COMMENTARY

A Hospital Gets Sued for Keeping a Patient Alive

Arthur L. Caplan, PhD

Disclosures

June 15, 2017

Hi. I'm Art Caplan, and I am at the New York University (NYU) School of Medicine, where I direct the program on medical ethics. I know you hear a lot about lawsuits, fear of lawsuits, and defensive medical practice these days, and it has been true for a while. Something just happened with a lawsuit that I suspect you haven't heard of—and that's suing because the patient lived. How did that come to pass?

An older woman in Maryland with many, many medical problems had filled out her advance directive; had her husband's consent; had a meeting with her children in the family home; and affirmed that if she went into the hospital with all these basically lethal conditions, no one was supposed to resuscitate her. When she went into cardiac and respiratory arrest, resuscitation efforts were made by hospital staff. They broke her ribs, punctured a lung, and she went through some of the bad sequelae that could happen when you try to resuscitate someone. The family was outraged. She was outraged. They say they are going to sue the hospital for keeping her alive.

It is not the first time that a lawsuit such as that has been instituted. There are cases in Georgia and Ohio where people have said, "You didn't follow my advance directive; you didn't do what I told you I wanted, and you kept me alive and I'm going to sue you."

In all honesty, I wouldn't worry a great deal about these lawsuits, because it's hard to go to court and argue, "What are the damages for keeping me alive?" It's not something about which judges and juries would probably say, "Well, you'd be better off dead." In that sense, it is not like lawyers are being attracted to want to file these suits.

Obviously, you do want people to follow patient wishes. When they bother to take the time to fill out an advance directive and to involve the family in gaining their approval and understanding of what the patient wants, including no resuscitation, then unless there is a mistake or an error and somebody ought to be resuscitated because there's a way to help them and give them quality of life or a therapeutic outcome (not just keep them going), their wishes ought to be respected. It shouldn't take a lawsuit or a threat of a lawsuit to achieve that.

We don't do what we should with advance directives in hospitals and nursing homes. Often, even though patients get asked at admission, "Do you have an advance directive or a living will?" that information doesn't seem to follow them into the institution. Primary care people sometimes know that a person has a living will or designated a decision-maker, but no one calls to ask whether that's the case, which is the kind of problem that leads people not to find these documents. Sometimes families aren't even asked whether there's any kind of living will, or whether they have durable power of attorney to make decisions for their loved one.

We have a communication problem, and we're not tracking patient wishes the way we should. There comes a time for many patients where they don't want any more care, where they can think this through and understand it, and they should say, "Don't resuscitate me." If we put a bracelet on them, a mark in the chart, or some type of signal that would say this person is do not resuscitate (DNR), then that's great. We also want to make sure that we're having that conversation with an older or an at-risk patient—for example, "What do you want if things go south?"

Communication, not lawsuits, are the answer, but we should be trying harder to make sure that we pay attention when someone says, "Don't do any more for me."

I'm Art Caplan at the School of Medicine at NYU. Thanks for watching.

Talking Points: How Should a Patient's DNR Order Be Shared With Hospital Staff?

Issues to consider:

  • Most adults (90%) say that they would prefer to receive end-of-life care in their home if they were terminally ill, yet data show that only about one third of Medicare beneficiaries (aged 65 years or older) died at home.[1]

  • In 2016, Medicare began covering advance care planning—discussions that physicians and other health professionals have with their patients regarding end-of-life care and patient preferences—as a separate and billable service.[1]

  • Many healthcare professionals contend that patients who have already considered their options may need only one advance care planning conversation with their physician; however, some healthcare professionals are concerned that beneficiaries may require a series of conversations with their physician or other health professionals to clearly understand and define their end-of-life wishes.[1]

  • Physician Orders for Life-Sustaining Treatment (POLST) forms become part of physicians' orders; they apply in every healthcare setting and provide a clearer guide to patients' wishes than standard advance directives.[2]

  • California, Oregon, and West Virginia are designated "Mature POLST Paradigm States: 3," which is the highest level of endorsement by the National POLST Paradigm Task Force.[3]

  • Healthcare providers contend that many patients in the hospital leave their advance directives at home, in lawyers' offices, or in safe deposit boxes—rendering them useless if a person can't direct his or her own care, or if family members are in disagreement or are searching through drawers and files for the paperwork.

  • Some healthcare providers worry that information they receive from a person whom they assume is a patient's appointed decision-maker may not be the designated healthcare proxy.

  • Advance care planning leads to better care; higher patient and family satisfaction; fewer unwanted hospitalizations; and lower rates of caregiver distress, depression, and lost productivity, according to recent studies.[4]

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