Avoid legal problems with brain-dead patients: Approach families properly

Don’t give away too much responsibility

Terminating life support for a brain-dead patient is never easy. Risk managers and legal experts caution that the decision can lead to difficult court battles if it is not made carefully. The biggest mistake might be giving the family too much authority to make the decision, they say.

The definition of death has been debated in the medical community and in the courts for years, yet risk managers still face thorny situations in which family members or guardians will not accept a doctor’s recommendation to discontinue life support for a patient whose recovery is hopeless. Such situations quickly can become disputes with little likelihood of a good resolution because the hospital might be forced to seek a court order terminating medical care against the family’s wishes.

Steve Johnson, director of risk management for Wellstar Health System in Marietta, GA, says he has encountered such a dilemma three times, and all were challenges. In each case, the clinicians caring for the patient determined that the patient was brain dead and suggested to the families that they discontinue life support. The families refused, even after doctors and others at the hospital tried to educate them on the finality of brain death, but the medical staff felt strongly that they should not continue caring for a dead patient.

"It can be either that the family is not informed well, or they can be informed and just have a very strong difference of opinion," Johnson says. "Families can misinterpret reflex movements as signs that the patient is coming back, or they can just be very hopeful. We’ve had cases where families resisted initially but then gave in when we educated them, but we’ve had others with very strong beliefs that there is going to be a miracle."

Difficult when push comes to shove

When the family resists efforts to end life support, Johnson says hospital staff are in a quandary. Staff don’t want to actively oppose the family on such a delicate issue at such a difficult time for them, but staff also can feel strongly that it is not right to keep a dead body artificially breathing. In addition to the ethical and moral reasons for not continuing life support, staff can be troubled by the likelihood that the patient’s organs will shut down, making organ donation impossible.

The Wellstar system tries to head off such difficulties by encouraging patients to complete advance directives and designate only one person in the family as a spokesperson and decision maker. When a conflict arises, the doctors will involve clergy members, counselors, and, eventually, the risk manager in an effort to persuade the termination.

"The risk management office gets involved when all efforts from the direct care providers have failed," he says. "We’re the last step in the chain to assist, and we’re there because there is the possibility that the facility will have to go to court to get the life support terminated. We wouldn’t do that unless we had every provider behind us and we had exhausted every possible alternative. It is very much a last resort to go to court."

Johnson seriously considered seeking a court order in one case. A long-term patient entered a vegetative state, and all the evaluating health care providers agreed there was no brain function. The family refused to discontinue life support, hoping for a miracle. Several weeks passed, and Johnson was looking into the possibility of a court order when the rest of the patient’s body shut down, resolving the issue.

Avoid confrontation by taking charge

One attorney says the best approach is to avoid getting into such a confrontation in the first place. While most risk managers already understand the benefits of educating family members about the nature of brain death, do-not-resuscitate (DNR) orders, and advance directives, Edmund Gronkiewicz, JD, says you should pay more attention to how clinicians present the situation to family members. Now with the law firm of Hinshaw & Culbertson in Chicago, Gronkiewicz has represented hospitals since 1968 and says every risk manager will encounter this kind of dilemma several times in a career.

"In most cases like this, the genesis of the problem is an attempt to get permission to do something you didn’t need permission to do," he says.

How much is too much?

Many clinicians make the mistake of giving the family too much authority and responsibility in determining when to discontinue life support, he says. The statutes of individual states may come into play when determining how to legally declare a patient dead, but Gronkiewicz says that should be a medical decision made by medical professionals. Once the professionals decide the patient is dead, the family should be informed that medical treatment, not life support, will be discontinued because the patient is dead.

The distinctions are important, he stresses. In such a difficult moment for the family, it makes all the difference in the world how the information is presented.

"People often put the cart before the horse by saying they will remove the life support systems and declare the person dead," he says. "That is confusing. The family can infer that the person is really alive, but the removal of the life support system will end the life. That’s different from saying the person already is dead and therefore we will not continue medical care."

Patients don’t need to be burdened

When the situation is presented to the family poorly, they can feel a tremendous burden to make a decision to "end" the life of their loved one, Gronkiewicz says. In most cases, that is unnecessary.

"If you say you want permission to cut off the life support system on their brain-dead loved one, you’ve already created your monster," he says. "You have to show that the patient is dead by all standards and say you are ceasing treatment, period. If you approach it that way, you cut out a lot of potential problems, and you don’t have to deal with the question of how to oppose the family’s wishes. And actually, you’re doing the family a favor by not asking them to make a decision that will be painful and is totally unnecessary."

