma was conducted, only six (2.4%) patients survived to discharge.8 All of the survivors had a Glasgow Coma Score (GCS) of at least 9 at the scene. No patient with cardiac arrest and severe neurologic injury survived. According to the authors, no patient with post-traumatic asystole or arrest duration longer than 10 minutes survived. No patient survived ED thoracotomy, while two survived operating room thoracotomies. The thoracotomies were done at the discretion of the evaluating physician.8

Another study retrospectively reviewed 950 consecutive patients who underwent ED thoracotomy over a 23-year period.9 This procedure was performed on any patient without a palpable blood pressure or pulse after acute injury, or at the physician’s discretion when, despite fluid resuscitation, a systolic pressure of 70 could not be maintained. When vital signs were present in the field, approximately 9.5% of patients undergoing this procedure survived neurologically intact. This outcome decreased to 1.9% when patients were initially without vital signs in the field. Overall, 1% of those with blunt trauma who received thoracotomies survived neurologically intact. All of these patients had vital signs in the field. Patients with penetrating trauma had a 6% rate of surviving neurologically intact (4% of gunshot wounds and 12% of stab wounds survived neurologically intact). There was a 16.4% survival rate for patients with penetrating trauma who demonstrated vital signs in the field, compared to 3.6% for those without vital signs in the field.9

Victims of traumatic arrest require immediate rhythm monitoring and vital signs upon arrival to the ED. Patients suffering from blunt trauma, without vital signs in the field or ED, and who demonstrate asystole, should be pronounced dead. Blunt trauma patients who arrest and have vital signs upon presentation to the ED have a small but real chance of benefiting from a thoracotomy. Patients with penetrating trauma in cardiac arrest have an improved outcome following emergent thoracotomy. In the absence of vital signs upon arrival to the ED, patients with thoracic wounds may still benefit from ED thaoracotomy. (See Table 1, below.)

Table 1. ED Thoracotomy Algorithm9
Blunt Trauma

1. Stop resuscitation if patient has no vital signs and demonstrated asystole in the field.

2. Stop resuscitation if there are no vital signs and patient is asystolic upon arrival to the ED.

3. If patient has vital signs or organized rhythm in the ED and deteriorates, consider ED thoracotomy.

Penetrating Trauma

1. Stop resuscitation if patient in the field has no vital signs, is asystolic, and has no thoracic wound.

2. Stop resuscitation if patient, upon arrival to the ED, has no vital signs, demonstrates asystole, and has no thoracic wound.

3. If patient has vital signs, organized rhythm, or a possible thoracic injury in the ED, consider thoracotomy.

Neurologic Death

For a physician to declare brain death, a patient may not have any of the following conditions: severe electrolyte, acid-base, or endocrine disturbances; severe hypothermia (core temperature lower than 32°C); hypotension; drug intoxication, poisoning, or recent paralytic use; or other conditions that may confuse assessment. When these circumstances have been excluded, a neurologic exam to evaluate for coma, brainstem function, and apnea is necessary. (See Table 2, below.) Motor response to painful stimuli may assess the depth of coma. An attempt then should be made to elicit brainstem reflexes, including pupillary reflex, corneal reflex, oculovestibular response, and cough reflex. For the apnea test, the patient must be preoxygenated and the ventilator disconnected. Apnea is confirmed if the partial pressure of carbon dioxide elevates to greater than 60 mmHg, or 20 mmHg above baseline. For patients younger than 18 years, an observation period of at least 12 hours is recommended before brain death is declared.10

Table 2. Steps to Assess Brain Death10

1. Ensure that there is no motor response and that eyes do not open to painful stimuli to supra orbital nerve or nail bed.

2. Assess brainstem reflexes:

  • Check grimace or eye-opening with deep pressure on both condyles at temporomandibular joint (cranial nerves V and VII).
  • Touch edge of cornea to check for blinking of eyes (V and VII).
  • Check pupils for constriction to light (II and III).
  • Determine whether cold stimulus causes movement of eyes toward stimulus (VIII, III, and VI).
  • Check whether suction catheter in trachea elicits cough (IX and X).

3. Apnea test:

  • The patient’s core temperature should be at least 36.5°C, systolic blood pressure should be greater than 90 mmHg, and a positive fluid balance should be main- tained for at least six hours.
  • Preoxygenate with 100% O2 for 10 minutes. When partial pressure of arterial oxygen is greater than 200 mmHg and carbon dioxide is greater than 40 mmHg, the ventilator is disconnected.
  • Observe chest and abdominal wall for respiration for eight to 10 minutes. If the partial pressure of arterial carbon dioxide increases to 60 mmHg or at least 20 above baseline, apnea is confirmed.

