SOUTHEAST TENNESSEE LEGAL SERVICES
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SOUTHEAST TENNESSEE LEGAL SERVICES
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Athens, Tennessee
This memorandum discusses who might be liable, and why, in the following situations:
Withholding or Withdrawal of Life Support
One can scour judicial decisions over the past three decades without finding any substantiation for one of the greatest fears of physicians and hospitals – that they will be found liable if they withhold or withdraw medical treatments. Every state has some form of statute protecting them. Even more important is the constitutional and common law protection that they enjoy. If a patient has a right to refuse treatment, no court can punish the hospital or doctor honoring that right.
That ought to be the end of the matter, but it is not. Physicians and hospitals fear that they will be sued and, even though they may win, the victory is not worth the cost to them, they say. Many routinely administer life-prolonging treatment if a family requests it, regardless of an advance directive directing only comfort care. Despite lawsuits to the contrary that are discussed below, many regularly say that they will never be sued if they do provide life support, only if they do not. One noteworthy case illustrates the fears of physicians and hospitals, though it did not involve them. It is a rarity, however, and probably the last of its kind. It involved the removal of artificial food and water, an especially sensitive subject, though both medicine and law now agree that there should be no differentiation between them and other forms of life support.
This is the case of Hugh Finn.[1] His wife easily prevailed in the blizzard of litigation that ensued from her decision to withdraw life-prolonging treatment from him.
With a large measure of medical, theological and legal testimony to support Ms. Finn’s decision, the trial court found for Mrs. Finn on all counts. It ordered her brother-in-law to pay one-half of the fees for the guardian ad litem and the expert witnesses, as well as her attorney’s fees and costs. While not unprecedented, these are unusual sanctions.
Then, the Governor of Virginia filed a suit seeking to prohibit withdrawal of artificial food and water from Mr. Finn. The Governor contended that it would cause him to die. He claimed also that the Virginia Health Care Decisions Act did not authorize the withholding of nutrition and hydration because that action constituted mercy killing. The trial judge disagreed on all points, and the Virginia Supreme Court affirmed.
Mr. Finn died following the withdrawal of the artificial food and water.
Then, the trial court ordered the Governor and Commonwealth to pay the attorney’s fees and costs of Mrs. Finn. The Supreme Court differed this time, finding that there was a reasonable and good faith basis, mistaken though it was, for the assertions in the Governor’s pleading.
Many states have statutes similar to Virginia’s authorizing the withdrawal of artificial food and water, saying further that the removal is not an act of euthanasia. Only a trickle of lawsuits now occurs. The results are always the same. Life support may be refused or discontinued at the direction of a patient or his or her legal representative. There is no liability for a physician or hospital in following directions to withhold or withdraw life support.
Provision of Unwanted Life-Prolonging Treatment
Edward Winter was 82 and a retired furniture refinisher from Cincinnati. He had a history of cardiac problems before he suffered an unusually rapid heartbeat on May 28, 1988. He told his doctor that he did not want certain life-prolonging treatments including resuscitation. He gave the same instructions to his three daughters. The physician entered those instructions on Mr. Winter's chart but not on the monitor by his bed. Three days later, when he began experiencing ventricular fibrillations that signal sudden death, a nurse applied electrodes to his chest and revived him.
He later suffered numerous injuries including a stroke. At the time of an interview with the New York Times in 1990,[2] his medical bills totaled about $100,000 and were still rising. His life savings were almost depleted. While he was still living, he sued, saying that resuscitation should not have occurred.
In a 4-3 decision in 1996 after extensive litigation, Ohios Supreme Court rejected the theory of wrongful living.[3] It did find that there could be liability for medical battery but concluded that there were was no proof that the resuscitation led to tissue burns, broken bones or other harm. Even if there had been a battery, it said, there was no physical harm. Damages would be nominal only. The justices in the majority commented that some legal wrongs could not be compensated or otherwise addressed by courts. This is a remarkable admission by a court, one that judges are reluctant to make except in the most impossible of circumstances.
So far, most judicial decisions concur with the Ohio Supreme Court.[4] Yet, one senses that courts will ultimately decide that, on one theory or another, it is wrong not to do what a patient commands or requests. It goes against the grain of a judge to say that there is no remedy. He or she could easily find significant harm to the survivors.
The results may depend upon whether statutes address the matter. To illustrate, Section 32-11-108 of the Tennessee Code Annotated provides that "[a]ny health care provider who fails to make good faith reasonable effort to comply with or to transfer the patient to the care of a physician who will comply] shall be civilly liable and subject to professional disciplinary action, including revocation or suspension of license." Twelve other states and the District of Columbia have a variety of civil and professional sanctions in such circumstances.[5] Four make it a misdemeanor, which is a criminal offense, not to honor an advance directive.
