X-Message-Number: 6326 Date: Fri, 07 Jun 1996 09:36:13 -0700 From: David Brandt-Erichsen <> Subject: Lawsuits over ignored medical directives Here is an interesting front page feature article on a complex issue from the NEW YORK TIMES (JUNE 2) IGNORING 'RIGHT TO DIE' DIRECTIVES, MEDICAL COMMUNITY IS BEING SUED By TAMAR LEWIN For the last four years, Brenda Young has spent her days in torment, rhythmically screaming and thrashing in her mother's modest house in Flint, Mich. Since a seizure in 1992, Ms. Young, now 38, has needed total care. She must be fed, bathed, diapered and, at night, tied into bed so she does not push herself over the padded bed rails. Sometimes she manages a few intelligible words: "Water" or "Bury me." But mostly she screams, over and over. It is precisely the kind of existence that Ms. Young sought to avoid by signing an advance directive, on her doctor's advice, one month before the seizure that left her so disabled. Warned that the seizures she had been having were likely to worsen, Ms. Young gave her mother, Ramona Osgood, power of attorney to stop treatment if she became incapacitated. But to no avail: After her next seizure, Ms. Young was put on a ventilator, tube-fed and maintained through a two-month coma, despite her mother's insistence that she did not want life support. In a lawsuit against the hospital, Genesys St. Joseph, Ms. Young and her mother and daughter won a $16.5 million verdict this year. Sue Zitterman, the lawyer representing the hospital, declined to discuss the case, except to say that the judgment had yet to be formally entered, and that the hospital would seek to have it modified or overturned. At trial, the hospital argued that the family had authorized the treatment Ms. Young received, that her doctors believed that they were doing what was best for her and that they could not predict how disabled she would be. Although the Michigan case is apparently the first of its kind in which a jury awarded substantial damages, hospitals, lawyers and right-to-die advocates say there is a new wave of lawsuits seeking to hold hospitals, nursing homes and doctors liable for ignoring living wills and other advance directives. "The Michigan case is one of these jolts in the field that sets off waves of discussion and reminds us how vulnerable we are, because we are human beings whose training and background are in saving lives," said Richard Wade, a spokesman for the American Hospital Association. "So it's going to take us a while to learn to deal with these end-of-life issues." The legal theories in such cases vary, with some based on charging negligence and others on intentional infliction of emotional, physical and financial distress. But increasingly, lawyers are arguing that treatment given against a patient's will is a form of battery, an illegal attack on the patient's body. "This is a new area of law, and the legal theories are still developing," said Anna Moretti, a lawyer with Choice in Dying, an advocacy group that tracks the cases. "But most people are using a theory of medical battery. The idea is that patients have a right to refuse treatment, so if the patient has expressed a wish not to have a particular treatment or procedures, and the doctors and hospitals do it anyway, it's legally like an assault on the patient." Suits Seek to Sway Culture of Medicine -------------------------------------- Advance directives do not always resolve what to do in an emergency, doctors and hospital administrators say, both because patients and families often waver when confronted with imminent death and because it is often hard to predict whether an emergency intervention will improve the patient's quality of life or consign him to a long, painful process of high-tech dying. "No one acts out of malice but these are very complicated issues, and except in the most clear-cut cases, everyone following an advance directive has some doubts," said Mr. Wade, the association spokesman. "Even if you're sure this is what your relative wanted, you have some doubts, too. It's all a confluence of human judgments around a traumatic situation, and everything becomes different when it comes right down to it. No piece of paper tells you exactly what to do." But right-to-die advocates argue that hospitals still do not pay enough attention to patients' wishes. And, they say, the new lawsuits provide useful pressure to change a medical culture that too often insists on extending life, without regard to the patient's wishes or to the cost in pain and suffering. The pending lawsuits cover a wide variety of situations. Among them are the following: ¶ An Arkansas woman whose husband collapsed from end-stage heart disease, and was resuscitated, filed suit this year, saying she was forcibly ejected from his hospital room when she protested that, as her husband's legal proxy, she wanted to stop the resuscitation effort. The complaint charges battery of both husband and wife, and intentional infliction of emotional distress. ¶ A California man whose wife had a degenerative and fatal genetic disease had her admitted to the hospital in 1994, when she was having seizures and seemed to be dying, with the understanding that she was to receive only comfort measures. But two days later, the hospital, over his objections, inserted a feeding tube, strapped her to the bed and provided antibiotics to treat the pneumonia she was developing. She is still alive, and in need of full-time nursing care; her husband has sued the doctor and the hospital. ¶ Four days after an Indiana woman suffered a massive stroke that left her in a persistent vegetative state, the hospital where she was treated removed her feeding tube, after consultation with her family, including the son who held her power of attorney. She was then sent back to her nursing home, where she was to be allowed to die naturally, receiving only intravenous fluids. But less than two weeks later, the nursing home put a feeding tube into her stomach and restarted nutrition, keeping her alive five more months. The family is suing for fraud and negligence. ¶ An Ohio man, Edward Winter, told his doctors and his children that he would not want resuscitation, after watching the slow death of his wife, who suffered brain damage after being resuscitated through electric shock following a heart attack. But a few months later, when Mr. Winter, 82, had a heart attack himself, he was shocked back to life at a hospital. He then suffered a stroke that left him partly paralyzed, barely able to speak and mostly confined to bed in a nursing home. The lawsuit