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Liability for failing to follow advance directives

By Renee H. Martin, JD, R.N.

Pennsylvania physicians who fail to adhere to their patients’ advance directives may find themselves sued in court. In a ground breaking action filed in the U.S. District Court for the Eastern District of Pennsylvania, the legal guardian of a once prominent Philadelphia area physician, Marshall Klavan, M.D., has filed suit against his treating physicians and hospital alleging that they ignored his living will and used extraordinary measures to sustain his life.

In Klavan v. Chester Crozier Medical Center, et. al., six physicians, the Medical Center, and the Medical Center’s President, have been sued allegedly for ignoring Dr. Klavan’s known and explicit advance medical directives not to perform cardio-pulmonary resuscitation, not to use a ventilator or intravenous devices. Dr. Klavan’s guardian asserts that because the defendants’ disregarded these directives, Dr. Klavan survives in a nursing home in a vegetative state. The suit alleges that the rendering of this extraordinary treatment violated Dr. Klavan’s federal and state constitutional rights to privacy, self-determination and due process. Further, the suit includes claims of negligence, battery and lack of informed consent.

Damages sought include the cost of continuing Dr. Klavan’s care, which purportedly is in the amount of $80,000 to $100,000 annually. Dr. Klavan, who is now 67, has a life expectancy of 18 years, so the total cost for his life care, according to the suit, could exceed 2 million dollars.

Advance Directives Defined

Patients may use a variety of documents to ensure that their desires concerning end-of-life treatment will be honored by those called upon to make decisions for them. These documents take many forms, including living wills and durable health care powers of attorney, but all are generally known as advance directives. These directives allow for patient self-determination by enabling an individual, while competent, to give instructions or to appoint a proxy to decide what medical care, if any, is desired if the individual later becomes incompetent.

The living will is an adaptation of the traditional last will and testament. Instead of directing the disposition of an estate, however, a competent individual directs the medical treatment she will receive if she develops an incurable or irreversible condition that will inevitably cause death and she is no longer able to make decisions about her own medical care. A durable health care power of attorney is an adaptation of the traditional power of attorney. Instead of vesting a surrogate with authority to make decisions regarding her property, however, a competent individual instructs and empowers a surrogate to make decisions regarding her medical care in the event that she becomes incompetent, regardless of whether she is or is not terminally ill.

On the federal level, The Patient Self-Determination Act, which became effective in December 1991, requires that all hospitals, nursing facilities, home health agencies, hospice programs and certain health maintenance organizations participating in Medicare and Medicaid programs ask patients upon admission whether they have executed an advance directive, and to document the existence of an advance directive in the medical record. All states must comply with this federal legislation; 47 states and the District of Columbia have also enacted laws that permit the use of advance directives.

In Pennsylvania, the Advance Directive for Health Care Act governs the use of advance directives. The Act provides that individuals over age 18, or emancipated minors, may utilize advance directives. The Act stipulates that advance directives become effective only if a once competent individual subsequently becomes incompetent and is diagnosed as being permanently unconscious or in a terminal condition by the attending physician. The attending physician must certify this condition in writing and a second physician must confirm this diagnosis. Only then can the attending physician or health care provider act on the patient’s advance directive. Importantly, the health care provider must act in accordance with the advance directive or, pursuant to a “conscience clause”, transfer the patient to another health care provider who will institute the advance directive.

Why Advance Directives Are Not Followed

A competent patient’s right to refuse life-sustaining medical treatment is fairly well established by both common law and legislative enactments. While Klavan may present a novel claim in Pennsylvania, patients in other jurisdictions have previously filed suit when their advance directives are ignored. These suits, plus many published research studies on this topic, demonstrate that doctors and health care providers often ignore the advance directives of their patients.

Various reasons have been postulated as to why advance directives are ignored, the most frequently cited os which is the fear of suit when a patient’s directives are opposed or disagreed with by family members. In these situations, fearing reprisals from family members, health care providers do not remove life-sustaining treatment unless mandated by a court order. Health care providers apparently adhere to the erroneous belief that they will be subject to a negligence or wrongful death action. This view prevails despite provisions in advance directive legislation, including Pennsylvania’s, that provide immunity to medical professionals who participate in the withdrawal of life sustaining treatment pursuant to an advanced directive.

If health care providers face any real danger, it is that continuation of unwanted treatment may itself result in liability. The floodgates of litigation have not yet been opened against health care providers who fail to adhere to advance directives, however, as KLAVAN and other cases demonstrate, civil liability for failure to respect end-of-life decisions may grow.

Enforcing The Right To Refuse Treatment

Klavan demonstrates that lawsuits to enforce the right to refuse medical treatment can be brought under constitutional theories of privacy and self-determination, or as actions for medical malpractice, informed consent and/or battery. Battery occurs when a health care provider touches a patient in an unwanted manner or provides care absent a patient’s consent. The health care provider is then liable for the harm caused by the unconsented touching. Patients, or their families, can bring suit against physicians whom either knowingly or negligently provide treatment despite the presence of advance directives.