Confirmatory tests to declare neurologic death are mandatory in several countries around the world. In the United States, the tests are recommended in children younger than age 1, but otherwise are optional. These tests include cerebral angiography, electroencephalography, transcranial Doppler ultrasonography, and cerebral scintigraphy. The physician must exercise caution when using the clinical criteria for death in the ED. There are many conditions such as hypothermia, shock, and drug intoxication that cause symptoms mimicking brain death. A period of observation as an inpatient may be necessary to prevent misdiagnosis.10

Legal Considerations

Legal Death

Historically, death was pronounced when the heart stopped beating. The addition of brain death criteria added some ambiguity to the subject. So, when is someone legally dead? The Ad Hoc Committee of Harvard Medical School examined the definition of brain death in 1968. The characteristics of "irreversible coma" they described included unreceptivity and unresponsitivity, no movements or breathing, no reflexes, and flat electroencephalogram (EEG).11 These published criteria spurred medical, public, and legal debate over the issue. Should physicians unilaterally be able to change the definition of death, or should the public and legislature be involved?12

In 1970, Kansas became the first state to acknowledge both brain death and cessation of cardiac and respiratory function as medical and legal definitions of death. These two definitions were listed in statute separately, and led to some confusion of whether one or both of these conditions was necessary to pronounce death. This statute also proclaimed, "Death is to be pronounced before artificial means of supporting respiratory and cardiac function are terminated."13

In 1980, the Uniform Determination of Death Act clearly stated that either irreversible loss of cardiopulmonary function or irreversible loss of brain function (including the brainstem), as determined by accepted medical standards, constitutes death.14 This statute has since been adopted by all states. The specific definitions of brain death were not defined, and have been left to the discretion of physicians.

The Decision to Resuscitate

Emergency physicians are at times faced with the difficult decision of whether or not to resuscitate a patient. In most circumstances, the patient and family are unfamiliar to the physician. Also, there may not be advance knowledge of the existence of advance direct-ives such as a living will, a do-not-resuscitate (DNR) order, or a durable power of attorney for health care decisions. Advance directives are statements requesting that specific aspects of medical care be discontinued. Individual states vary on details regarding who can establish a living will, when it can be made, and the duration of such a document. Some states limit withdrawal of care to terminally ill patients, while others include patients in persistent vegetative state. Physicians should familiarize themselves with local forms and laws governing this subject.

(Editor’s Note: In the absence of such provisions, the emergency physician should err on the side of paternalism and protect the patient. This concept is supported in the wrongful death and wrongful life cases that follow. The stabilization and treatment of a patient should be the first priority. Without legal evidence of a patient’s wishes, there is an obligation to continue treatment. The admitting physician in these circumstances can sort out which family member may have the legal authority — and perhaps even advance directive documents — required to make health care decisions. Frequently, a court-appointed guardian may be needed. Remember, the family members who are present may not be acting in the patient’s best interest or have legal authority to do so. If, at the end of resuscitation efforts, the ED physician feels continuing efforts would be futile, he is not obligated to continue.)

Wrongful Death

Wendland v. Sparks.15 Plaintiff’s wife, Callie Wendland, was admitted to Davis County (IA) Hospital on Jan. 31, 1994, to regain her strength. She had multiple hospital admissions in the two months prior for several medical conditions, including multiple myeloma (in remission at the time) and fibrotic lung disease. On Feb. 24, 1994, at approximately 4:40 a.m., she was found unresponsive and in cardiopulmonary arrest. Dr. Sparks was contacted and readily assessed the patient. Dr. Sparks decided not to attempt resuscitation despite the patient’s "full code" status.

According to one of the nurses, Dr. Sparks stated, "I just can’t do it to her," and instructed the nurses not to resuscitate the patient. Dr. Sparks did not recall making that statement, but did acknowledge instructing the nurses "no code would be made," or that no resuscitative efforts would be initiated. One nurse testified that the nurses would have initiated CPR and attempted resuscitation had Dr. Sparks not been there. Dr. Sparks testified he was "very aware of [the patient’s husband’s] desire to see her on a ventilator again if she needed it."

Dr. Sparks also knew that Ms. Wendland successfully had been resuscitated from respiratory failure in the past. One nurse testified the doctor’s order to withhold resuscitation was "an act of mercy." If revived, she may have suffered a poor quality of life; however, this was not the issue being contested.

