Physician authority for unilateral DNR orders.

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Physician authority for unilateral DNR orders a

Frank H. Marsh J.D., Ph.D. & Allen Staver J.D.

b

a

Professor of Medical Ethics, School of Medicine , University of Colorado Health Sciences Center , Campus Box C 245, 4200 East Ninth Avenue, Denver, Colorado, 80262 b

Associate Counsel, University of Colorado Health Sciences Center , Published online: 23 Jul 2009.

To cite this article: Frank H. Marsh J.D., Ph.D. & Allen Staver J.D. (1991) Physician authority for unilateral DNR orders, Journal of Legal Medicine, 12:2, 115-165, DOI: 10.1080/01947649109510849 To link to this article: http://dx.doi.org/10.1080/01947649109510849

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The Journal of Legal Medicine, 12:115-165 Copyright © 1991 by Hemisphere Publishing Corporation

PHYSICIAN AUTHORITY FOR UNILATERAL DNR ORDERS

Downloaded by [New York University] at 06:22 22 May 2015

Frank H. Marsh, J.D., Ph.D.* Allen Staver, J.D.†

INTRODUCTION Since the introduction of external cardiac massage in 1960, cardiopulmonary resuscitation (CPR) is employed almost as a routine in a hospital setting. CPR is attempted on one-third of those who die in American hospitals.1 Because of the morbidity of CPR for certain patients, the routine application of the technique is open to serious question. Even though the decision against resuscitation is a matter for the physician's medical judgment, many physicians feel uncomfortable with exercising this judgment and continue to employ CPR even in cases where it offers little hope for the patient. The rationale generally submitted in support of this position is the inherent fear of malpractice liability that accompanies such decisions, particularly when the patient's/family's request for CPR conflicts with the physician's conception of acceptable practice.2 In these cases, patients almost invariably remain "full code," and the physicians feel obligated to provide treatment that they have reason to believe will not be beneficial and may actually be harmful.3 The physician's hesitancy to act unilaterally in these sorts of cases has its roots in the health rights movement of the 1970s that fostered an increase in specific demands by patients along with an erosion of the authority of the * Professor of Medical Ethics, School of Medicine, University of Colorado Health Sciences Center. Address correspondence to Professor Marsh at University of Colorado Health Sciences Center, Campus Box C 245, 4200 East Ninth Avenue, Denver, Colorado 80262. † Associate Counsel, University of Colorado Health Sciences Center. 1 Schiedermayer, The Decision to Forgo CPR in the Elderly Patient, 260 J.A.M.A. 2096 (1988). See also Blackhall, Must We Always Use CPR?, 317 N. ENG. J. MED. 1281 (1987). 2 Brett & McCullough, When Patients Request Specific Interventions: Defining the Limits of the Physician's Obligation, 315 N. ENG. J. MED. 1347 (1986). The authors also cite several other possible reasons for the increase in such requests by patients. These include the idea that public awareness has been heightened by the mass media's increasing fascination with medical advances, and the growing effectiveness of pharmacology in influencing the behavior of patients. 3 See Blackhall, supra note 1, at 1282.

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medical profession in the United States. Until the 1950s, the physician's recommendation was almost always the determining factor in important medical decisions. However, the decision-making process has changed dramatically over the past 20 years and physicians are no longer willing to make certain decisions unilaterally, despite clear authority to do so. This is the case with Do Not Resuscitate (DNR) orders, despite the morbidity of CPR for certain patients, the highly invasive nature of CPR, the resultant harm that often accompanies the measure, and the increasingly high costs associated with it. This article is concerned with the decision-making process and the extent to which an individual patient is entitled to request administration of CPR. In the discussion that follows, the physician-patient relationship is examined with emphasis placed upon the obligations and rights of the respective parties and the manner in which these obligations and rights are affected or otherwise qualified by the physician's assessment of the patient's condition. This article argues that a patient does not have a legal or ethical right to futile care. The concept of futile care within the context of CPR is set forth along with a discussion of a physician's liability for providing and not providing such care. At the conclusion of the discussion, specific guidelines are enumerated for issuing a DNR order without the patient's consent. I. CARDIOPULMONARY RESUSCITATION AS FUTILE CARE There is a clear consensus today that specific case profiles exist in which CPR would be futile care and in which the physician's issuance of a DNR order is appropriate.5 CPR as we know it today came into being after the invention of closed cardiac massage in I960.6 The technique originally was developed for victims of sudden cardiac or respiratory arrest, whether the condition was caused by drowning, electrical shock, anesthetic accident, heart block, acute myocardial infarction, or surgery.7 Since the inception of CPR, however, it has become common to attempt CPR procedure on any hospital patient who has a cardiac arrest. CPR is performed regardless of the patient's underlying illness and/or ability to survive the procedure.8 4

