Malpractice Lawsuits Allege Wrongful Prolongation of Life
By Stacey Kusterbeck
A patient arrives at the ED at the end of life, with DNR and DNI status clearly documented, with family members providing all the necessary paperwork. Yet when the patient goes into cardiac arrest, clinicians resuscitate and intubate anyway. Can the patient or family successfully sue for damages?
“Courts previously ruled that there was no cause of action for what were called ‘wrongful living’ cases,” explains Harry D. Revell, JD, a partner at Nicholson Revell in Augusta, GA.
The legal argument was clinicians inflicted no harm by saving the person’s life. There is growing recognition of the harm that can be inflicted if clinicians disregard a person’s DNR status.
“People who are wrongfully resuscitated can live for months or years, with no quality of life,” Revell says.
The family also is harmed because they must request withdrawal of life-sustaining interventions the patient never wanted. Disregarding a DNR order also can cause financial devastation.
“Part of the damages that we seek in these cases are medical expenses that could otherwise have been avoided had the patient’s express wishes been honored,” Revell reports.
Revell argues cases in which clinicians disregarded DNR orders are “wrongful prolongation of life.” The cases center on the fact providers are taking decision-making power out of the patients’ hands.
“We are seeing more and more courts be open to these cases,” Revell says.1,2
Revell represented a patient’s family in a 2015 case involving a woman placed on a ventilator, disregarding her healthcare proxy instructions and advance directive.3 The 91-year-old woman presented to the ED with shortness of breath and sepsis and was admitted to the hospital. The DNR status was in the chart. It was on the patient’s bracelet. The patient specifically requested not to be intubated. Yet when the patient went into respiratory distress, the patient was intubated and hooked up to a ventilator.
“Even though our client had made every effort to notify everybody about her advance directive, it wasn’t in the chart like it should have been. The inpatient providers actually called the ED to come up and intubate her,” Revell says.
The parties settled for $1 million. The patient’s granddaughter insisted the amount be made public to call attention to what happened and, hopefully, prevent future incidents. “She ... wanted to use her grandmother’s experience as a warning to healthcare providers: If you don’t pay attention to people’s advance directives, you do have civil liability,” Revell says.
In 2019, the first jury verdict for the plaintiff in a wrongful prolongation of life case awarded $209,000 in damages for medical costs and $200,000 for mental and physical pain and suffering.4
Revell has handled several other malpractice cases with similar fact patterns. In one case, the patient awakened during resuscitation and yelled at clinicians to stop, but the providers continued.
“The one overriding problem is charting and communication among the caregivers,” Revell says.
Lack of a clear policy on how to handle advance directives was not the problem; EDs had those in every case Revell has handled. Usually, the problem was the policy was not followed. According to Revell, emergency providers need a change in mindset to become accustomed to asking questions about code status.
“It’s not a patient they’ve been following for days or weeks. They are seeing the patient one time, and either they admit or discharge,” Revell says.
Unlike inpatient areas, ED providers might not be informed of the code status. “If the patient is being transferred from a nursing facility to the hospital, or it’s a reasonable chance that the patient has an advance directive, you should be asking about the status of the patient,” Revell says.
This should happen at the time of presentation to the ED, since it’s not ideal to make those inquiries once the patient has gone into cardiac arrest.
1. Span P. Filing suit for “wrongful life.” The New York Times. Jan. 22, 2021. https://nyti.ms/3BojAyq
2. Weisman v. Maryland General Hospital, Inc., No. 24-C-16-004199 (MD Circuit Court, July 25, 2016).
3. Doctors Hospital of Augusta, LLC, v. Alicea. 332 Ga. App. 529 (Georgia Court of Appeals, 2015).
4. O’Donnell v. Harrison, No. CDV 2017-850 (Montana District Court, Lewis & Clark County, May 23, 2019).
The top problems in these cases are charting and communication among caregivers.
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