Finally, if intentional torts like infliction of emotional distress are alleged and punitive damages claimed, insurance companies might take the position that there is no coverage. This may be the most meaningful consequence of all because the absence of insurance is terrifying to most professionals.
Refusal to Provide Life-Sustaining Treatment
In a case testing the limits of a physician’s duty to provide treatment that he or she believes to be futile, physicians signed an order not to resuscitate a 72-year old comatose woman with multisystem failure.[6]
Catherine Gilgunn was a patient at Massachusetts General Hospital in 1989 and had suffered a seizure. The hospital had previously formed an ethics committee and named Dr. Edwin Cassem to head it. He was a psychiatrist and a Jesuit priest.
In his recommendation, Dr. Cassem wrote, is not even among her medical options at this point. The family's confusion, anguish, misinformation, denial, and distress do not justify mistreating the patient.'' The family disagreed. Joan Gilgunn, the daughter who spoke for the family, said her mother wanted “everything possible to save her life.” When her mother died, after the hospital weaned her from a ventilator, she sued Dr. Cassem and the hospital.
The jury took only two hours to find in favor of Dr. Cassem and the hospital. With this trial court decision, the law-making process has begun. The ethical imperative to heal has its limits that are now recognized in law, if only through a trial court decision. For now, as long as a physician or hospital has a coherent set of reasons for termination of treatment, and documents them, it should satisfy both ethical and legal standards.
Failure to Advise Patients about End-of-Life Issues
Realizing that there is no statute or judicial decision suggesting that liability can be imposed when no advice – or inadequate counsel - is given about end-of-life issues, it can be instructive to explore just how liability might occur.
Doctors have superior knowledge about medical conditions and their consequences. That is why the legal doctrine of informed consent requires them to share it with their patients so that the latter can decide what kinds of treatment they want. Another pertinent concept is the relationship that surrounds patients and their physicians. The law imposes special duties on other important human relationships of trust. The word “trustee” connotes them. When these relationships are abused, much heavier penalties are imposed on the transgressors.
Put the two concepts together and you have a formula for legal change. It begins when a patient or family member says: "The doctor should have told me that CPR had so little chance of success and so many bad consequences." It ends when an appellate judge says: "That really wasn’t fair, and I’m going to find the intellectual justification for a proper legal remedy." Failure to Disclose Financial Interest
Financial risk has shifted over time from insurance companies to employers, then to managed care organizations, and finally to health care providers.
Hospitals are now more likely to be charged with sacrificing patients' care for financial reasons. They usually have dollars at stake with a patient whose treatments are costly at the end of life. The same charge can be leveled at physician groups that contract on a capitated basis with HMOs. They too stand to receive financial benefit when death occurs sooner and less expensively.
Unlike HMOs, physicians and hospitals cannot claim that federal law preempts and prohibits litigation against them for denial of proper medical care. The Employee Retirement Income Security Act protects only "welfare plans " not doctors and hospitals.
Once again, legal theorists and practitioners may seek to characterize the allegations in both historical and novel ways. An intentional inflection of emotional distress looms as a plausible tort. Where the proof is not as clear, the claim may be made that there was a reckless disregard for the well-being of the patient or a negligent infliction of emotional distress. No doubt, there are other ways to fault callous treatment given to dying persons out of financial self-interest.
It seems plausible that hospitals and physicians will ultimately pay damages to families who can prove that they were not told about who would bear the cost of life-prolonging treatment, thus leading to the premature termination of the life of a loved just to save money. Failure to Obtain Proper Consent for an Organ Donation
The emotionally charged atmosphere surrounding death can cause a court to look beyond the usual evidentiary rules to permit a lawsuit that in other contexts would be summarily dismissed. To illustrate, it is almost axiomatic that oral testimony cannot contradict a written document. Yet, a North Carolina intermediate appeals court reinstated a suit despite a son’s signature on an autopsy request form giving consent for the donation of his father’s body.[7]
A physician had asked the deceased’s children if they would donate his organs. Specifically, she informed them that his eyes were suitable for donation. They said no.
The doctor asked the family if they wanted an autopsy performed. She assured the children that the autopsy did not require the removal of body parts. The son then signed a blank autopsy form.
In obtuse language, the autopsy form authorized the examining physician to remove organs or tissue for transplantation. Immediately following this sentence was a section for any limitations that might have been placed by the family on the autopsy. The physician did not record the children’s objections in the blank place.
