Refusing unwanted medical treatment–Part 4: Physician liability

Previously, I have reviewed Professor Thaddeus Pope’s research into life-sustaining medical treatment (LSMT) and end-of-life medical care, presenting his analysis of leading causes of unwanted LSMT, the development of Physician Orders for Life-Sustaining Medical Treatment (POLST), and the use of and failure to follow advance directives (ADs).  In Part 4, I will continue my review of Professor Pope’s research into these issues, focusing on why clinicians perceive that not following a patient’s preferences about end-of-life care carries little risk for them and looking at more recent successful causes of action against clinicians.

Perhaps the leading cause of clinicians’ failure to follow a person’s AD is summed up in this statement by Professor Pope–

The thinking among clinicians has been that if ‘you 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 patients from dying.’  Clinicians find it ‘counterintuitive’ to be ‘held accountable for preserving the life of a patient.’

Even attorneys for hospitals, clinics, and physicians are prone to such thinking.  They believe that there is no effective remedy for it, a view of both many legal experts and the American Bar Association.  Nevertheless, to protect themselves, physicians sometimes choose one of three actions:

1.  They may seek permission to give unwanted medical treatment by having a guardian appointed in the face of family or surrogate opposition to the proposed treatment.  Then, they seek the guardian’s permission for the unwanted medical treatment.

2.  They may ask a judge to grant permission for the unwanted medical treatment.

3.,  In some states, they may be able to select a surrogate of their own choosing to get permission for the unwanted medical treatment.

Early court decisions about unwanted LSMT

In the 1990s, several prominent cases claimed damages for unwanted medical treatment.  When those case were decided against the patient or the patient’s family, the idea developed among physicians that they needn’t be concerned about lawsuits for providing unwanted medical treatment.

Professor Pope identifies five well-known obstacles to a remedy against a physician who provides unwanted medical treatment:

(1)  rejection of the ‘wrongful living’ cause of action;

(2)  rejection of private claims under the PSDA [the 1990 Patient Self-Determination Act];

(3)  the emergency exception to informed consent;

(4)  safe harbor legal immunity under healthcare decisions acts; and

(5)  conscience clauses

Professor Pope explains the rejection of “wrongful living” or wrongful “prolongation of life” causes of action, giving two basic reasons–

First, the courts concluded that continued life is necessarily a benefit, not harm.  One cannot, therefore, have a cause of action premised on the prolongation of life as the claimed ‘injury.’  Second, even if wrongful prolongation were a legally cognizable injury, it is incapable of quantification.  Life itself is not a compensable damage.

This reasoning by most courts faced with complaints of unwanted LSMT calls into question whether there can be a legal remedy for disregarding a refusal of medical treatment.

While the federal PSDA has a key objective to “ensure compliance with requirements of State law . . . respecting advance directives at facilities of the provider or organization,” the courts have rejected private claims under the PSDA.

The emergency exception is fairly straight-forward.  In an emergency the consent required for the medical treatment is “implied” by the emergency circumstances.  When the patient is unable to consent and there is no surrogate immediately available to decide what to do, the physician exercises legally-approve discretion by providing the medical treatment, which may be unwanted.

Perhaps the most important liability protection physicians have, according to Professor Pope’s analysis, is the state laws that “expressly grant them permission to deviate from patient instructions.”  These state laws deal with both traditional ADs and POLSTs (Physician Orders for Life-Sustaining Treatment), as well as a physician’s practice unrelated to ADs and POLSTs.  Such exemptions are known generally as “safe harbor immunity,” and may grant immunity for professional reasons or for “conscience-based reasons.”

Recent legal strategies for establishing liability for unwanted LSMT

Recent strategies in pursuing remedies for unwanted medical treatment have changed the legal liability landscape away from protecting physicians and toward holding them accountable for their decisions that countermand their patient’s decisions.  Professor Pope sees the current legal risk to physicians as substantial and provides a legal roadmap to holding physicians accountable:  he identifies the ten most “most significant causes of action used to address the administration of unwanted life-sustaining treatment.  They are tort-based behavior (generally a wrongful act by one person to another), including

(1) battery;

(2) informed consent [the lack of it];

(3) negligence;

(4) intentional infliction of emotional distress; and

(5) negligent infliction of emotional distress.

These causes of action may be based on

(6) breach of contract” or “on statutes such as:

(7) health care decisions acts;

(8) POLST statutes;

(9) Section 1983 [of The United States Code, Chapter 42, that allows for civil action for deprivation of rights; it is the codification of the Civil Rights Act of 1871]

(10) the False Claims Act.

Professor Pope points out an 11th liability for physicians–the costs to physicians to defend against “litigation even in the absence of liability.”

Perhaps his explanation of the most prominent cause of action–battery–will make its usefulness understandable:

The clinician is liable for battery, if: (1) he or she “acts intending to cause a harmful or offensive contact with the person” and (2) “a harmful [or offensive] contact with person [the body] of the other directly or indirectly results.”  Intent is shown if the clinician desired ‘to cause consequences of his act as well as the situation in which the [clinician] merely believes the consequences are substantially certain to result from it.’ ” (Citations omitted.)  The clinician may act “without any consent whatsoever,” or he may act “outside the scope of the patient’s consent.”  Battery can be found without regard to whether the motives are “good” or the results are “good.”

For several reasons, sizable judgments and settlements have been won against medical providers by using the battery cause of action: 

First, [plaintiff] does not need to establish a standard of care. Consequently, she does not need to retain any expert witnesses. Second, while the plaintiff likely will be able to prove damages she does not need to establish any. She can recover nominal and punitive damages without showing any compensatory damages. Third, she need not navigate tort reform procedural hurdles such as damages caps and pre-filing review. Fourth, the prospect of damages sends a very powerful signal, because a judgment or settlement may not be covered by insurance.  (Citations omitted.)

In contrast, the “informed consent” cause of action rests, not on a lack of consent (that could have been given), but on the failure of the physician to provide sufficient information to the patient or surrogate so that the consent is informed, a violation of the physician’s duty to the patient.  This lack of information is not always deliberate.  “More commonly, the clinician’s failure to obtain informed consent is inadvertent.”  However, what caused the lack of “informed consent” does not have to be proved.  All that is required is to show that “informed consent” was not present when the decision was made.

In Part 5 of this series, I will complete my review of Professor Pope’s analysis of why clinicians perceive that not following a patient’s preferences about end-of-life care carries little risk for them by explaining other causes of action, in addition to those situations where there may be criminal liability for physicians.