X-Message-Number: 6326
Date: Fri, 07 Jun 1996 09:36:13 -0700
From: David Brandt-Erichsen <>
Subject: Lawsuits over ignored medical directives

Here is an interesting front page feature article on a complex issue from
the NEW YORK TIMES (JUNE 2)


          IGNORING 'RIGHT TO DIE' DIRECTIVES,
          MEDICAL COMMUNITY IS BEING SUED


          By TAMAR LEWIN

          For the last four years, Brenda Young has spent her
          days in torment, rhythmically screaming and
          thrashing in her mother's modest house in Flint, Mich.

          Since a seizure in 1992, Ms. Young, now 38, has needed
          total care. She must be fed, bathed, diapered and, at
          night, tied into bed so she does not push herself over
          the padded bed rails. Sometimes she manages a few
          intelligible words: "Water" or "Bury me." But mostly she
          screams, over and over.

          It is precisely the kind of existence that Ms. Young
          sought to avoid by signing an advance directive, on her
          doctor's advice, one month before the seizure that left
          her so disabled. Warned that the seizures she had been
          having were likely to worsen, Ms. Young gave her mother,
          Ramona Osgood, power of attorney to stop treatment if
          she became incapacitated. But to no avail: After her
          next seizure, Ms. Young was put on a ventilator,
          tube-fed and maintained through a two-month coma,
          despite her mother's insistence that she did not want
          life support.

          In a lawsuit against the hospital, Genesys St. Joseph,
          Ms. Young and her mother and daughter won a $16.5
          million verdict this year. Sue Zitterman, the lawyer
          representing the hospital, declined to discuss the case,
          except to say that the judgment had yet to be formally
          entered, and that the hospital would seek to have it
          modified or overturned. At trial, the hospital argued
          that the family had authorized the treatment Ms. Young
          received, that her doctors believed that they were doing
          what was best for her and that they could not predict
          how disabled she would be.

          Although the Michigan case is apparently the first of
          its kind in which a jury awarded substantial damages,
          hospitals, lawyers and right-to-die advocates say there
          is a new wave of lawsuits seeking to hold hospitals,
          nursing homes and doctors liable for ignoring living
          wills and other advance directives.

          "The Michigan case is one of these jolts in the field
          that sets off waves of discussion and reminds us how
          vulnerable we are, because we are human beings whose
          training and background are in saving lives," said
          Richard Wade, a spokesman for the American Hospital
          Association. "So it's going to take us a while to learn
          to deal with these end-of-life issues."

          The legal theories in such cases vary, with some based
          on charging negligence and others on intentional
          infliction of emotional, physical and financial
          distress. But increasingly, lawyers are arguing that
          treatment given against a patient's will is a form of
          battery, an illegal attack on the patient's body.

          "This is a new area of law, and the legal theories are
          still developing," said Anna Moretti, a lawyer with
          Choice in Dying, an advocacy group that tracks the
          cases. "But most people are using a theory of medical
          battery. The idea is that patients have a right to
          refuse treatment, so if the patient has expressed a wish
          not to have a particular treatment or procedures, and
          the doctors and hospitals do it anyway, it's legally
          like an assault on the patient."

          Suits Seek to Sway Culture of Medicine
          --------------------------------------

          Advance directives do not always resolve what to do in
          an emergency, doctors and hospital administrators say,
          both because patients and families often waver when
          confronted with imminent death and because it is often
          hard to predict whether an emergency intervention will
          improve the patient's quality of life or consign him to
          a long, painful process of high-tech dying.

          "No one acts out of malice but these are very
          complicated issues, and except in the most clear-cut
          cases, everyone following an advance directive has some
          doubts," said Mr. Wade, the association spokesman. "Even
          if you're sure this is what your relative wanted, you
          have some doubts, too. It's all a confluence of human
          judgments around a traumatic situation, and everything
          becomes different when it comes right down to it. No
          piece of paper tells you exactly what to do."