For example, in Estate of Leach v. Shapiro (1984), the husband of a comatose patient, who acted as his wife’s surrogate, brought an action in Ohio because his wife had been placed on life support contrary to her expressed wishes and without his informed consent. Mr. Leach sought damages for the time his wife spent on life support. The trial court determined that Mr. Leach had failed to state a recognized cause of action under Ohio law. The appellate court reversed the trial court and determined that “[t]he merits of plaintiffs’ claims for relief depend upon the facts that are developed . . . in [the] case.” It held that a cause of action would exist for wrongfully placing and maintaining Mrs. Leach on the ventilator if the facts showed that it was done absent Mr. Leach’s consent. The wrongfulness would be determined by resolving the factual questions dealing with informed consent, the nature of treatment rendered and the patient’s condition during the time in question.

Notably, the court did not conclude that this patient had a cause of action for “wrongful life.” Instead, the court found that if factually supported, Mr. Leach could receive compensation for both medical expenses and mental and emotional suffering stemming from unnecessary and interfering treatment.

In another Ohio case, a similar cause of action was recognized in Anderson v. St. Francis-St. George Hospital, Inc. (1996). In that action, the plaintiff, Edward Winter, was admitted to the hospital complaining of chest pain and fainting. He informed his personal physician that he did not wish to be resuscitated if that became necessary to keep him alive. The physician entered a “no code blue” order on Mr. Winter’s chart. Several days later, Mr. Winter suffered a ventricular arrhythmia and was successfully defibrillated by a nurse. Five days later, Mr. Winter suffered a stroke paralyzing him on his right side. He eventually died in a nursing home 2 years later, but before dying, Mr. Winter sued the hospital for damages resulting from its failure to obey the “no code blue” order. After numerous appeals, the Supreme Court of Ohio eventually determined that Mr. Winter could not maintain a cause of action for wrongful life and that any damages had to be based strictly on theories of negligence or battery. In this particular instance, the Supreme Court noted that there was no evidence linking Mr. Winter’s stroke with the defibrillation performed by the staff nurse. Thus, the Supreme Court concluded that the battery was physically harmless and that Mr. Winter suffered no compensable damages.

While the court in Anderson determined that insufficient evidence existed to support a cause of action in battery, it did not preclude recovery as a matter of law. Anderson demonstrates that in the presence of sufficient evidence, health care providers can indeed be held liable for battery. Similarly, in a 1995 North Carolina action, a nursing home brought suit against a resident’s wife to collect for services rendered during the last four months of the resident’s life. First Health Care Corporation v. Rettinger (1995). Mrs. Rettinger denied liability based upon the fact that the nursing home failed to follow her husband’s living will, and had it been followed, her husband would have died earlier. In essence, the wife argued that the four months of expenses were unjustified.

Apparently, Mr. Rettinger had executed a living will which stated that he did not wish his life to be prolonged by extraordinary means in the event his condition was determined to be incurable and terminal. Mr. Rettinger was bedridden, unable to communicate, had little mental functioning and suffered from dementia. While in the hospital, a feeding tube was inserted. When Mr. Rettinger was returned to the nursing home, his wife requested that the feeding tube be removed, which the nursing home refused to do. Thereafter, Mrs. Rettinger sought assistance from the court which eventually ordered that the tube be removed. Mr. Rettinger died subsequently.

In arguing against recovery of the expenses incurred by the nursing home, Mrs. Rettinger said that if the nasogastric tube had been removed when she first requested it, her husband would have died and no other medical services would have been required. However, the nursing home maintained that the living will was invalid because it did not comply with certain requirements of the living will statute.

The trial court held that it was a question for jury determination whether the requirements of the living will statute were adhered to. If the jury determined that the statutory requirements were met, then the feeding tube should have been removed when Mrs. Rettinger requested, and she would not be liable for the costs incurred with additional services. Again, the court recognized a possible cause of action if the jury determined that a factual basis existed.

These cases illustrate several causes of action for which patients may recover monetary damages:

• The wrongful placement and maintenance of a patient on a life support system contrary to the express wishes of the patient or family.

• An action in battery if the patient’s refusal of treatment is ignored.

• An action for pain, suffering and mental anguish for the patient and the family if treatments are administered without consent and if said treatments caused discomfort beyond that which the patient would have otherwise suffered.

It is unlikely that the courts will be inundated with lawsuits filed by patients or their families for the failure of health care providers to adhere to advance directives. It is clear, however, that in Pennsylvania and elsewhere, physicians and health care institutions that fail to adhere to their patients’ advance directives can be sued under various theories, including negligence and battery. Given the competent patient’s right to refuse treatment, physicians may well be advised to go to court themselves if they disagree with a patient’s advance directive to withhold or to cease treatment.

Renee H. Martin, JD, R.N., is a health care law associate at Reed Smith Shaw & McClay, LLP, in Philadelphia.

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