Lawrence Wendland, the patient’s husband, sued Dr. Sparks and the hospital for failure to administer CPR and medical resuscitation. The defendants argued that their actions were not the proximate cause of Callie Wendland’s death. They contended that she would have died soon anyway. Although the plaintiff was unable to prove proximate cause, the court ruled in favor of the plaintiff, applying the "lost-chance" theory. According to this theory, when a patient with a pre-existing condition suffers from an unrelated injury that is not treated appropriately, he or she has lost the chance of surviving or recovering from the pre-existing condition.

In this case, though Callie Wendland suffered from chronic illnesses, the inadequate treatment of her cardiopulmonary arrest precluded her from surviving her illnesses. The loss of chance is assessed independent of the preexisting condition. Traditionally, a loss of chance of greater than 50% was necessary to receive compensation. This court ruled that even a small chance is significant and recovery should be based on the percentage of lost chance.

When patients make specific requests regarding their own care, these requests should be respected and observed. Physicians should not substitute their own values set for those held by the patient, and those who desire resuscitation should be resuscitated. When circumstances are unclear, physicians should err on the side of resuscitation. This case also demonstrates that specific remarks made during patient care may be used as evidence in court proceedings. Physicians should avoid making incriminating or disparaging remarks regarding the care of patients.

Wrongful Life

Anderson v. St. Francis.16 This case addresses the issue of "wrongful life." Edward H. Winter was admitted to St. Francis-St. George Hospital on May 25, 1988, with chest pain and syncope. After discussion with his physician, Dr. Russo, Mr. Winter decided to be a "no code" — a patient not to be resuscitated in the case of cardiopulmonary arrest. His wife had suffered after a medical resuscitation, and he did not want the same for himself. Dr. Russo wrote an order to this effect in the chart, but he did not discontinue the patient’s cardiac monitoring.

Early in the morning of May 28, Mr. Winter went into ventricular tachycardia, a potentially lethal rhythm if untreated. A nurse successfully defibrillated him in one attempt, despite the "no code" order in the chart. Mr. Winter immediately expressed his gratitude to the nurse. Dr. Russo subsequently initiated the medication lidocaine in an attempt to prevent further episodes of this lethal arrhythmia. Mr. Winter had another run of ventricular tachycardia a few hours later, which resolved without defibrillation. The next day, Dr. Russo discontinued the lidocaine and cardiac monitoring.

On May 30, Mr. Winter suffered a cerebrovascular accident that resulted in a residual right-side paralysis. He eventually was discharged from the hospital and was able to live with his family for a few months before moving to an extended care facility. Mr. Winter remained physically disabled until his death in April 1990. Throughout this period, his family visited him often and they enjoyed many trips together. Prior to his death, he filed a suit against the hospital for unwanted resuscitation and wrongful living. He claimed he would not have had to suffer life after a stroke if he had not been resuscitated. Upon his death, the administrator of his estate, Keith Anderson, substituted himself as plaintiff.

In a wrongful living suit, the plaintiff seeks damages for the prolongation of life caused by the disregard of a patient’s informed decision to refuse therapy. It is a damages concept (as is wrongful injury) and, thus, proof of negligence or battery is necessary. A negligence claim has four requirements: duty, breach of duty, causation, and damages. A battery claim also needs four components: intention, no consent to touching, causation, and damages. In Mr. Winter’s case, he had the right to refuse medical therapy and the right to die.

Health care professionals have a duty to respect a patient’s wishes and not provide therapies that the patient does not want. Defibrillating a patient who has a "no code" status is a breach of duty. Causation is established by proving that the defendant caused the event and the event would not have happened had it not been for the defendant’s actions. In this case, the medical professional did prolong Mr. Winter’s life with defibrillation. However, Ohio and several other states have refused to place a monetary value on the benefits of life. The Supreme Court of Ohio is reluctant to award damages on the relative benefits of "being vs. nonbeing."17

Wrongful living usually is considered an untenable concept by courts. How could a monetary value for damages be determined for the prolongation of life? The courts are unwilling to compensate for providing life. It is difficult to assess the harm of living when compared to the alternative, death. A patient’s wishes should be respected and wrongful living considered; however, it is difficult to win an award based on this argument. This reinforces the idea that when the situation is uncertain, a physician should err on the side of resuscitation and attempt to sustain life.

Emotional Distress

ED physicians are at risk of litigation for emotional distress when poor outcomes or death occur in the ED. For example, obstetrical emergencies (including miscarriages) or handling of newly dead bodies pose high risk for ED physicians. These situations are stressful for the patient and surviving family, who are subjected to confusing medical procedures and unfamiliar physicians. When patients and their families endure such traumatic events and feel they are mistreated, they may be more likely to file suit. Physicians are expected to be compassionate and to understand and comply with the needs and wishes of their patients.