          But right-to-die advocates argue that hospitals still do
          not pay enough attention to patients' wishes. And, they
          say, the new lawsuits provide useful pressure to change
          a medical culture that too often insists on extending
          life, without regard to the patient's wishes or to the
          cost in pain and suffering.

          The pending lawsuits cover a wide variety of situations.
          Among them are the following:

          ¶ An Arkansas woman whose husband collapsed from
          end-stage heart disease, and was resuscitated, filed
          suit this year, saying she was forcibly ejected from his
          hospital room when she protested that, as her husband's
          legal proxy, she wanted to stop the resuscitation
          effort. The complaint charges battery of both husband
          and wife, and intentional infliction of emotional
          distress.

          ¶ A California man whose wife had a degenerative and
          fatal genetic disease had her admitted to the hospital
          in 1994, when she was having seizures and seemed to be
          dying, with the understanding that she was to receive
          only comfort measures. But two days later, the hospital,
          over his objections, inserted a feeding tube, strapped
          her to the bed and provided antibiotics to treat the
          pneumonia she was developing. She is still alive, and in
          need of full-time nursing care; her husband has sued the
          doctor and the hospital.

          ¶ Four days after an Indiana woman suffered a massive
          stroke that left her in a persistent vegetative state,
          the hospital where she was treated removed her feeding
          tube, after consultation with her family, including the
          son who held her power of attorney. She was then sent
          back to her nursing home, where she was to be allowed to
          die naturally, receiving only intravenous fluids. But
          less than two weeks later, the nursing home put a
          feeding tube into her stomach and restarted nutrition,
          keeping her alive five more months. The family is suing
          for fraud and negligence.

          ¶ An Ohio man, Edward Winter, told his doctors and his
          children that he would not want resuscitation, after
          watching the slow death of his wife, who suffered brain
          damage after being resuscitated through electric shock
          following a heart attack. But a few months later, when
          Mr. Winter, 82, had a heart attack himself, he was
          shocked back to life at a hospital. He then suffered a
          stroke that left him partly paralyzed, barely able to
          speak and mostly confined to bed in a nursing home.

          The lawsuit he filed in 1989, the year before he died,
          was initially dismissed on the ground that keeping
          someone alive against his will is not a legal wrong. But
          in an appeal argued to the Ohio Supreme Court in May,
          Mr. Winter's lawyer, William Knapp, argued that the case
          was based on negligence and battery, not a claim of
          "wrongful life."

          Medical Experts Defend Decisions
          ---------------------------------

          In most of the cases, the doctors and hospitals defend
          their actions, asserting that saving a life is never
          against the law.

          Deborah Lydon, the lawyer representing the Ohio
          hospital, said: "We don't think it's appropriate to say
          you can recover damages for living, and we're concerned
          that an adverse decision would cause health
          practitioners to be terribly confused about which way to
          proceed if there was an emergency health-care decision.
          It's terribly difficult to know one way or another what
          the outcome is going to be, in many cases."

          And the decisions must often be made very quickly.

          "A good bit of the urgent care hospitals offer must
          start literally in minutes, so we've developed the
          mentality that if you don't intervene and the patient
          dies, maybe you will be liable," said Dr. Nancy Dickey,
          chairwoman of the board of the American Medical
          Association. "The thinking has been that if you do
          intervene and you shouldn't have, the worst that will
          happen is that the patient will live a little longer and
          that you'll never be held accountable if you keep the
          patient from dying. Of course, that's not true anymore."

          Dr. Dickey and others say doctors and hospitals are
          slowly changing their attitudes and talking more with
          patients about their desires on treatment.

          "This goes very deep in hospital culture, and it's going
          to take a lot to change it," said Daniel Callahan, an
          expert on end-of-life medical care who is president of
          the Hastings Foundation, which specializes in issues of
          biomedical ethics. "One way that may happen is through
          legal pressure and jury verdicts. If doctors get worried
          that they'll get sued if they don't do what the patient
          directed, it's bound to affect their behavior."

