Republished from: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2208033
By: Thaddeus Mason Pope- Hamline Unviserty - School of Law
2012 - Journal of Health & Biomedical Law, Vol. 9, No. 2, PP: 213-296, 2013
Both medical and legal commentators contend that there is little legal risk for administering life-sustaining treatment without consent. In this Article, I argue that this perception is inaccurate. First, it is based on an outdated data set, primarily damages cases from the 1990s. More recent plaintiffs have been comparatively more successful in establishing civil liability. Second, the published assessments focus on too-limited data set. Even if the reviewed cases were not outdated, a focus limited to civil liability would still be too narrow. Legal sanctions have also included licensure discipline and other administrative sanctions. In short, the legal risks of providing unwanted life-sustaining treatment are not as rare, meager, and inconsequential as often depicted. In fact, sanctions for administering unwanted treatment are significant and growing.
In Section II, I quickly summarize the now well-established legal bases for the right to refuse life-sustaining treatment. In Section III, I demonstrate that clinicians regularly breach their duty to respect patients’ right to refuse. In addition to reviewing the literature, I summarize key statistical measures establishing the size and scope of the problem. Fortunately, the reports are not all bad. The prevalence of unwanted life-sustaining treatment may be shrinking with the increasing implementation of POLST. Still, the problem remains significant.
In Section III, I identify twelve leading factors that cause clinicians to administer unwanted life-sustaining treatment: (a) inadequate advance care planning, (b) clinician misinterpretation of and confusion on advance directives, (c) uncertain validity of advance directives (d) uncertain application of advance directives, (e) demanding and conflicting surrogates, (f) uncertain status of the surrogate decision maker, (g) decision making capacity; (h) inadequate informed consent, (i) negligent maintenance of medical records, (j) vitalistic philosophy of medicine, (k) conscience-based objections, and (l) financial incentives.
In Section IV, I establish that clinicians think administering unwanted life-sustaining treatment entails little legal risk. This perception is based on three main factors. First, clinicians are often able to obtain injunctions and guardianships authorizing treatment. Second, the salience of unsuccessful cases for damages makes it appear that administering unwanted treatment entails little legal risk. Third, this perception is bolstered by the visibility of four legal obstacles to liability: (a) the rejection of the “wrongful living” cause of action, (b) the emergency exception to the consent requirement, (c) safe harbor immunity under healthcare decisions acts, and (d) conscience clauses.
Finally, in Section V, I demonstrate that this “no risk,” “low risk” perception is wrong. I show how health care providers have been increasingly subject to sanctions for administering unwanted life-sustaining treatment. I review nine theories of civil liability: (a) battery, (b) informed consent, (c) negligence, (d) intentional infliction of emotional distress, (e) negligent infliction of emotional distress, (f) breach of contract, (g) health care decisions statutes, (h) POLST statutes, (i) Section 1983, and (j) the False Claims Act. I also review administrative sanctions and criminal liability. Furthermore, not only have providers been sanctioned but also with recent increased patient protections, they are likely to be increasingly sanctioned.
The right to refuse life-sustaining treatment has been established for decades. But, as with many principles in bioethics, like the related doctrine of informed consent, there remains a wide chasm between legal and ethical principles, on the one hand, and the reality of clinical practice, on the other. In contrast to other commentators, I have aimed to establish that the prospect for enforcement and protection of patient rights is not as dismal as commentators often depict. In fact, both private litigants and government regulators have been imposing sanctions that are increasingly severe and frequent.Keywords: life-sustaining treatment, POLST, advance care planning, advance directives, surrogate, informed consent, medical records, vitalistic philosophy, wrongful living, guardian, safe harbor immunity, intentional infliction of emotional distress, False Claims Act, patient.