Brett & McCullough, supra note 2. See also F. MARSH & M. YARBOROUGH, MEDICINE AND MONEY: A STUDY OF THE ROLE OF BENEFICENCE IN HEALTH CARE COST CONTAINMENT 13-15 (1990).

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Bedell, Delbanco, Cook, & Epstein, Survival After Cardiopulmonary Resuscitation in the Hospital, 309 N. ENG. J. MED. 569 (1983); Murphy, Do-Not-Resuscitate Orders, 260 J.A.M.A. 2098 (1988); Moss, Informing the Patient About Cardiopulmonary Resuscitation, 4 J. GEN. INT. MED. 349 (1989); Taffet, Teasdale, & Luchi, In-Hospital Cardiopulmonary Resuscitation, 260 J.A.M.A. 2069 (1988). Schiedermayer, supra note 1, at 2096.

7

J. TALBOTT, FUNDAMENTALS OF CARDIOPULMONARY RESUSCITATION (1975).

8

Blackhall, supra note 1, at 1281.


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Physicians frequently do not offer their patients a choice between CPR and a DNR order and the affirmative decision to perform CPR usually is made without involvement of the patient or the patient's family.9 In many situations where no beneficial treatment options exist, and CPR would be futile, cardiopulmonary resuscitation efforts are still employed.10 The reverse, however, is not true. DNR orders seldom are issued without consent of the patient or the patient's family, even though the patient is not likely to survive CPR. Because "futile care" is viewed as a vague notion without empirical content, many physicians find themselves hopelessly trapped into administering CPR that is futile because consent for a DNR order was sought and refused." In these situations, when patients suffer cardiac arrest, they are usually subjected to the rigors of the highly invasive procedure until death ensues or the family consents to a DNR order. Tragically, many patients undergo several such futile measures before they finally succumb. Many competent studies indicate that survival after CPR is related to the patient's underlying illness, concluding that patients with certain conditions rarely survive.12 Nevertheless, there is still a strong tendency on the part of physicians and hospitals to look upon the idea of futility as a concept with ambiguous overtones when applied to medical treatment. The improbabilities associated with predicting outcomes in certain areas of medicine drastically affect the notion that there can be a clear understanding of what is futile care in other areas of medicine. It is in this context that there is an important misunderstanding regarding CPR. Specifically, physicians and hospitals are inclined to believe that CPR is futile only in situations where it would be futile to employ other life-prolonging treatments.13 This perception is erroneous. The question then becomes, what is futile care and when might CPR be considered futile? Generally, the term means care that serves no useful purpose and provides no immediate or long-term benefit.14 When this meaning is applied to individual cases, the interpretation given to the phrase "no 9

Bedell & Delbanco, Choices About Cardiopulmonary Resuscitation in the Hospital: When Do Physicians Talk with Patients, 310 N. ENG. J. MED. 1089 (1984). 10 Id. 11 Spencer, Code or No Code: A Non Legal Opinion, 300 N. ENG. J. MED. 138 (1979). 12 For the most comprehensive study, see Bedell, et al., supra note 5, at 569. See also Blackhall, supra note 1; Fox & Lipton, The Decision to Perform Cardiopulmonary Resuscitation, 309 N. ENG. J. MED. 607 (1983). 13 Tomlinson & Brody, Ethics and Communication in Do-Not-Resuscitate Orders, 318 N. ENG. J. MED. 43 (1988). Tomlinson and Brody suggest that "the judgment that an arrest and subsequent resuscitation would result in an unacceptable quality of life for the patient pertains to the undesirable consequences of those specific events; it implies nothing about the consequences of other lifethreatening events and their related treatments." Id. at 45. 14 Youngner, Who Defines Futility?, 260 J.A.M.A. 2094 (1988). See also In re Dinnerstein, 6 Mass. App. 466, 380 N.E.2d 134 (1978) (addressing the question of when treatment would be futile and would not be considered significant treatment).