Gronkiewicz acknowledges that risk managers may be uneasy urging clinicians to unilaterally make such decisions, but he points out that doctors are trusted to make such important calls all the time. He theorizes that the whole debate over when to declare a patient dead is the result of society’s disdain for the old-fashioned paternalism that used to be common with doctors. Now doctors are encouraged at every turn to get the patient involved in the decision-making process and to present alternatives for care. Though that approach may be sound in most situations, it is inappropriate when determining a patient’s death, he says.

"If your medical professionals have carefully and accurately determined that the person is dead by legally accepted standards, no one can demand that you provide medical treatment to a dead body," he says. "If someone is brought into the emergency room and the doctor determines the patient is dead, even after trying to resuscitate, the family can’t just demand that you keep massaging the heart and applying shocks forever."

Before approaching the family, Gronkiewicz says, doctors uninvolved in the patient’s care should go beyond what is legally required to determine the patient’s death. Many states recognize two flat EKGs in a 24-hour period as indicative of brain death, for instance, so providers in those states could obtain three flat EKGs in a 36-hour period. That information can be presented to the family as proof beyond any reasonable doubt that the patient is dead. If the family is skeptical, you can explain that you went beyond what is required by law because you wanted to be sure.

That extra precaution also provides a basis for a defense if the family sues later.

Gronkiewicz is not suggesting that doctors simply discontinue life support for an intensive care patient without talking to the family first. He sees nothing wrong with that from an ethical standpoint, and it may even be technically OK from a legal standpoint, but as a practical matter, it might be seen as too callous if the family decided to sue later on, and it could even prompt the family to sue.

The right approach won’t prevent all confrontations with the family or guardian, but it will prevent most, he says.

Gronkiewicz points out that it is far better to avoid the confrontation altogether because, inevitably, a dispute will result in bad publicity and is not likely to resolve with anyone truly pleased. Once the family and the hospital are on opposite sides of the issue, there may be no turning back. If the hospital is not prepared to continue life support indefinitely, the only option may be seeking a court order to discontinue it.

Know your state’s laws

In a 1999 case, Johnson consulted with Wellstar’s outside counsel, Henry Green Jr., JD, of Browning & Tanksley in Atlanta. Green told Johnson that Georgia law is unclear on the question, leaving risk managers without firm legal footing. Pertinent case law will vary from state to state, and Green advises Healthcare Risk Management readers to consult attorneys familiar with their own state’s case law. But Green tells HRM he would expect many risk managers in other states to find themselves in the same dilemma as Johnson.

According to Green’s analysis, case law in Georgia makes it clear that hospitals can discontinue life support without any court intervention when the family or guardian agrees, but the law provides no support for hospitals when the family or guardian wishes to continue treatment.

The relevant case, Green says, is In re: Jane Doe, 262 Ga. 389, 418 SE2d 3 (1992). In this case, a 12-year-old girl with a history of medical problems suffered a demyelinating brain-stem disorder of unknown etiology, soon becoming comatose and entirely dependent on a respirator. The physicians wished to institute a DNR order, but only one parent consented. The hospital sought a court order to allow the DNR, but by the time of the hearing, both parents opposed it.

The young girl died before the Georgia Supreme Court could rule on the issue, but the court went ahead and issued an opinion. The court noted that while the physicians were recommending DNR orders, the hospital had not argued that continuation of life support constituted "medical abuse."

"The question presented to the court, therefore, was simply, when the physicians recommended discontinuance, and the persons authorized to consent refused to do it, did the physicians and the hospital have the right to discontinue life support anyway?" Green wrote to Johnson when providing legal advice on a similar case. "The answer was no. The court held that where the persons authorized to give consent under law refuse to do so, their wishes could not be overridden."

Green’s advice to Johnson was to follow the wishes of the family or guardian unless he were willing to pursue an ugly and very public court battle. And even then, the hospital would have to argue that continuing the life support would constitute "medical abuse," prolonging death, rather than life.

Other than changing the family’s mind or going to court, the only alternative might be to transfer the patient to another facility, he says. Discontinuing life support against the family’s wishes could subject the facility to claims for medical negligence, plus punitive damages for willful and wanton misconduct, he says.

"It is very clear that we cannot, on our own, discontinue life support in the face of a clear refusal by the appropriate family member," Green wrote to Johnson. "We would most certainly be faced with a lawsuit for wrongful death with a claim for punitive damages attached."