It's not just 'wrongful death.' Some doctors are sued for 'wrongful life'

Hospitals and health care providers fear lawsuits when a patient under their care dies, but a new wave of cases alleges something different: "wrongful life," Paula Span reports for the New York Times.

Following a series of high-profile cases involving disputes over a patient's end-of-life care, "Americans have been continually urged to put their end-of-life wishes in writing," Span writes. Frequently, such documents take the form of advance directives or Physician Orders for Life-Sustaining Treatment, which become part of a patient's chart. The forms are designed to give providers guidance such as when or whether a patient should be put on a ventilator or whether a provider should start CPR if the patient enters cardiac arrest.

And while Span notes that patients "often bear at least part of the blame" when such documents are not honored—perhaps because their instructions were vague, or they left documents left at home—a new slate of cases involves patients and families who said they did everything right and were still subjected to undesired, life-prolonging procedures. In these cases, Span writes, health care providers either mistakenly did not follow such orders or felt that extenuating circumstances, such as conflicting messages from patients, rendered the orders invalid.

Thaddeus Pope, who directs the Health Law Institute at Mitchell Hamline School of Law, said in some cases advance directives are missed or ignored because of a medical culture that errs "on the side of aggressive." For instance, he explained that while letting a patient die is an irreversible decision, it's possible to remove ventilators even after resuscitatation.

A case study in a 'right to death'

But this approach can lead to mistakes or disagreements with families who feel there is a "right to death" that providers are not respecting, Span reports.

For instance, in August 2013, an 83-year-old woman experienced cardiac arrest during her hospitalization. The woman, Beatrice Weisman, had already been in very poor health for some time, and earlier that month, her husband—whom Beatrice had authorized to make medical decisions on her behalf—issued a directive that if her heart or lungs failed she should be allowed to die.

But when hospital staff discovered that Weisman was experiencing cardiac arrest, they "began to perform CPR, which caused broken ribs and collapsed lungs," administered epinephrine, and used electric shocks to revive her. Their efforts were successful, but Christian Weisman, the couple's eldest child, said his father was "distraught" by what happened. His parents had "done everything the way they were supposed to—the wills [and] the advance directives," Weisman said.

Why advance directives get ignored

In the following year, Beatrice Weisman underwent intensive physical therapy and received constant home care, "all paid for out of pocket," Span writes. She eventually gained the ability to do some activities, such as go to church, but Christian says dementia frequently makes her confused and afraid.  "I'm happy to see my mother each day, but I'm also seeing her suffer each day," he said. "She asks why she's still here."

Christian filed a lawsuit seeking to recoup hospital charges, as well as the "roughly $180,000 annual cost of his mother's care from her resuscitation to her eventual death," and to mandate that the hospital improve its policies and training for DNRs, Span writes. And while his lawyer, Robert Schulte, said it's clear the providers who resuscitated Christian's mother were not "evil," he said they hadn't "bother[ed] to look" at her chart.

A changing legal landscape

According to Pope, who recently published a study on the issue in the Journal of Clinical Ethics, courts in the past did not take these so-called "right to death" cases seriously—but that is changing. "Families were showing up at plaintiffs' attorneys offices in the past and getting turned away. Now, plaintiffs' attorneys are taking these cases," he said. "Courts increasingly accept that unwanted life is also a harm" —even in cases where an advance directive may be vague or unavailable.  

In a separate case, for example, the Supreme Court of Georgia last year denied immunity to a hospital in a case involving a 91-year old patient who in 2012 was placed on a ventilator against the verbal instructions of her granddaughter and the patient's advance directive. The hospital had argued that the care it provided the patient was appropriate, contending that the granddaughter was hesitant about whether the patient should continue to receive life support.

But the state's high court rejected the argument, ruling that "it is the will of the patient or her designated agent, and not the will of the health care provider, that controls." And while the ruling was not on the merits of the case, Span writes that "court decisions like this one may influence later judgments, even in other states."

But despite these recent rulings, Pope said it remains unclear as to how the trend will play out.  For instance, he pointed out that while CMS is taking steps such as penalizing nursing homes on Nursing Home Compare if they do not follow advance directives, no plaintiff in these sorts of cases has yet to secure damages in court. "Nobody's gotten a check yet," he said (Span, New York Times, 4/10). 

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