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immediate or long-term benefit" sometimes can appear ambiguous. Immediate or long-term benefit may hold a different meaning in different situations. For example, when considering what is futile care from a physiological perspective, it may be noted that a vasopressor will not raise or maintain the patient's blood pressure. Yet, from the perspective of quality of life, an intervention that keeps a patient alive for months might well be judged futile because it does not achieve the important goal of permitting the patient to walk.15 In the past, there has been a tendency to declare CPR efforts successful if the patient is revived for a continuous period of one hour even though the patient's life is extended only a few hours.16 As a result, CPR is erroneously considered to be beneficial despite the fact that many patients to whom it is administered do not survive to be discharged from the hospital.17 This article contends that CPR is futile care in those sorts of cases and, as such, the treating physician has the unilateral authority to enter a DNR order.18 Two rationales generally are offered in support of a decision that CPR would be futile: (1) the intervention will be unsuccessful and thus would be of no medical benefit; or, (2) the intervention is based on a value judgment, for example, the quality of the patient's life, either before or after CPR, is unacceptable.19 While the second rationale is extremely important, it is not the focus of this article. In the view of the authors, when the quality of a patient's life is the controlling factor in a decision to forego CPR, the physician is always obligated to seek the patient's input before issuing the DNR order.20 This tact is quite different from a judgment by the physician that CPR is futile because it offers no medical benefit to the patient. While such a judgment is also value laden, it is derived solely from the diagnostic and prognostic medical expertise of the treating physician, which is independent of the subjective interests, goals, and desires of the patient. The values involved here—harm versus benefit—are central to the exercise of a physician's medical judgment. This article contends that physicians serve no use-

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Youngner, supra note 14, at 2094. Moss, supra note 5, at 349. See Murphy, Murray, Robinson, & Campion, Outcomes of Cardiopulmonary Resuscitation Elderly, 111 ANNALS INT. M E D . 199 (1989); Bedell, et al., supra note 5 , at 570.

in the

Moss, supra note 5, at 349. Moss defines the survivors of cardiopulmonary resuscitation as those patients who were discharged from the hospital alive after successful resuscitation. Temporary survivors are those patients who were successfully resuscitated but who died prior to discharge from the hospital. See Tomlinson & Brody, supra note 13, at 44. The authors suggest three rationales for DNR: (1) no medical benefit; (2) poor quality of life after CPR; and, (3) poor quality of life before CPR. Because both (2) and (3) are based on value judgments pertaining to the quality of life of the patient, we have merged the two into our second rationale, which focuses on value judgments from the perspective of the patient and/or family. Tomlinson & Brody, supra note 13, at 4 4 . See also Youngner, supra note 14, at 2095.


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fill purpose by offering the choice of CPR when CPR would be futile pursuant to the first rationale described above.21 In these situations, it is legally and ethically proper for the treating physician to issue a DNR order. The justification for such a unilateral decision by the physician is twofold: (1) resuscitation is futile and hence useless; and, (2) physicians are not required to provide or discuss useless therapy with patients.22 A judgment by the physician to forego CPR in a given case should be based on empirical data tied to the prognosis that the patient will not be discharged alive from the hospital even if CPR is administered. Thus, although CPR might revive the patient, perhaps for a period of days or weeks, the patient will not survive to be discharged from the hospital.23 While it has been difficult to develop criteria for determining which patients will benefit from CPR, new empirical data exists to profile the patient for whom CPR is futile.24 In these cases, guidelines or standards should be implemented by the hospital and medical staff for issuing DNR orders unilaterally. Although the definitive patient profile is constantly being enlarged as new studies emerge, patients for whom CPR is deemed futile include the following. 1. Patients who are brain dead. 2. Anencephalic newborns. 3. Patients with significant impairments such as metastatic cancer in agonal stage. 4. Elderly patients with acute stroke, sepsis, or pneumonia. 5. Patients with severe cardiomyopathy. 6. Elderly patients with renal failure who are found pulseless and apneic. 7. Elderly patients with asystole, electro-mechanical dissociation, or agonal rhythms. 8. Very low birth weight newborns who suffer a cardiac arrest in the first 72 hours following birth. 9. Patients with severe chronic lung disease.25

It should be noted that patients who qualify for a DNR order for reasons consistent with application of quality of life considerations are not 21

Disclosure of information should serve some useful purpose in making treatment decisions. R.