To recover on an action for intentional infliction of serious emotional distress, four elements must be proved: 1) that the actor either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to the plaintiff; 2) that the actor’s conduct was so extreme and outrageous as to go "beyond all possible bounds of decency" and was such that it can be considered as "utterly intolerable in a civilized community" 3) that the actor’s actions were the proximate cause of the plaintiff’s psychic injury; and 4) that the mental anguish suffered by the plaintiff is serious and of a nature that "no reasonable man could be expected to endure it."18 It is not necessary that bodily injury or any physical impact be shown.19

Oswald v. LeGrand.20 Susan Oswald was approximately 20 weeks pregnant when she presented at the office of her primary care physician, Dr. Smith, complaining of vaginal bleeding and cramping. An ultrasound was ordered and she was referred to Dr. LeGrand, an obstetrician. Ms. Oswald was examined by Dr. LeGrand and released without a diagnosis for the bleeding. Her bleeding worsened, and she returned to Dr. Smith’s office later that day. The bleeding stopped, and another examination by Dr. Smith did not identify the reason for her continued bleeding. Ms. Oswald was released the next day with instructions to rest. The following day, her bleeding and cramping worsened. She feared she was miscarrying and went to the ED. Dr. Clark, a colleague of Dr. Smith and Dr. LeGrand, examined her and recommended she return home. Ms. Oswald and her husband insisted upon her being admitted. Dr. Clark subsequently admitted her to the labor and delivery department.

Upon her arrival to the ward, a nurse stated, "What are you doing here? The doctor told you to stay home and rest," and another nurse told her that if she miscarried, it would be "a big blob of blood" rather than a baby. These encounters upset Ms. Oswald. The next morning, Dr. Clark was outside Ms. Oswald’s room shouting, "I don’t want to take that patient. She’s not my patient and I am sick and tired of Dr. Smith dumping his case load on me." Dr. Clark apologized to Ms. Oswald and told her he would care for her until noon, when he was leaving on vacation, and Dr. LeGrand would be covering for him.

Dr. Clark scheduled an ultrasound and amniocentesis that morning as Ms. Oswald continued to have increased pain and possible contractions. Ms. Oswald was screaming in pain when Dr. Clark arrived midway through the ultrasound in radiology. He noted there was insufficient amniotic fluid and told the Oswalds this was uncommon; however, he did not reveal that he suspected an infection in the uterus. Ms. Oswald continued to insist that she was in labor and was about to deliver. Dr. Clark transferred her to the floor and left for vacation. In the hallway outside radiology, Ms. Oswald began delivering her baby. Ms. Oswald’s husband lifted her sheet and "saw [his] daughter hanging from her belly." After Mr. Oswald kicked a glass door open to get medical staff’s attention, Ms. Oswald was transported to the delivery room, where she gave birth to a one-pound girl.

The nurses present were unable to detect a heartbeat or spontaneous respirations and declared the baby stillborn. Dr. LeGrand arrived 10 minutes later and checked the gender at Ms. Oswald’s request. He offered his condolences and departed without further examination. Soon afterward, Mr. Oswald touched the baby’s finger, and the baby grasped his finger. Initially, the nurses believed this was only a reflex; however, they later determined the baby was alive. The baby was taken to the neonatal intensive care unit approximately 30 minutes after her birth. The infant received comfort care measures and died 12 hours later.

The Oswalds claimed damages for severe emotional distress. The trial court initially granted a summary judgment for the defendants. The appeals court, however, felt further proceedings were necessary. The relationship between the Oswalds and the various physicians was one in which the court determined the physicians had a duty to avoid causing emotional harm. This duty arose as a result of Ms. Oswald’s precarious situation and high risk of miscarriage. Laypersons would be able to determine the breach of professional courtesy without expert testimony. The initial statements made by the nurses and Dr. Clark upon Ms. Oswald’s arrival to the ward were unprofessional. The court stated that there must be both extremely rude or insensitive behavior of the service provider and extraordinary vulnerability of the patient in order for the plaintiff to be awarded damages.

Any situation involving death in the ED places relatives in an emotionally vulnerable position. Health care professionals should strive to provide sensitive care while avoiding inflammatory actions and statements that may cause further emotional distress to family members. Incorrectly pronouncing a patient dead is both embarrassing and dangerous. The physician must thoroughly assess an individual prior to declaring death.

