When we ask our clients if they would ever want to be artificially kept alive on a machine or the like, they almost invariably answer NO. We have all seen too many horror stories of individuals who end up living a sad existence in a vegetative state for a prolonged period of time. Almost all of our clients seek to avoid such an occurrence. Almost all of our clients would like a living will. That is a document that legally declares if the physicians ever determine that a condition is terminal and nothing can be done to make the patient better, then the patient does not want to be artificially kept alive. But what happens if the doctors ignore a patient’s end of life wishes? Can doctors or hospitals ever be held accountable for taking matters into their own hands?
A New York Times article from April 10, 2017 entitled “The Patients Were Saved. That’s Why the Families Are Suing” describes a few such cases in recent years. Consider what happened to Maryland resident Beatrice Weisman. In June 2013 Ms. Weisman suffered a stroke. Prior to that time she and her husband William had each executed an advance medical directive that provided that the spouse of each could make medical decisions if they were no longer able to do so for themselves. Following his wife’s stroke, William convened a difficult family meeting in August so they could together discuss Beatrice’s situation. After that meeting Mr. Weisman went ahead and signed a so-termed Medical Orders for Life-Sustaining Treatment, (“MOLST”) which declared that if his wife’s heart or lungs failed, she should be allowed to die.
Despite being in receipt of a clear legal declaration from Ms. Weisman’s duly named health care representative, her hospital disregarded those instructions. On August 23 when Beatrice was discovered turning blue in her bed, the facility went ahead and performed CPR. Many people don’t realize that CPR is a physically violent procedure. Beatrice ended up with broken ribs and collapsed lungs. The Weismans’ son Christian describes the trauma his father felt: “My father was distraught.” He explained that his parents “had done everything the way they were supposed to — the wills, the advance directives, the MOLST,” and yet the hospital still “violated her wishes.” Mr. Weisman has now brought suit against the hospital for its treatment of his mother, alleging assault, negligence, the “intentional infliction of emotional distress” and other claims.
The Times article explains that historically the legal system has been unreceptive to suits brought by the families of patients who saw their loved ones suffer unnecessarily. Yet in recent years, courts have gradually been more receptive to this type of litigation which could be termed “wrongful life” cases. In Georgia a lawsuit has been brought against Doctors Hospital of August and a surgeon. The claim is being brought by the granddaughter of a 91 year old woman who was put on a ventilator in 2012. That decision directly contradicted the grandmother’s advance directive and verbal instructions from the granddaughter acting as health care agent. In that litigation the defendants tried to claim immunity. Yet this past July the Georgia Supreme Court denied the immunity claim, stating flatly that “it is the will of the patient or her designated agent, and not the will of the health care provider, that controls.”
The article relates that sometimes problems arise due to actions by the patients themselves. End of life care instructions may be vague or documents may be inaccessible since they are left at home or at a lawyer’s office. That is why in our practice we always make a point of drafting clear and direct advance medical directives. And we make use of a secure online service to render our clients’ medical directives accessible from anywhere in the world, 24 hours a day. That is so we can be confident that the vast majority of the time, our clients’ end of life care wishes will be respected. But we know that sometimes that will not happen without our intervention. So we must remain vigilant to advocate for our clients to ensure that each and every one has their own personal wishes respected by medical providers.
If you have any questions about the issues presented above or care to discuss any other planning issues, please call us at 860-769-6938, visit our website at http://www.weatherby-associates.com or email us at info@weatherby-associates.com.