22

Murphy, supra note 5 , at 2098. Moss, supra note 5 , at 349. Murphy, supra note 5, at 2097. See also Bedell, et al., supra note 5 . The standards for CPR and ECC are set forth in Part VIII, Medicolegal Considerations and Recommendations, 255 J . A . M . A . 2979 (1986). T h e case profiles set forth are based on a consensus of the reported empirical data as of March 1, 1991. See Schneiderman, Jecker, & Jonsen, Medical Futility: Its Meaning and Ethical Implications, 112 ANNALS INT. M E D . 949 (1990); Lantos, Miles, Silverstein, & Stocking, Survival After Cardiopulmonary Resuscitation in Babies of Very Low Birth Weight: Is CPR Futile Therapy, 318 N . E N G . J. M E D . 91 (1988); Murphy, et a l . , supra note 17.

FADDEN & T. BEAUCHAMP, A THEORY O F INFORMED CONSENT 38-39 (1986). 23 24

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profiled. For example, patients in persistent vegetative states might very well survive cardiac arrest but a DNR order would be justified based on an unacceptable quality of life.26


II. THE PATIENT'S RIGHTS It is self evident that life is highly valued in our society. Formal recognition of that concept provides the basis from which patients' rights evolved. The preamble to the Declaration of Independence makes clear that each individual is endowed with certain inalienable rights, one of which is life. Under the United States Constitution, no individual can be deprived of this right without due process of law. Both documents indicate the importance of the legal protection of life and the availability of a legal forum to protect and to make decisions concerning this right. In medicine, this right is made operational by the principle of autonomy and the doctrine of informed consent.27 A. Patient Autonomy Versus Physician Authority Historically, the word "autonomy" is a legacy from ancient Greece, where autos (self) and nomos (rule of law) were joined together for political self-governance in the city-state.28 However, the idea of patient autonomy and the rights that spring from it have a relatively short history. As recently as 1960, the American Medical Association still embraced the dictates and admonitions of Thomas Percival's landmark treatise Medical Ethics.29 Percival's Medical Ethics, which appeared in 1803, presents the beneficence model as the broad framework for fashioning a medical ethic of physician authority. Moving from a premise that the pa-

26

Tomlinson & Brody, supra note 13, at 4 4 ; Youngner, supra note 14, at 2095.

27

I PRESIDENT'S COMMISSION FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND BEHAVIORAL RESEARCH, MAKING HEALTH C A R E DECISIONS (1982). T h e right to control medical

decisions affecting an individual's body was discussed by the United States Supreme Court in 1891 when it held that a plaintiff could not be forced by a court to submit to a surgical examination. " N o right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Union Pac. Ry. C o . v . Botsford, 141 U.S. 2 5 0 (1891). 28

R. FAPEN & T. BEAUCHAMP, supra note 2 1 , at 8. Two figures in the history of philosophy have shaped our understanding of autonomy as freedom of the will (Immanual Kant) and freedom of action (John Stuart Mill). Kant argued in his Groundwork of Metaphysics of Morals (1785) that persons should always treat each other as autonomous ends and never merely as means to the end of the other. On the other hand, Mill was more concerned about the moral autonomy of action and thought in the individual. F o r Mill, social and political control over an individual's actions is legitimate only if it is necessary to prevent harm to other individuals.

