Refusing unwanted medical treatment–Part 1

An important right in managing end-of-life medical treatment is the right to make our own decisions, either directly or through a surrogate, about when to refuse unwanted treatments.  No one has done more to call attention to the right to reject unwanted medical treatment than Thaddeus Pope, a law professor at the Mitchell Hamline School of Law in St. Paul, MN, and Director of its Health Law Institute.  He is an adjunct professor of bioethics and health law at several other academic institutions and programs in the US and abroad, and publishes extensively in those areas, particularly concerning end-of-life decision-making.  He maintains the Medical Futility Blog.

One matter that Professor Pope tracks is litigation against medical providers who treat patients in ways the patients do not want to be treated, in direct violation of their expressed written choices, their verbally-expressed decisions, or the decisions of their medical agents.  In January, such a case was widely reported.  The New York Post provided this information from the lawsuit that has been filed–

Patient:  Dr. Gerald Greenberg, a retired periodontist, age 63, who had been diagnosed with Alzheimer’s 6 years before receiving unwanted medical treatment;

Facts:  Elaine Greenberg, wife of the patient, reported that patient had completed a health care advance directive  (AD) just after his Alzheimer’s diagnosis while he still had mental capacity.  the directive provided “that he was to be given ‘comfort measures only, no intravenous fluids and no antibiotics,’ if his condition became incurable . . . .”

Patient was receiving care in a nursing home when he was found lying on the floor for over a day.  He was transferred to a hospital, where his son provided a copy of the patient’s.  He was tentatively diagnosed with “life-threatening sepsis.”  The family agreed that the patient’s AD should be honored because “he would never be able to regain any type of normal mental or physical function.”  He was expected to survive for no more than four days without treatment.

A doctor at the hospital was notified of the decision and noted this decision in the patient’s chart.  Nevertheless, the following day, another doctor ordered intravenous antibiotics to be given to the patient for three days, along with tests and other treatments.  The family attempted to intervene, but the hospital prevented them from speaking to the prescribing doctor.  The patient’s wife suggested that the prescribing doctor may have wanted to enforce his own values by disobeying the clear decisions found in the AD, or he may have ordered the tests and additional treatment for financial gain.

The patient remained in the hospital for several weeks, during which time he had “to endure the pain and discomfort of dying from a lack of hydration/nutrition. . . .”  He was moved from the hospital to a hospice facility on Dec. 2, 2016, and died Dec. 5.

Lawsuit defendants:  Those sued include the prescribing doctor, the hospital, and the hospital’s parent company.

Professor Pope has discussed the legal issues surrounding unwanted life-sustaining medical treatment (not all of which may be involved in this case) in several papers, including here.  He provides the context in which the legal issues arise in this summary–

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.

Professor Pope has identified “Twelve Leading Causes of Unwanted Life-Sustaining Treatment”–

  1. Inadequate Advance Care Planning

  2. Clinician Misinterpretation of, and Confusion on, Advance Directives

  3. Uncertain Validity of Advance Directive

  4. Uncertain Applicability of Advance Directives

  5. Demanding or Conflicting Surrogates

  6. Uncertain Status of the Surrogate Decision Maker

  7. Uncertain Patient Decision-Making Capacity

  8. Inadequate Informed Consent

  9. Negligent Maintenance of Medical Records

  10. Vitalistic Philosophy of Medicine

  11. Conscience-Based Objections

  12. Financial Incentives

The legal principles on which courts have based a right to withdraw or refuse unwanted life-sustaining medical treatment (LSMT) include the common law, some state constitutions, the US Constitution, and the concept of informed consent.  Professor Pope discusses  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. . . . [along with] administrative sanctions and criminal liability.

Often, medical providers believe that they face little liability for providing unwanted LSMT, partly because efforts by some attorneys to establish a cause of action for “wrongful living” have not been successful.  Limited liability for unwanted treatment may have been true twenty years ago, but is less so today.  Unwanted LSMT creates significant jeopardy for medical providers who ignore a patient’s wishes.

Professor Pope identifies “ignorance and misunderstanding of the law” by medical providers as the primary reasons patients’ advance instructions are not followed consistently.  These factors lead to the perception by doctors “that the legal risks are lower than they actually are.”

The most important recent addition to advance directives is the advent of POLST (Physician’s Orders for Life Sustaining Treatment, also termed Medical Orders for Life Sustaining Treatment-MOLST, and Medical Orders for Scope of Treatment-MOST).  To keep up with POLST developments around the country, see the National POLST Paradigm website.  With a POLST, there should never be confusion about LSMT decisions because a POLST is a doctor’s written orders agreed to by the patient (or the patient’s medical surrogate) and signed by both, usually when the patient is believed to have less than a year to live.

The next post will explore more of Professor Pope’s research about unwanted LSMT.