Seitz v. Humana of Kentucky, Inc.21 A pregnant woman, Ms. Seitz, was admitted to Humana Hospital on Feb. 28, 1985, with prematurely ruptured membranes. She experienced pain on March 10, was checked by a nurse, and was informed she was not in labor. She continued to have pain overnight and was treated with pain medication. At approximately 6 a.m. on March 11, Ms. Seitz attempted unsuccessfully to contact the nurses. She believed the nursing staff intentionally disconnected her call light. Shortly after breakfast and a vital sign check at 7 a.m., Ms. Seitz began to have abdominal pain. She felt she may have to use the bathroom and her roommate recommended she use a bedpan. When Ms. Seitz began to deliver her baby into the bedpan, her roommate attempted to contact nursing. She tried her call light, and when that did not work, she yelled for help in the hallway.

A cleaning woman eventually responded and nursing staff was summoned. Between 12 and 15 minutes elapsed from the beginning of delivery to the nurses’ arrival in the room. The patient was becoming hysterical and one of the nurses told her to "shut up." Shortly thereafter, the obstetrician arrived and examined the fetus and the patient. He pronounced the fetus dead. A nurse wrapped the body in a sheet and when asked what they would do with it, she replied, "Honey, we dispose of them right here in the hospital."

Ms. Seitz claimed the hospital was liable for outrageous conduct through the actions of the nursing staff. The tort of outrageous conduct was adopted in the case Craft v. Rice.22 Outrageous conduct must be intentional or reckless and be so despicable that it would be considered unacceptable in society. The actions of the perpetrator must cause the emotional distress, and the distress must be severe.

In this case there was no proof the call light in Ms. Seitz’s room was intentionally disconnected. The delay in the arrival of the nursing staff the morning of the miscarriage was deemed neither intentional nor outrageous. The use of the phrase "shut up" by nurses may have been necessary to calm Ms. Seitz and preserve peace in the hospital. And lastly, the comment regarding disposal of the fetus was insensitive, but not outrageous. The conduct of the nursing staff in this case was not found to satisfy the conditions of tort of outrageous conduct.

Arnaud v. Odom.23 A 1989 Louisiana case addressed an unusual example of experimentation on the newly deceased.23 A coroner, Dr. Odom, anticipated being called to testify as an expert witness in an investigation in which he had stated that a skull fracture in a child was accidental. Another forensic pathologist determined intentional abuse as the cause of death. Dr. Odom, to confirm his theory, dropped two newly dead infants, head-first, onto the floor in a laboratory. He then x-rayed the skulls to assess damage, then performed the mandated autopsy required when infants die of sudden infant death syndrome. An employee divulged his practices.

Both sets of parents brought action claiming the state had deprived them, without due process, of their constitutional property right to have the bodies of their infants without mutilation. The court noted that Louisiana had recognized a quasi-property right of survivors in their deceased relatives’ bodies, but stated that this did not rise to the level of a constitutional liberty interest or right and that there was ability to seek remedy via tort actions. It noted that the due process clause of the 14th Amendment protects freedom from bodily restraint, to contract, to work, to education, to marry, to establish a home and raise children, to worship God, and other privileges essential to pursuing happiness. However, Louisiana awards damages for unauthorized tampering with a corpse, due to the emotional distress this may cause.23

These cases apply directly to the setting. Death is not an infrequent ED occurrence, and again, physicians and hospitals have a duty to dispose of bodies with respect and dignity, or they may be liable. Attention to the emotions of the surviving family must be considered and attended to.

Post-Mortem Procedures

Patients may present with life-threatening emergency conditions that require medical professionals to perform critical procedures. Timely and proficient completion of these can determine whether a favorable or, conversely, fatal outcome results. Because these situations are few and far between, there may be deterioration and loss of the skills necessary and essential to perform these critical procedures. Practice optimally is done in models that accurately simulate the actual conditions. Thus, the newly dead cadaver serves as an opportunity to maintain competence to be prepared for the next actual emergent case. Consent rarely is obtained, due to time constraints, availability of family members, and reluctance of the physician to discuss the issue with a family embroiled in a sudden emotional catastrophe.