29

McCullough, Virtues, Etiquette, and Anglo-American Medical Ethics in the Eighteenth teenth Centuries, in VIRTUE AND MEDICINE 81-92 (E. Shelp ed. 1985).

and Nine-


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tient's interest is the proper goal of the physician's actions, Percival recognized the dependence of patients on physicians for their own well-being. This dependence included, among other things, silent submission to the authority of the physician in the physician-patient relationship.30 This meant, for example, that in a given case, the patient's right to truthful disclosure of illness and/or treatment options could be suspended where the physician had deemed it detrimental to the patient's health. The present rule of therapeutic privilege accorded physicians by the courts is based on this premise.31 Percival's work on medical ethics served as the model for the American Medical Association's first code of ethics, which became the living creed of professional conduct in the United States.32 In general, medicine became concerned about the needs of patients, particularly for skillful professional treatment, but it took no steps to recognize the patient's rights supported by the principle of autonomy. It was not until the health rights movement in the 1970s that the authority of physicians was significantly replaced by a penumbra of patient's rights. The new health rights movement went far beyond traditional demands for more medical care and questioned the distribution of power and expertise.33 In addition, there was an increased tendency of the courts to view the physician-patient relationship as a partnership, with final authority over treatment resting with the patient.34 This shift plays an impor30 31

32 33

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Id. at 86-87. Id. Until the advent of a mature informed consent rule, medicine based its right to withhold truth from the patient on Percival's argument. Percival states: To a patient, therefore, perhaps the father of a numerous family, o r one whose life is of the highest importance to the community, who makes inquiries which, if faithfully answered might prove fatal to him, it would be a gross and unfeeling wrong to reveal the truth. His right to it is suspended, and even annihilated because, its beneficial nature being revered, it would be deeply injurious to himself, his family, and to the public. T. PERCIVAL, MEDICAL ETHICS 82 (1803). The present rule of therapeutic privilege accorded to physicians by some courts is based on Percival's admonitions. This rule permits physicians to refrain from disclosing certain information to patients if the disclosure will have a serious adverse impact on the patient's health. McCullough, supra note 2 9 , at 8 8 . P. STARR, T H E SOCIAL TRANSFORMATION OF AMERICAN MEDICINE (1982). Starr correctly observes

that medical care figured prominently in the generalization of rights and in new movements specifically aimed at improving " t h e rights of the handicapped, the mentally ill, the retarded, and the subjects of medical research." Id. at 393. Health care became a matter of right and hence demand became the "spirit of the time." Id. See Natanson v . Kline, 186 Kan. 393, 350 P.2d 1093 (1960); Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.), cert., denied, 409 U . S . 1064 (1972). T h e right that every patient has to decide what treatment to accept or reject, and what is to be done with his or her body, did not directly arise from either the Declaration of Independence or the United States Constitution, but rather, from the common law. In Schloendorff v. N e w York Hospital, 211 N.Y. 125, 105 N . E . 92 (1914), Justice Cardozo made it clear that a competent adult has a common-law right to decide what medical treatment to undergo. Implicit in this right, is the right to decide whether to live or die because the


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tant role in the current reluctance of physicians to unilaterally exercise responsibility for some decisions that clearly lie in areas of medical expertise. The right of the autonomous adult patient to information and the right to choose treatment options received support from the courts in a series of landmark cases, after which, Percival's Medical Ethics passed into history.35 The courts focused on the importance of disclosure for effective decision-making, establishing that it was the physician's duty to disclose facts necessary for the patient's free and informed consent by invoking the principle of self-determination.36 It is important to note that although disclosure became a rule in conjunction with the emerging rights of patients, it was limited to the medical options available. This limitation is essential in maintaining the professional integrity of physicians and their autonomous right to determine what is appropriate medical treatment for the patient. As part of the doctrine of informed consent, the disclosure rule is generally justified by the moral principle of respect for autonomy.37 However, when viewed in the legal context, informed consent is not precisely about how best to respect autonomy or to enable autonomous decision-making.38 Legal language, for the most part, is oriented more toward specific (correlative) rights and duties that are derived from principles than toward the principles themselves.39 In case law, the justification for informed consent is couched in rights language focusing on patient's rights, such as the patient's right to self-determination. This right, along with the physician's fiduciary duty to the patient, restricts the physician's role and protects the patient from unwarranted intrusions such as surgery without consent.40

decision to accept treatment can result in the continuation of life and the decision to reject treatment can lead to death. The statutory and case law of most jurisdictions reflects each state's interest on this subject and, generally, supports the right of a competent adult to make decisions concerning his or her body by imposing civil liability on health care providers who perform medical treatment without the patient's consent, even in situations where the treatment is beneficial or essential to preserve the patient's life. See In re Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266, cert, denied, 454 U . S . 858 (1981). The Storar court emphasized that, in New York, there is no statute prohibiting a patient from declining necessary medical treatment or prohibiting a physician from honoring that decision. 35