          Advance Directives Found Ineffective
          ------------------------------------

          The lawsuits come at a time when patients' end-of-life
          decisions are getting new attention. Over the last two
          decades, every state has provided mechanisms for people
          to declare, in advance, what measures they want taken if
          they are incapacitated, or to name a proxy who will make
          such decisions, or both.

          Since 1990, the Federal Patient Self-Determination Act
          has required hospitals and nursing homes to tell
          patients, on admission, of their right to file an
          advance directive, and to refuse treatment. And just
          this year, two Federal appeals courts -- in New York and
          California -- have struck down laws prohibiting
          physician-assisted suicide.

          Despite all the legal momentum, advance directives have
          done little to change end-of-life medical care,
          according to a study financed by the Robert Wood Johnson
          Foundation and made public late last year.

          The study, which has generated criticism and debate in
          the medical community, found that fewer than half the
          doctors knew when patients wanted to avoid
          resuscitation, that half the patients who died in the
          hospitals were in moderate to severe pain at least half
          the time, and that more than a third of those who died
          spent at least 10 days in intensive care, comatose or on
          a ventilator.

          What stunned the medical community even more was another
          finding, that intensive efforts to improve matters,
          using nurses to talk to families and doctors and
          encourage planning, had no influence on how much the
          patients' wishes were followed or how much aggressive
          treatment they received before dying.

          'It's a Living Hell,' One Mother Says
          --------------------------------------

          Brenda Young's case, in Michigan, is a good example of
          how decisions are made on the spot, even when the
          patient has an advance directive.

          Ms. Young was in good health until 1977, when she
          suffered a brain hemorrhage, and her doctors found that
          she had abnormal vessels in her brain. She began having
          bad headaches and increasingly severe seizures. Her
          doctor warned her that at some point the seizures would
          be so severe that she would emerge profoundly disabled,
          if at all. It was that warning that sent Ms. Young to
          the lawyer, to make her mother her health proxy.

          On Feb. 3, 1992, when Ms. Osgood found her daughter in
          the midst of a seizure, she called the ambulance, and
          took her to Genesys St. Joseph, taking the power of
          attorney with her. Ms. Young was found to be in critical
          condition by the time she arrived at the hospital, and
          doctors repeatedly came out to seek her mother's
          permission for the procedures they wanted to begin.

          Clark Shanahan, the lawyer representing the family,
          described the back and forth: "The doctors would come
          out and say, 'Can we have your consent to put your
          daughter on a ventilator,' and she'd say, 'That ain't
          life support, is it? She doesn't want life support,' and
          they'd say, 'No, we're just trying to make her more
          comfortable,' so she'd agree."

          Ms. Shanahan continued: "Then it was dialysis, then
          dopamine, then blood transfusions. Ms. Osgood has a
          fifth-grade education, and she had no idea what she was
          consenting to. And no one really explained it."

          At trial, witnesses for the hospital testified that they
          had tried to explain their treatment decisions and that
          Ms. Osgood had seemed conflicted, but had agreed to the
          treatment. An outside hospital-ethics expert testified,
          however, that the records show the doctors never fully
          explained Ms. Young's situation to her mother and she
          never understood enough to give genuine consent.

          Either way, the results have been disastrous. Ms.
          Young's father, unable to stand it, abandoned his wife
          and home after more than 30 years of marriage, and her
          daughter, Chastity, married and moved out of state at
          the age of 17. Ms. Osgood has tried to place her
          daughter in a convalescent home, but none has been
          willing to cope with the screaming.

          And it may be years before Ms. Osgood gets enough money
          to pay for round-the-clock nursing as the verdict makes
          its way through the appeals process.

          "It's a living hell, really a living hell," Ms. Osgood
          said in a videotape of her daily life made two years ago
          for the lawsuit. "I get no rest, no sleep. The girl
          hollers constantly. She screams very, very loudly, for
          five or six hours at a time. I don't know how she does
          it, but she does it. It's got to me, physically and
          mentally."

 <David Brandt-Erichsen>


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