The Medical Experience

Two ED surveys published in 1999 reviewed patients’ and families’ attitudes toward after-death procedures.24,25 The first survey captured 280 responses (88% response), and of these, 75% and 70%, respectively, hypothetically agreed to after-death procedures on themselves or their relatives.24 Only 40% would allow these procedures without consent. There was no difference in response with regard to the invasiveness of the procedure, but consent was more likely from male, more educated, and older respondents.24

The second survey asked 513 (95% response) participants to imagine that their relative had just died in the ED.25 Of those, 74% would agree to intubation practice, 67% to chest tube placement, 57% to thoracotomy, 55% to cricothyroidotomy (incision in the neck), and 53% to central line insertion. Visible remnants of the procedures, rather than the procedures’ invasiveness, appeared more likely to reduce the positive response rate. Caucasians gave blanket consent to all five procedures more often than African-Americans did. Depending on the particular procedure, 74-87% felt that consent should be obtained prior to practicing the procedure. Some who refused consent commented, "Let the body rest in peace," "I believe the body can still feel pain," and "My relative will not be an experimental guinea pig!"25

In a 1995 prospective study, 44 families were asked to consent to practice wire-guided, retrograded tracheal intubation (which requires a puncture to the anterior neck) soon after the death of their loved one in an ED.26 Consent was given by 26 (59%) of the families. There were no age, sex, or race differences, but consent more likely was given by decedent’s spouses than by their children. In one situation, requesting consent was perceived as increasing the family’s emotional distress.26 That same year, a study was done requesting consent to practice cricothyroidotomy (requiring an incision across the neck) in 51 newly dead patients.27 The authors reported that 39% of families consented, 45% refused, and 16% were too distraught to discuss the issue.28

It is clear that most, but not all, people will consent to the practice of post-mortem procedures on themselves or loved ones. A great majority, when questioned, object to this practice without prior consent. Male, elderly, Caucasian, and more highly educated individuals may be more likely to consent to procedural practice, with concerns about appearance of the cadaver at the funeral a factor in their decision.

Legal Analysis

A comprehensive search of case law reveals no reported case of court action concerning practice on the newly dead for educational reasons without consent. To evaluate whether consent legally is 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 usually are based on property rights and constitutional law, with damages sought for the tort of negligent infliction of emotional distress.

Lacy v. Cooper Hospital/University Medical Center.28 A 1990 New Jersey case was closely on point regarding emotional distress over practice on the newly dead.28 A nurse reported to the plaintiff that an intern physician had performed a procedure on their deceased relative after he had been pronounced dead.

After surgery for a bowel obstruction, Todd Lacy appeared to be recovering uneventfully. One evening, he developed chest pain and was found in cardiopulmonary arrest the following morning. During cardiac arrest, a milky white fluid was obtained during Dr. Dunst’s first attempt at pericardiocentesis. (Normally, no fluid is present.) The second attempt revealed no fluid and Dr. Dunst concluded that the first attempt had entered the stomach. The patient was pronounced dead at this time.

After seeing a bottle of similarly colored fluid at the bedside it was surmised that the first attempt may actually have been around the heart and the resuscitation was started again and a third attempt done. This again produced the milky fluid but no clinical response and the patient was pronounced dead a second time. The physician recognized that the nurse told him not to unethically "practice" on the body, but he testified that he thought there still was a chance for recovery and that is what motivated his actions. The plaintiff argued that the third procedure was performed after Todd Lacy was pronounced dead and was done for practice.

The court reviewed the tort of emotional distress and declared that Dr. Dunst’s actions did not constitute the severity required to award damages and the plaintiff’s acts were neither intentional nor outrageous conduct. Reasonable anger and stress that is not severe does not allow for recovery of damages. The court stated that the court, not a jury, should determine what is severe enough to constitute emotional distress. There was no mention of whether the court believed that the third pericardiocentesis had been done for practice after the patient was dead.28

State of Florida v. Powell.29 The court reviewed an objection to removal of corneas by the medical examiner at autopsy from two victims (without giving notice or obtaining consent from the next of kin) of a car accident and a drowning. The plaintiffs challenged the constitutionality of the controlling state’s statute. The statute allows removal of corneas if: 1) a need arises via an eye bank; 2) the decedent is under the jurisdiction of the medical examiner; 3) no objection of the next of kin is known; and 4) removal will not interfere with a subsequent autopsy or investigation. It does not require that the next of kin be notified. The medical examiner or qualified designee is immune from criminal or civil action for failure to obtain consent. The trial court ruled the statute unconstitutional but this was reversed in the State Supreme Court.29

The Florida Supreme Court began with the premise that a person’s constitutional rights terminate at death. If any rights exist, then they belong to the next of kin. To declare a statute unconstitutional, it must be shown that it "bears no reasonable relation to a permissible legislative objective." The court then provided a practical and economic analysis that stressed the cost of blindness, utility of corneas, lack of acceptable alternative sources to meet the demand, and the time constraints that dictate successful utilization. It also noted that cornea removal is a minimally invasive procedure that does not affect the aesthetics of a funeral. The statute thus does achieve a permissible legislative objective.29

