Case One
Rebecca Jane Taylor suffered a stroke that left her paralyzed on one side and wheelchair-bound. She executed a living will directing that doctors should not take "extraordinary means" to prolong her life if she had a terminal illness. She also executed a power of attorney in favor of her son, Steven, and a Do Not Resuscitate (DNR) form.
She later suffered a second stroke that left her comatose with no hope of recovery. Steven and her other two sons thereupon directed that artificial nutrition be discontinued and that the nursing home staff give her only comfort care until she died. But when the staff found that she was becoming dehydrated despite IV administration of a sugar/saline solution, and that she was showing some signs of responsiveness to pain, they decided to insert a nasogastric tube and begin feeding her a caloric supplement.
The nursing home staff tried to reach family members to get their permission but, initially failing to reach Steven, they spoke to another son and told him that unless his mother was given the tube feedings she would die a terrible "dry death." The son thereupon gave his permission to prevent Taylor from suffering. But before the tube could be inserted, son Steven made clear his objection. A doctor inserted the tube anyway, relying on the permission given by the other son. Steven then replaced the physician with one who promised that he would monitor Taylor's condition and discontinue the tube feedings and just give her water if her condition did not improve. Without informing the family, the new doctor then increased her caloric intake. When Steven found out, he removed his mother from the nursing home and took her to a hospital, where she died ten days later. Taylor's estate sued the nursing home for damages wrongfully prolonging Taylor's life. Last April, an appellate court in Indiana affirmed the dismissal of the suit. The court reasoned that what had really happened was that Taylor's sons had disagreed with what the nursing home staff proposed to do for their mother, and that the proper course would have been for the sons to go to the probate court and obtain an order compelling the nursing home to follow their wishes.
Case Two
Brenda Young had a history of brain seizures, and after she was warned that she could suffer a massive seizure that would leave her in a persistent vegetative state, she executed a durable power of attorney giving her mother authority to make treatment decisions if she became incompetent. Young then suffered a massive seizure. But despite her mother showing the power of attorney to the hospital staff and making repeated requests to withhold or withdraw life support, Young was maintained on a ventilator and given tube feedings, dialysis, blood transfusions, and medications. Her mother was told that these were not life support but "comfort care." Young eventually recovered enough to go home, where she remained in a partial vegetative state and spent most of her time "rhythmically screaming and thrashing."
When her mother sued the hospital, a Michigan jury awarded $16 million in damages, which a judge later reduced the award to $1.4 million, following which the case was settled for an undisclosed amount.
Case Three
Edward Winter was admitted to the hospital with chest pains. He told the doctors that he did not want to be resuscitated. When he suffered ventricular tachycardia during the night, a nurse defibrillated him, and when he regained consciousness, he thanked her. He then suffered a stroke and remained partially paralyzed until his death almost two years later.
Before his death, Winter commenced a suit against the hospital for reviving him against his wishes. The Supreme Court of Ohio ruled that there could be no compensation for prolongation of life and that the resuscitation did not cause Winter's stroke. The court, therefore, threw out the lawsuit.
Legal Perspective
These three cases illustrate the disagreement among the courts over whether patients, or their families, ought to be able to sue health care providers for failing to carry out treatment decisions that the patient be allowed to die. What is the right solution?
A good argument can be made that the courts in the first and third cases got it wrong. The court in the Taylor case essentially said that the only recourse in these situations is to seek a judicial order — an injunction — compelling the caregivers to carry out the wishes of the patient or the person authorized to make treatment decisions on the patient's behalf. In an excellent analysis of the case, Professor Phillip Peters points out that, in many instances, the need to seek a court order will only be apparent after damage to the patient has been done, such as by being resuscitated. Moreover, this approach places the burden of initiating legal action on patients and their families, "most of whom will be unsophisticated about legal matters, many of whom will lack resources to litigate, and all of whom will be struggling with a family medical crisis." It's also worth noting that at no time did the nursing home physicians or staff inform Taylor's family about the availability of the probate court procedure.
The Ohio Supreme Court also missed the boat in Winter's case. First, it confused a suit for wrongful prolongation of life with a suit for wrongful life. The latter is the type of lawsuit brought by a child for having been born as the result of a health care provider's negligence, such as a botched sterilization or abortion. Courts generally do not permit damages in these suits, even when the child is severely impaired and the parents had sought the sterilization or abortion to prevent just such a result. The courts argue that they cannot calculate the value of never having been born and subtract from it the value of being alive, even in an afflicted condition. But a wrongful-prolongation-of-life action doesn't require such a baffling, metaphysical exercise. The court merely has to determine the cost of the additional expenses incurred by the patient or family as the result of the patient being kept alive, plus assign a value to the patient's and perhaps the family's pain and suffering.
As for the Ohio court's claim that Winter's resuscitation did not cause his stroke, of course the resuscitation caused the stroke, in the sense that "but-for" the resuscitation Winter would not have suffered the stroke. What the court meant to say was that we may not want to permit the patient or family to recover for reasons of policy or expediency or from a sense that it would be unfair to the caregivers to make them liable in these situations. But this has nothing to do with causation.
But just because the courts in the Taylor and Winter cases got things wrong doesn't mean the jury in the Osgood case got it right. The judge in that case certainly didn't think so, which was why he reduced the award of damages from $16 million to $1.4 million. But $1.4 million still seems like an awful lot of money.
Are Caregivers Following Patient Wishes?
On the other hand, there seems to be general agreement in this country that patients have the right to refuse treatment, even if that means that they die, and pretty close to general agreement that patients have the right to refuse food and hydration, if that is the only way to permit them to die. The ethical and legal debate over the right-to-die has moved on to physician-assisted suicide (prescribing a lethal dose of pills) and active euthanasia (the ability of patients who cannot swallow pills to request a lethal injection or its equivalent).
In addition, there is a good deal of evidence that physicians and other health care professionals do not follow the wishes of patients and families. The SUPPORT study funded by the Robert Wood Johnson Foundation in the mid 1990's found that "fewer than half of the treating physicians even knew their patients did not want resuscitation; half of the patients who died in the hospital were in moderate to severe pain at least half the time; more than a third of those patients spent at the least the last 10 days of life in intensive care, comatose, or on a ventilator against their wishes; and many of these patients had spent their entire life savings" on their care. Against this background, a strong argument can be made that damage suits for prolonging patients' lives against their wishes are necessary in order to deter this insensitivity.
A middle ground approach is discussed by Professor Peters: permit suits for wrongful prolongation of life but only allow recovery of the additional expenses, such as the bill for the additional days of hospitalization, that the patient or family must pay as a result. This would exert some degree of deterrence but avoid the more difficult task of calculating damages for pain and suffering.
What do you think is the right solution?