he filed in 1989, the year before he died, was initially dismissed on the ground that keeping someone alive against his will is not a legal wrong. But in an appeal argued to the Ohio Supreme Court in May, Mr. Winter's lawyer, William Knapp, argued that the case was based on negligence and battery, not a claim of "wrongful life." Medical Experts Defend Decisions --------------------------------- In most of the cases, the doctors and hospitals defend their actions, asserting that saving a life is never against the law. Deborah Lydon, the lawyer representing the Ohio hospital, said: "We don't think it's appropriate to say you can recover damages for living, and we're concerned that an adverse decision would cause health practitioners to be terribly confused about which way to proceed if there was an emergency health-care decision. It's terribly difficult to know one way or another what the outcome is going to be, in many cases." And the decisions must often be made very quickly. "A good bit of the urgent care hospitals offer must start literally in minutes, so we've developed the mentality that if you don't intervene and the patient dies, maybe you will be liable," said Dr. Nancy Dickey, chairwoman of the board of the American Medical Association. "The thinking has been that if you do intervene and you shouldn't have, the worst that will happen is that the patient will live a little longer and that you'll never be held accountable if you keep the patient from dying. Of course, that's not true anymore." Dr. Dickey and others say doctors and hospitals are slowly changing their attitudes and talking more with patients about their desires on treatment. "This goes very deep in hospital culture, and it's going to take a lot to change it," said Daniel Callahan, an expert on end-of-life medical care who is president of the Hastings Foundation, which specializes in issues of biomedical ethics. "One way that may happen is through legal pressure and jury verdicts. If doctors get worried that they'll get sued if they don't do what the patient directed, it's bound to affect their behavior." Advance Directives Found Ineffective ------------------------------------ The lawsuits come at a time when patients' end-of-life decisions are getting new attention. Over the last two decades, every state has provided mechanisms for people to declare, in advance, what measures they want taken if they are incapacitated, or to name a proxy who will make such decisions, or both. Since 1990, the Federal Patient Self-Determination Act has required hospitals and nursing homes to tell patients, on admission, of their right to file an advance directive, and to refuse treatment. And just this year, two Federal appeals courts -- in New York and California -- have struck down laws prohibiting physician-assisted suicide. Despite all the legal momentum, advance directives have done little to change end-of-life medical care, according to a study financed by the Robert Wood Johnson Foundation and made public late last year. The study, which has generated criticism and debate in the medical community, found that fewer than half the doctors knew when patients wanted to avoid resuscitation, that half the patients who died in the hospitals were in moderate to severe pain at least half the time, and that more than a third of those who died spent at least 10 days in intensive care, comatose or on a ventilator. What stunned the medical community even more was another finding, that intensive efforts to improve matters, using nurses to talk to families and doctors and encourage planning, had no influence on how much the patients' wishes were followed or how much aggressive treatment they received before dying. 'It's a Living Hell,' One Mother Says -------------------------------------- Brenda Young's case, in Michigan, is a good example of how decisions are made on the spot, even when the patient has an advance directive. Ms. Young was in good health until 1977, when she suffered a brain hemorrhage, and her doctors found that she had abnormal vessels in her brain. She began having bad headaches and increasingly severe seizures. Her doctor warned her that at some point the seizures would be so severe that she would emerge profoundly disabled, if at all. It was that warning that sent Ms. Young to the lawyer, to make her mother her health proxy. On Feb. 3, 1992, when Ms. Osgood found her daughter in the midst of a seizure, she called the ambulance, and took her to Genesys St. Joseph, taking the power of attorney with her. Ms. Young was found to be in critical condition by the time she arrived at the hospital, and doctors repeatedly came out to seek her mother's permission for the procedures they wanted to begin. Clark Shanahan, the lawyer representing the family, described the back and forth: "The doctors would come out and say, 'Can we have your consent to put your daughter on a ventilator,' and she'd say, 'That ain't life support, is it? She doesn't want life support,' and they'd say, 'No, we're just trying to make her more comfortable,' so she'd agree." Ms. Shanahan continued: "Then it was dialysis, then dopamine, then blood transfusions. Ms. Osgood has a fifth-grade education, and she had no idea what she was consenting to. And no one really explained it." At trial, witnesses for the hospital testified that they had tried to explain their treatment decisions and that Ms. Osgood had seemed conflicted, but had agreed to the treatment. An outside hospital-ethics expert testified, however, that the records show the doctors never fully explained Ms. Young's situation to her mother and she never understood enough to give genuine consent. Either way, the results have been disastrous. Ms. Young's father, unable to stand it, abandoned his wife and home after more than 30 years of marriage, and her daughter, Chastity, married and moved out of state at the age of 17. Ms. Osgood has tried to place her daughter in a convalescent home, but none has been willing to cope with the screaming. And it may be years before Ms. Osgood gets enough money to pay for round-the-clock nursing as the verdict makes its way through the appeals process. "It's a living hell, really a living hell," Ms. Osgood said in a videotape of her daily life made two years ago for the lawsuit. "I get no rest, no sleep. The girl hollers constantly. She screams very, very loudly, for five or six hours at a time. I don't know how she does it, but she does it. It's got to me, physically and mentally." <David Brandt-Erichsen> Rate This Message: http://www.cryonet.org/cgi-bin/rate.cgi?msg=6326