The court also declared that a fundamental property right was not deprived. Citing previous cases, it reiterated that the next of kin have no property right in the bodily remains of a decedent, but instead have a right to possession of the body for the purpose of burial or other lawful disposition. At the time, this view was noted to be universally accepted in the courts. The body itself does not meet any of the components of the definition of property in that it is not an asset of the estate, is not subject to replacement if taken, and cannot be held as security, returned to sender, or given as a gift.29

Brotherton v. Cleveland.30 The wife of a decedent claimed wrongful removal of her husband’s corneas and appealed dismissal by a lower court. After his death, a possible suicide, she was approached about making an anatomical gift, but declined based on her husband’s wishes. This was documented on the report of death. The coroner then allowed the eye bank to remove the corneas. Ohio statute allows for corneal removal, without consent, provided the coroner has no knowledge of an objection by the next of kin. It is not customary for the coroner to inspect the records. Mrs. Brotherton alleged the corneas were removed without due process of law, in violation of the equal protection clause, and claimed emotional distress.30

In its discussion, the court noted the acknowledgment that a property right of some kind exists in a cadaver, often referred to as a "quasi-property right." Previous state courts had ruled this as a legal fiction and instead characterized it as a cause of action instead for mishandling of a dead body that is a subspecies of the tort of infliction of emotional distress.19 Nevertheless, "Ohio does grant that right which resides at the very core of a property interest: the right to possess." The concept of the legal definition of property as a "bundle of rights" defined by the right to possess, to use, to exclude, to profit, and to dispose . . . was reiterated. Thus, although early cases declared that there is no property right in a dead body, the increasing recognition of the next of kin’s right with regards to burial has evolved into the concept of "quasi-property rights." The court then made a legal jump that the previous cases did not, when it held that the aggregate rights of Mrs. Brotherton rose to a legitimate claim of entitlement in her husband’s body. This was constitutionally protected by the due process clause of the 14th Amendment. In contrast to the prior cases, the state interest in tissue donation does not outweigh the individual property rights granted to citizens.30

Putting It All Together

An ethical, medical, and legal view was visited by a hospital ethics committee when confronted with this issue after a complaint by nurses who witnessed the practice of a post mortem medical procedure by a physician.31 Prolonged, contentious, and emotional debate ensued over deep-seated disagreements, and more than two years were spent resolving the issue. The ethics committee’s summary reviews the points illustrated by the research presented in this article to this point, and is worthy of review. Several assumptions were made in studying the question: 1) lifesaving procedures require practice; 2) the practice should be done before the clinical situation arises; 3) alternative models are unacceptable; 4) access to cadavers must occur within two to four hours of death for tissue to be a realistic model; and 5) the lack of a visible wound does not resolve consent issues. Those who advocated practice without consent argued that: 1) if asked, many families would refuse consent; 2) families have no constitutional right to refuse; 3) requests would increase emotional distress; 4) patients implicitly agree to participate to training in a teaching hospital; and 5) if not told, the families would never know it occurred. The committee eventually rejected all these arguments. In arguing that consent ethically is necessary, the committee stated that physicians must respect the bodies of patients whether alive or dead; laws in many states promote respect for cadavers; and consent may promote sensitivity to the family’s grief and give them a sense of control in an unfortunate situation.31

Legal cases and medical literature published subsequent to the ethics committee’s review have supported their conclusions. Ethically, there undoubtedly are opposing views over whether practice without consent is appropriate. However, it is undeniable that we are in a time of increased sensitivity to personal autonomy and individual rights as reflected in both the medical and legal arenas. Traditionally, courts have not viewed any true property rights in a dead body but recently have been willing to re-label and thus change this dogma. While the legal community has argued over the classification of the rights of families in their loved ones’ cadavers, there is no doubt that some kind of a right exists. Regardless of this technical analysis of the law, damages increasingly are being awarded for the emotional distress caused by mishandling of bodies. Medical liability insurance may not cover this type of transgression, placing physicians at significant personal risk if successful litigation ensues.

Patients, in multiple recent studies, have announced that they are usually (but not universally) willing to agree to procedures on loved ones and themselves; however, they expect to be asked first for permission. Although it is uncomfortable for the physician to approach the next of kin in the midst of a personal tragedy, how can one profess the importance of this educationally rewarding practice and not be willing to accept the unpleasant effort of this interaction? It would seem logical that if the procedure is vitally important to practice, then the discomfort of requesting consent is an acceptable and necessary price to pay. An established hospital policy in advance would be optimal. Although the likelihood of a successful lawsuit in these situations is unlikely, the practice of medical procedures on the newly dead without consent of the next of kin is not advised.

