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