Refusing unwanted medical treatment–Part 5: Physician liability, continued

This posting, Part 5 of this series, completes my review of Professor Thaddeus 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 available against clinicians who ignore those patient choices, in addition to possible criminal liability for clinicians in some jurisdictions.

Professor Pope discusses a partial remedy for patients whose doctors will not follow a patient’s end-of-life instructions, namely, administrative penalties, similar to what Texas has in its AD law at Health & Safety Code, 166.045 (b):

” A physician, or a health professional acting under the direction of a physician, is subject to review and disciplinary action by the appropriate licensing board for failing to effectuate a qualified patient’s directive in violation of this subchapter or other laws of this state.”

Under this statute, if a physician disagrees with a decision, for either medical reasons or for personal ethical views, he or she may allow time for the patient to be transferred to another physician who does not object to the patient’s AD, or to another health care facility, if the facility objects to the medical care decision.  Such a response might occur when the patient is in a Catholic health care facility that will not permit voluntarily stopping eating and drinking (VSED), for example.

In the informed consent cause of action, the patient or surrogate might argue “that she would not have consented [to a medical procedure] had the clinician disclosed relevant information that the clinician had a legal duty to disclose.”  The failure to provide informed consent may be intentional, e.g., to obtain consent for a procedure the clinician favors, or more likely, inadvertent.

Professor Pope explains that to establish a negligence claim against a clinician, the patient must show

(1) that the clinician had a duty to care for the patient in accord with her expressed preferences; (2) that the clinician breached that duty, deviating from the relevant standard of care; (3) that the patient suffered damages; and (4) that those damages were caused by the breach.  (Citation omitted.) 

 Of course, when the clinician is unable to consult with the patient because of either temporary or permanent lack of mental capacity, the clinician must consult with the patient’s surrogate, and the negligence rules will apply.

Intentional infliction of emotional distress is involved in many cases, both in and out of the medical care milieu.  To establish this tort, a patient must show

(1) the defendant [acted] intentionally or recklessly; (2) his or her conduct must be extreme and outrageous; and (3) the conduct must be the cause-in-fact (4) of plaintiff’s severe emotional distress. Conduct is deemed ‘extreme and outrageous’ if it is ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ (Citations omitted.)

Successful cases in this area have involved the blood transfusion of a Jehovah’s Witness, whose religious beliefs preclude blood transfusions; violation of direct instructions not to be placed on life support even within the context of open heart surgery; and intubation of a patient in direct violation of a POLST (Physician Orders for Life-Sustaining Treatment).

Negligent infliction of emotional distress is somewhat easier to show than intentional infliction of emotional distress by establishing “(1) that the defendant engaged in conduct that she should have realized involved an unreasonable risk of causing emotional distress; and (2) that the conduct caused emotional distress to the plaintiff.”  (Citation omitted.)  Even a family member present when the treatment occurs may be able to establish this cause of action.

Breach of contract cases in this area are rare, absent a promise by a clinician to achieve a specific result, like “I will restore your hand to complete use.”  Such cases have arisen in surgeries where an anesthesiologist gives a patient anesthesia in direct contradiction to what the patient approved before surgery; and when a preliminary diagnostic surgical procedure was skipped and, consequently, an unneeded procedure was performed.  In another case, a 92 year old nursing home resident’s advance directive that specifically stated she was not to be resuscitated “if she collapsed” was deemed by a court to have been incorporated into the resident’s nursing home contract.  This would be a good practice for all nursing home residents to insist on before signing a contract with a nursing facility.

About state health care decisions acts, Professor Pope explains,

Every state has a health care decisions act that protects patients’ current and prospective autonomy by providing for advance directives, healthcare agents, and default surrogates. Clinicians must ordinarily comply with decisions and instructions made through these mechanisms. Intentionally violating this obligation subjects the provider [in California] to $2,500 or actual damages, whichever is greater, plus reasonable attorney’s fees. Several courts have specifically noted the availability of a statutory cause of action for unwanted life-sustaining treatment.  (Citations omitted.)

Negligence can also be inferred from a state’s health care decisions act if it is interpreted “as fixing a standard of care from which it is negligence to deviate.”  This may be seen as negligence per se because it violates a law whose purpose is to protect the public.  For instance, my Texas AD provides that if I have

an irreversible condition so that I cannot care for myself or make decisions for myself and am expected to die without life-sustaining treatment provided in accordance with prevailing standards of medical care: I request that all treatments other than those needed to keep me comfortable be discontinued or withheld and my physician allow me to die as gently as possible.

If this decision is ignored by my clinician, my surrogate or family may be able to recover damages for me under the Texas health care decisions act.  POLSTs may be able to be used in the same fashion.  

If you are provided unwanted life-sustaining treatment in one of the 1100 hospitals operated by a government entity (municipal, state, federal), you may have recourse for unwanted LSMT under a federal statute that prohibits “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws,” namely, Section 1983 of the United States Code, Chapter 42, that allows civil actions for deprivation of rights– the codification of the Civil Rights Act of 1871.

In some cases, the False Claims Act may provide a partial remedy:

When health care providers administer unwanted life-sustaining treatment and then bill for it, they are likely in violation of the False Claims Act for at least three separate reasons.”  (1) Patients may refuse treatment under federal regulations; (2) Medicare requires that reimbursed treatments be ‘medically necessary’; [and (3)] Medicare does not reimburse for ‘worthless services.’ (Citations omitted.) 

There are also “three other types of financial penalties: (1) attorney’s fees; (2) punitive damages; and nonpayment for rendered medical services.”  (Citations omitted.)  Other ancillary penalties are probably not relevant to the average person because they are primarily regulatory within the Medicare and Medicaid systems, and within state rules governing health care facilities, and have been discussed earlier in this series.

Some states provide criminal sanctions for providing unwanted medical treatment or violating an AD, as in this example from Montana:

. . . the Montana Supreme Court recently observed that that state’s ‘legislature criminalized the failure to follow a patient’s end-of-life instructions.’ A Montana physician ‘who willfully fails to record the determination of terminal condition or the terms of a declaration’ is punishable by a maximum $500 fine, a maximum one year in jail, or both.

Professor Pope concludes with a summary of what his analysis of the law shows:

The right to refuse life-sustaining treatment has been established for decades. But as with many principles in bioethics, there remains a wide chasm between legal and ethical principles, on the one hand, and the reality of clinical practice, on the other hand. Significant numbers of patients receive treatment inconsistent with their wishes and instructions. And this materially contributes to the nearly $700 billion wasted in U.S. health care annually. . . . Clinicians’ behavior is guided: (1)by what they think the law is; (2) by what they think the chances of enforcement are; and (3) by what they think the sanctions are. Less influential is: (a) what the law actually is; (b) what the chances of enforcement actually are; and (c) what the sanctions actually are. In contrast to other commentators, I have aimed to establish that the prospect for enforcement and consequences is not nearly as dismal as often depicted. Sanctions are more severe and more frequent than is commonly thought. This is an important starting point for changing clinician perceptions, and, consequently, clinician behavior. (Citations omitted.)

The bottom line for patients and surrogates is to understand a patient’s rights, educate clinicians about those rights, and be willing to pursue legal and administrative remedies when unwanted LSMT is provided.

Next week, I will conclude this series with a postscript about ADs.