Issues surrounding death in the ED often are complex and will be encountered by all emergency physicians. Essential skills to provide optimal care include the ability to recognize death and to communicate with families. These situations frequently are complicated by a lack of information about a patient’s wishes for medical treatment. When information is incomplete, physicians should make every effort to sustain life. When a patient is competent to make decisions, every attempt should be made to respect the patient’s autonomy. Awareness of issues such as definitions of death, resuscitation, emotional distress, and post mortem procedures, can help physicians navigate through clinical events in which legal considerations must be made.

Endnotes

1. Johnson v. Hernandez, No. 01-CA-575, Oct. 30 2001.

2. Spaite DW, Hanlon T, Criss EA, et al. Prehospital cardiac arrest: The impact of witnessed collapse and bystander CPR in a metropolitan EMS system with short response times. Ann Emerg Med 1991; 20:355-361.

3. Kuisma M, Jaara, K. Unwitnessed out-of-hospital cardiac arrest: Is resuscitation worthwhile? Ann Emerg Med 1997; 30:69-75.

4. Ballew KA, Philbrick JT, Caven DE, et al. Predictors of survival following in-hospital cardiopulmonary resuscitation. A moving target. Arch Int Med 1994; 154:2426-2432.

5. Bialecki L, Woodward RS. Predicting death after CPR. Experience at a nonteaching community hospital with a full-time critical care staff. Chest 1995; 108:1009-1017.

6. Pepe PE, Levine RL, Fromm RE, et al. Cardiac arrest presenting with rhythms other than ventricular fibrillation: Contribution of resuscitative efforts toward total survivorship. Critical Care Medicine 1993; 21:1838-1843.

7. van Walraven C, Forster AJ, Parish DC, et al. Validation of a clinical decision aid to discontinue in-hospital cardiac arrest resuscitations. JAMA 2001; 285:1602-1606.

8. Fulton RL, Voigt WJ, Hilakos AS. Confusion surrounding treat- ment of traumatic cardiac arrest. J Trauma 1995; 181:209-214.

9. Branney S, Moore E, Feldhaus K, et al. Critical analysis of two decades of experience with post-injury emergency department thoracotomy in a regional trauma center. J Trauma 1998; 45:87-94.

10. Wijdicks EFM. Current Concepts: The diagnosis of brain death. N Eng J Med 2001; 344:1215-21.

11. Beecher H. A Definition of irreversible coma: Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death. JAMA 1968; 205:337-340.

12. Capron A, Kass L. A statutory definition of the standards for determining human death: An appraisal and a proposal. 121 U.Pa.L.Rev. 87, 91-92 (1972).

13. Kan.Stat.Ann. 77-202.

14. President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Defining Death: A report on the medical, legal, and ethical issues in the determination of death. Washington DC: Government Printing Office, 1981.

15. 574 N.W.2d 327, 1998.

16. 77 Ohio St. 3d 82, 671 N.E.2d 225, 1996.

17. Bowman v. Davis 48 Ohio St. 2d at 45, 2 Ohio Op. 3d at 135, 356 N.E.2d at 499, fn.3, 1976.

18. Restatement of Torts 2d 77, Section 46 comments d,j.

19. Carney v. Knollwood Cemetery Assn., 33 Ohio App.3d 31, 514 N.E.2d 430 18-22 27-29, 1986.

20. 453 N.W.2d 634, 1990.

21. 796 S.W.2d 1, 1990.

22. 671 S.W.2d 247, 1984.

23. 870 F.2d 304, 1989.

24. Manifold CA, Storrow A, Rodgers K. Patient and family attitudes regarding the practice of procedures on the newly deceased. Acad Emerg Med 1999; 6:110.

25. Alden AW, Ward KL, Moore GP. Should post-mortem procedures be practiced on recently deceased patients? A survey of relative’s attitudes. Acad Emerg Med 1999; 6:749.

26. McNamara R, Monti S, Kelly J. Requesting consent for invasive procedures in newly deceased adults. JAMA 1995; 273: 310-312.

27. Olsen J, Spilger S, Windisch T. Feasibility of obtaining family consent for teaching cricothyroidotomy on the newly dead in the emergency department. Ann Emerg Med 1995; 25:660-665

28. 745 F. Supp 1029, 1990.

29. 497 So.2d 1188, 1986.

30. 923 F.2d 477, 1991.

31. Perkins HS, Gordon AM. Should hospital policy require consent for practicing invasive procedures on cadaver? The arguments, conclusions, and lessons from one ethics committee’s deliberations. J Clin Ethics 1994; 5:204-210.