Living Wills Present Challenges

Patient rights in the living will area are governed by the federal Patient Self Determination Act of 1990, which requires hospitals financed by Medicaid and Medicare to inform patients of their right to specify whether or not they want life support. Every state has laws that allow some type of advance directive.

Among the ways patients can convey their wishes are living wills, which observers complain are sometimes too vaguely written, and “durable powers of attorney,” which give relatives or others the right to act on the patients’ behalf.

In many cases, hospitals and surviving family members wind up litigating over who will pay medical bills once the patient is saved.

Other family lawsuits include charges of battery, pain and suffering of both the patient and family members, negligence and demands for punitive damages. Coverage, if any, for these damages likely would fall under hospitals’ professional liability policies.

“I think in some sense we’re walking on the moon. We’re leaving footprints that have never been made before in an area that’s untrodden,” Fishlin said.

Others, however, doubt these lawsuits will become numerous or represent a significant legal trend.

“I think it would be very difficult to argue to a jury that doctors should be faulted for saving a person’s life under any circumstances,” said healthcare attorney Andrew C. Meyer, of Lubin & Meyer in Boston.

Furthermore, “Civil litigation is totally based on compensation for losses sustained, and if a person is living it’s hard to argue that in fact it’s a loss sustained,” Meyer said.

“My guess is that hospitals will not frequently face this,” said John Kelner, a Miami-based attorney who represents hospitals. “It will be the errant lawsuit where a mistake is made resulting in a sustained life of misery. Those should be few and far between.”

Between 1976 and 1990, one study has found, there were several thousand “end of life” decision-making cases across the country, said Alan Meisel, a professor at the University of Pittsburgh law school. Of the 75 that reached the appellate level, only six to 12 involved claims for damages, he said,

“The risk of liability could increase,” he said, But suing a hospital for saving a life is “not going to be the easiest sell before a jury. Maybe as more and more jurors confront these kinds of things in their own lives, their families, they will begin to see the other side of it, but even then you’ve got this very, very serious problem of proving damages.”

Damages may be clear if someone is in a persistent vegetative state for many years with expensive nursing care. But when a person dies relatively soon afterward, the damage is not likely to be high and big jury awards may be overturned or the cases settled on appeal, Meisel said.

Many hospital risk managers say they are on top of the situation and are taking steps to minimize their exposure.

If you make sure you follow the advance directives and educate your staff, “you shouldn’t have that problem,” said Carl Haeberlin, risk management coordinator at Lakeland (Fla.) Regional Medical Center.

“It is not a concern at all from my standpoint because we are complying with the law,” said Erik Rasmussen, general counsel at Multi-Care Health System in Tacoma, Wash.

“This has not been a major issue for us. I think we’ve probably done a pretty good job of educating our clinical staff,” though it is “certainly one of many areas of concern that I think any risk manager would be appropriately sensitive to,” said Mark Hubbard, director of risk management and vice president at Loma Linda (Calif.) University Community Medical Center.

Other risk managers, though, say it is a more serious concern. Particularly because some of the living wills were created before the massive databases of today’s healthcare computer systems. As well, those living wills that are documented electronically can go missing due to hard disk drive failure. A recent case in Mississippi saw a doctor drop his laptop and require laptop data recovery in order to retrieve the will. The resulting lawsuit from the family was very expensive for the organization.

Peggy Nakamura, director of risk management at Adventist Health System/West in Roseville, Calif., and president-elect of the American Society for Healthcare Risk Management, said it’s an issue of “major concern, given the latest Patient Self-Determination Act regulations and also some state-specific activities that have gone on.”

Aside from federal and state requirements, hospitals “genuinely want to assist people in carrying out their wishes,” said Philip A. Schaedler, director of risk management for Presbyterian Health Systems in Charlotte, N.C.

“The logistics of that, though, are terribly difficult. People are admitted to hospitals in less than a conscious state, or they have forgotten to notify their primary physician or some other responsible party that they have these documents in place and that they have given these advance directives…and so there’s no way these things become known to the hospital until after it’s too late,” Schaedler said.

“It concerns me that there could be a breakdown in communications,” said John B. Smither III, director-risk management at Alliant Health System in Louisville, Ky.

While the hospital system has tried to improve communications with doctors and others, “there’s always a chance somebody might not be aware of the patient’s status and find them in an unresponsive state and attempt to resuscitate,” he said. That has not happened at Alliant.

“It’s something we’re concerned about,” said Harlan Hammond, assistant vice president of risk management services at Intermountain Health Care in Salt Lake City, which operates 24 hospitals, primarily in Utah.

Recently, a patient with an advance directive was receiving radiology treatment at one of those hospitals when he had a medical crisis. His records were not on hand and doctors revived him, Hammond said. The hospital is now considering specially colored identification bracelets for patients with DNR orders.

Hospitals also need to make sure that those actually caring for patients are made aware of DNR orders, he said. Further complicating matters for risk managers is the fact that, in a crisis, even family members who know of the orders may seek medical help for loved ones.

“That’s probably the core basis of why this is such a big issue,” Hammond said. “Healthcare providers don’t go into the business to help people die. In the panic of the moment, and when they’re really faced with the reality of letting that loved one go, they have to be able to override those instincts. There’s a hierarchy of consent in these issues that is addressed by the advance directives.”

Difficulties also can arise in ambulatory-care settings, said Adventist’s Nakamura. When you have a full continuum of care in integrated delivery care settings–including emergency medical technicians responding to situations in long-term-care facilities or at home–the question is “how clear and easy is it to understand all the forms we have, and how does that translate when you get the patients to the emergency department,” she said.

Emergency medical technicians, for example, “don’t have time to go through a pile of paperwork …. Not all states permit medical alert bracelets that could provide some of this information,” Nakamura said.

Another problem is that even if there are living wills or other patient directives, they may be outdated or not applicable to a particular situation.

“Most of us draft our advance directives not knowing what circumstances will call those into play,” said Morris Linton, senior counsel at Intermountain. “Some people have diabetes or are diagnosed with cancer, and so they have a fairly good idea of when death is impending (and) of what will be the cause of death.”

But those who complete their advance directives when they are still healthy do not have this knowledge. “A lot of people say if they couldn’t hold on to a job or hold their grandchildren, they wouldn’t want to be alive, but when they’re incapacitated they realize they have abilities or strengths or appreciations that they didn’t have before, and their views are modified a lot.”

Ambiguity in the orders also can cause problems.

“The dilemma is when you don’t have a clear understanding in a written form from the patient or, sometimes, that you might not have all the dynamics worked out in a difficult family situation, so there’s conflict,” Nakamura said.

When there is any ambiguity, hospitals try to save the patient, noted Deborah Formiconi, loss control director at Sutter/CHS in Sacramento, Calif. “I would rather have a wrongful life claim than a wrongful death claim.”

Hospitals must be prepared, said Faye Rozovsky, director of risk management and legal affairs for AIG Consultants healthcare division in Philadelphia.

Health organizations need policies and procedures to follow when they encounter living wills, durable powers of attorney or healthcare proxies–from their own or other jurisdictions.

Risk managers also must educate healthcare professionals “to respond appropriately,” and the third part of this process is documentation, “to leave the appropriate paper trail that the right response has been taken in a given instance,” Rozovsky said.

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