The financial cost of ignoring advance directives

The earlier five-part series (beginning here) looking at Thaddeus Pope’s analysis of the risks faced by clinicians who do not follow the advance directives of their patients has been augmented by a case that was recently settled for $1 million. The settlement was reported on March 28, 2019, in the North Coast Journal, Humboldt County, California.

But this is not a typical case of a clinician or health care facility merely ignoring a patient’s end-of-life decisions.  This case involves deliberate deceit and overreaching by a government agency tasked with protecting the elderly.  The appellate court explained the patient’s medical condition and related circumstances:

Mr. Magney was hospitalized in late February 2015 with multiple medical problems. Among other things, he had mitral valve endocarditis, a serious heart infection, which may cause nausea and reduce or eliminate appetite. Mr. Magney was unable to eat and severely malnourished, a condition consistent with the infection. He also had severe skin ulcerations on his backside. . . . About two weeks into Mr. Magney’s hospital stay, on or about March 6, Dr. Stephanie Phan took over responsibility for his care and treatment. In reviewing his chart, including the progress reports of the previous treating physicians and subspecialists, Dr. Phan particularly noted a cardiologist’s report that Mr. Magney had refused further workup of his heart condition. According to the cardiologist, Mr. Magney said he had refused surgery on his heart valve in 2012, deciding it was more than he could tolerate. He volunteered to the cardiologist that further interventions would be “silly,” explaining he was a born-again Christian and ready for death. In light of these facts, the cardiologist had recommended withdrawing treatment apart from palliative or comfort care. The treating physician immediately before Dr. Phan entered a note in the chart that he agreed.

Dick Magney knew what kind of death he wanted.  With the help of an attorney, he completed an advance health care directive as provided by the California Health Care Decisions Act.  In his directive, he named his spouse, Judith Magney, as his surrogate decision-maker.  The directive grants Mrs. Magney 

full power to authorize, refuse or withdraw any medical treatment or to make any health care decision which is recommended or approved by a medical doctor, including but not limited to authorization for emergency care, hospitalization, and/or any other kind of treatment or procedure that, in my agent’s sole discretion, my agent thinks necessary for my benefit and well being.  

Mr. Magney’s directive asks all health care institutions and professionals to abide by “all decisions and instructions of my agent.”  The directive was explicit in listing the health care decisions for which Mrs. Magney had authority.  They include  

(1) the “consent, refusal of consent, or withdrawal of consent for any care, treatment, service, or procedure to affect my physical or mental condition․;” 

(2) “the selection and discharge of health care providers and institutions, approval or disapproval of diagnostic tests, surgical procedures, and programs of medication;” and 

(3) “directions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation.” 

Mr. Magney made his reliance on his health care agent clear: 

I trust my agent [ (my wife) ], who knows and understands my desires, and in whose judgment I have absolute faith, to exercise discretion in a manner [she] thinks would be satisfactory to me.  

His directive lists his instructions about his health care: 

If I have an incurable or irreversible physical or mental condition, even if I am not in a persistent vegetative state, I want care and treatment that will enable me to take part in activities of daily living, to eat and drink and to communicate meaningfully with others. I want to live my life with dignity and for my loved ones to have pleasant memories of my final days. Thus, I wish to be allowed to die without prolonging my death with medical treatment that will not benefit me.

Mr. Magney also listed his “personal values” that he wanted his wife to consider in making decisions about his medical treatment:

1. I want to die a natural death without having my life prolonged by nonbeneficial treatment.

2. I want my religious beliefs to be honored.

3. I want to die free of unnecessary pain and suffering even if pain medication will shorten my life.

4. I don’t want to be a burden to my family.

5. I don’t want my life prolonged, by any means, when this life has no more meaning for me.

The validity of Mr. Magney’s advance directive was never questioned by any party to the legal proceedings.  What precipitated the legal action by Adult Protective Services to override his advance directive was a report (by an unidentified person) that Mr. Magney was in extremely poor medical condition and lacked appropriate hygiene when his physician had him admitted to the hospital.

The facts of the case are succinctly stated by the appellate court (citations are omitted): 

The Health Care Decisions Law recognizes and protects the “fundamental right” of adults to control decisions concerning their own health care, “including the decision to have life-sustaining treatment withheld or withdrawn.” Humboldt County Adult Protective Services (Humboldt) filed a petition under this law, ex parte and without notice, to effectively revoke Dick Magney’s written advance care directive (the validity of which has never been questioned) by removing his wife as his designated agent for health care decisions and to compel medical treatment. Humboldt took this action two weeks after Mr. Magney was hospitalized and while he was receiving palliative care, the course recommended by his treating physician (as well as by his prior treating physician and consulting cardiologist) and desired by both Mr. Magney and his wife.

Humboldt succeeded in procuring a temporary treatment order. It did so not only on the basis of an appallingly inadequate evidentiary showing, but also by misleading the trial court both as to pertinent provisions of the Health Care Decisions Law and as to Mr. Magney’s medical status. Among other things, Humboldt deliberately made no mention of the physician actually treating Mr. Magney at the time, withholding from the court that physician’s medical assessment of Mr. Magney’s condition, and specifically, her opinion that palliative care was appropriate and consistent with his wishes. Within days of Mrs. Magney retaining counsel, Humboldt withdrew its petition and the trial court vacated the temporary treatment order.

Mr. Magney, age 74, died shortly afterward.  In late March, 2019, after the trial and appellate court considered all of the facts and relevant law, which was almost completely against the county, the parties reached the $1 million settlement.

While Adult Protective Services (APS) may have had a legitimate basis for investigating whether Mr. Magney had been receiving appropriate care before his hospital admission, its inquiry was one-sided, limited, careless, deceitful, and incomplete.  APS  failed to ascertain that his competency came and went, concluding that if he was not competent when their staff interviewed him that he must permanently lack capacity, an erroneous assumption, but still an irrelevant one in light of his advance directive.  The court elaborated on this matter:

While it may have been Humboldt’s view that further medical treatment was in Mr. Magney’s “best interest,” that was not consistent with his instructions or stated personal values—all of which he set forth when he indisputably had capacity to make health care choices and none of which Humboldt ever discussed or directed the trial court’s attention to in its removal petition or application for an order compelling treatment.

As Thaddeus Pope pointed out in his legal treatise discussed in earlier posts, contrary to the beliefs of many in the medical community, clinicians, health care providers, and government entities can entail significant damages when they fail to follow the valid directives of patients at the end of life.  And this case also demonstrates that having an assertive surrogate decision-maker is essential to having one’s directives honored.