February 22, 2021

'Wrongful life' lawsuits are becoming more common—and more successful

Daily Briefing

    Often, malpractice lawsuits include claims that a health care provider's actions led to a patient's death. But in recent years, "wrongful life" lawsuits—in which plaintiffs allege a health care provider tried to keep a patient alive against the patient's documented wishes—have become more common, Paula Span reports for the New York Times.

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    Why some providers get sued for 'wrongful life'

    According to a 2017 analysis of 150 studies, just under half of people over the age of 65 have an advanced directive that details their end-of-life wishes, and Span reports that there's evidence suggesting the share of people with advance directives has grown amid America's coronavirus epidemic.

    But in some instances, health care providers neglect to follow those directives, Span reports.

    Sometimes when patients are kept alive against their wishes, the patients themselves bear the blame, Span reports. Perhaps an advance directive goes missing or is outdated, or it contains vague language such as "no heroic measures" that makes it "hard for doctors to comply with," according to Thaddeus Pope, a professor at the Mitchell Hamline School of Law.

    In other cases, however, health care providers or organizations "overlook the documents in patients' charts or ignore conversations with health care proxies," or "[d]octors who doubt that a patient actually prefers to die may override the instructions," Span reports.

    The occurrences have led some patients to file so-called "wrongful life" suits against their providers, according to Span.

    "In the past, people have said, 'How have we harmed you if we kept you alive?'" Pope told Span. "Now, courts have said this is a compensable injury."

    Wrongful life lawsuits are becoming more common

    Four years ago, no one had ever received compensation for a wrongful life suit, according to Pope. But since that time, a number of people have won such suits against providers.

    The lawsuit believed to have gotten the first verdict in favor of a patient in a wrongful life case occurred in Montana, Span reports. In the suit, the estate of Rodney Knoepfle alleged that doctors at St. Peter's Health disregarded Knoepfle's do-not-resuscitate order and a portable orders for life-sustaining treatment form that were included in his medical records.

    The lawsuit noted that doctors twice resuscitated Knoepfle, who had dealt with several illnesses his entire life, despite the orders in his medical record stating that he did not wish to be resuscitated. Following the ordeal, Knoepfle lived two more years with the help of an oxygen tank.

    "The last few months, he was almost incoherent with pain, living in a hospital bed, getting morphine crushed into his pudding," Ben Snipes, one of Knoepfle's lawyers, said. "He'd suffered more pain than anyone should in a lifetime and was comfortable with going, if it was his time to go," Snipes added.

    In a separate lawsuit filed in Georgia in 2017, a court ordered Doctors Hospital of Augusta and a surgeon at the hospital to pay $1 million in damages to Jacqueline Alicea, after the hospital had placed her 91-year-old grandmother on a ventilator, which went against both Alicea's instructions as her grandmother's health proxy and her grandmother's advance directive.

    Cases like Knoepfle's and Alicea's have inspired other families to seek wrongful life suits. Now, a number of such suites are pending in Georgia, Maryland, and New Jersey, Span reports, as well as two lawsuits filed by lawyer Gerald Grunsfeld on behalf of Elaine Greenberg in New York.

    Gerald Greenberg, Elaine's husband, drew up an advance directive in 2011 after he was diagnosed with early-onset Alzheimer's disease. The directive stated that if Gerald became terminally ill, permanently unconscious, or seriously or irreversibly brain damaged, he did not want providers to use any life-sustaining measures.

    Gerald died in 2016. However, Elaine alleges that before Gerald passed away, Montefiore New Rochelle Hospital provided him with antibiotics and other unwanted treatments before he passed that led to him surviving for about a month in an unresponsive state.

    "They made the end of his life horrible and painful and humiliating," Elaine said. "What's the sense of having a living will if it's not honored?"

    "Their attitude is, 'Nobody was hurt,'" Grusnfeld added. "But there was physical hurt, emotional hurt, a lot of hurt" (Span, New York Times, 1/22).

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