A pathologist performed the autopsy. Following the medical center's standard procedure, she removed the eyes. In later testimony, she noted that there was no medical reason to remove the eyes in order to determine the cause of death. The only plausible purpose for the removal was organ donation.
The children sued for both compensatory and punitive damages for emotional distress and mental suffering. They claimed mutilation of their father’s dead body because the autopsy went beyond the scope authorized by them. The trial judge granted summary judgment against them, and the appellate court reversed, sending the case back to the lower court for a jury trial.
The hospital and physicians contended that the family authorized an unlimited autopsy by signing a blank form. Read what you sign or forfeit your rights, they said.
The appellate court emphatically disagreed. It found that the emotional state of the children two and a half hours after their father's unexpected death excused the son’s failure to read the autopsy release form. It said that he justifiably relied on the physician to ensure that the family's orally expressed wishes were followed. It also decided that there were factual disputes that only a jury could resolve.
Had the document been a finance contract, the result would probably have been different. A case like this illustrates why legal rules at the end of life are unique. Emotions can run so high that judges and juries will respond to them in instinctual ways. They may find insensitivity to be unfairness and minimal disclosure to be distortion.
Insufficient Advance Directives
The interweaving of constitutional, statutory and common law has created a maze. Very few clients, doctors, or even lawyers, comprehend the subtleties of the documents commonly in use.
Most advance directives are merely restatements of legislation and thus do not invoke the liberties and protections which constitutions and common law provide. Clients may begin to ask: does my document cover Alzheimer’s Disease and, if not, why not? Some doctors say that advance directives are not helpful because they do not relate to specific treatments. Only a few lawyers know this. The best these documents do is deal with one life-prolonging treatment, artificial food and water. They do not deal, for example, with CPR even in instances when the patient is a candidate for a DNR Order. Doctors already say: give us something more that we can apply in specific cases.
Then there is the problem of the unreadable document. Advance directives are among the most complex of legal creations when they follow statutory patterns. They reflect the compromises and inconsistencies which legislation produces. Clients may begin to ask: is it not a lawyer’s job to produce a document that my family can understand in one of life’s most perplexing situations?
The upshot of this discourse is that lawyers’ products -- documents in this case -- may ultimately become subject to the standards of consumer products generally. That is, they must be fit for the purposes for which they are intended to be used. Otherwise, legal malpractice will have been committed.
[1] Gilmore v. Finn, 527 S.E.2d 426 (Va. 2000). [2] Margolick, David. Patient's Lawsuit Says Saving Life Ruined It. New York Times, March 18, 1990. [3] Anderson v. St. Frances-St. George Hospital, 671 N.E.2d 225, 228 (Ohio 1996). [4] Bartling v. Glendale Adventist Medical Center, 229 Cal. Rptr. 360, 184 Cal. App. 3d. 961 (1986); Schneider v. Abelius, No. C95-04693, Superior Ct., Contra Costa County, Cal. 1997, http://www.partnershipforcaring.org/Resources/developments_set.html; Osgood v. Genesys Regional Medical Center, Genesee County, No. 94-26731-NH Mich. Cir. Ct., Genessee County, Mar. 1997, http://www.partnershipforcaring.org/Resources/developments_set.html; and HCA Inc. v. Miller, 36 S.W.3d 187 (2000). [5] Alaska Stat. §18.12.070. Colo. Rev. Stat. §15-18-113(5). D.C. Code Ann. §6-2427. ). Ill. Ann. Stat. ch. 35 §8(c) and (d). Ind. Code Ann. §16-36-4-21. Kan. Stat. Ann. §28,107(a). Me. Rev. Stat. Ann. tit. 18A-35-810. Mo. Ann. Stat. §459.045. N.J. Stat. Ann. §26:2H-78. N.M. §24-7A-10. R.I. Gen. Laws §§23-4-10-7(a), (b); 23-4-11-9(a), (b). Utah Code Ann. §75-2-1112. Wisc. Stat. Ann. §154.07(1)(a)(3); §155.50(1)(b). But see, statutes in other states that create immunities for hospitals and physicians. Del. Code Ann. Tit. 16, §2510(5). Iowa Code Ann. §144B.9.2. Miss. Code Ann. §41-41-173(2). Nev. Rev. Stat. §449.630. Ohio Rev. Code Ann. 1337.15(B)(1). Tex. Health & Safety Code §672.016(b). [6] Gilgunn v. Massachusetts General Hospital, Mass. App. Ct., 97-P-2150. See also, Stein, Charles. Ending a Life. The Boston Globe Magazine, November 29, 1998. [7] Massey v. Duke University, 503 S.E.2d 155 (N.C. App. 1998).
Copyright 2003 by Whitney Durand. Used with permission.
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