36

37 38 39 40

See, e.g., Salgo v. Leland Stanford Jr. University Bd. of Trustees, 154 Cal. App. 2d 574, 317 P.2d 170 (1957); Natanson v. Kline, 186 Kan. 3 9 3 , 350 P.2d 1093 (1960); Wilkinson v . Vesey, 110 R.I. 606, 295 A.2d 676 (1972). See Salgo, 317 P.2d at 170 (expanding the concept of consent to medical treatment by requiring it be "informed"). See R. FADEN & T. BEAUCHAMP, supra note 2 1 , at 2 4 . Id. at 24-25. Id. at 2 5 . J. K I N G , T H E LAW OF M E D I C A L MALPRACTICE 157 (1977).

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B. The Right to Privacy While the informed consent doctrine and the idea of patient selfdetermination is founded on common law, the constitutional right of privacy also serves to protect individual autonomy; it has been invoked to prevent governmental interference with various areas of personal health care decision-making, ranging from abortion to treatment refusal.41 Although unwritten, the constitutional right of privacy that the United States Supreme Court found in the penumbra of the specific guarantees contained in the fifth and ninth amendments to the United States Constitution, is based on our society's regard for human dignity and self-determination.42 This constitutional right has been found to support a patient's right to privacy against unwarranted infringements of bodily integrity43 but does not give a patient any right to demand or to expect to receive futile care. It is not clear, however, if an individual holds the right of privacy, like other constitutional rights, only against the state and against parties acting on behalf of the state—or against other individuals or nongovernmental enti.

44

ties. In Whalen v. Roe,*5 the Supreme Court acknowledged that the right of privacy protects an "interest in independence in making certain kinds of 41

42

R. FADEN & T. BEAUCHAMP, supra note 2 1 , at 40. The authors cite that, historically, the earliest experience of the privacy right was derived from two common-law doctrines—libel and copyright law—and not from the Constitution. See also Prosser, Privacy, 48 C A L . L. REV. 383 (1960). The principle of self-determination that encompasses an individual's right to control his or her body is subject to certain governmental interests. See, e.g., Roe v. Wade, 410 U . S . 113 (1973) (abortion); Griswold v. Connecticut, 381 U . S . 479 (1965) (contraceptives). Griswold, 381 U . S . at 484. The Court's decisions recognize a federal right to control fundamental medical decisions and reflect a concern for an individual's dignity in maintaining bodily integrity. See also Cruzan v. Director, Missouri Department of Health, 110 S. Ct. 2841 (1990); Gray v. Romeo, 697 F. Supp. 580, 585 (D.R.I. 1988) (citing Winston v. Lee, 470 U . S . 753 (1985) (a criminal defendant cannot be compelled to submit to surgery); Rochin v. California, 342 U . S . 165 (1952) (forced stomach pumping of accused is "offensive to human dignity")).

43

Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 4 1 7 , 429 (1977) (court approved guardian ad litem's request that 67-year-old mentally retarded patient with acute myeloblastic monocytic leukemia not be treated with chemotherapy based on the patient's rights under the doctrine of informed consent and the constitutional right of privacy, as expressed under the principle of substituted judgment).

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The question of whether there is a constitutional right to refuse life-supporting treatment based on the right to privacy was before the Supreme Court in the case of Cruzan v. Director, Missouri Department of Health, 110 S. Ct. 2841 (1990). The Supreme Court declined to expand the privacy doctrine beyond reproductive decision-making but decided for the first time that competent adult patients have a constitutionally protected "liberty interest" in refusing unwanted medical treatment. Some state courts have held that a patient's right to refuse life-supporting treatment may be based on the privacy guarantees of a state constitution. See, e.g., In re Grant, 109 Wash. 2d 545, 747 P.2d 4 4 5 , 449 n . 1 , modified 757 P.2d 534 (1988); In re Farrell, 529 A.2d 404 (N.I. 1987); In re Jobes, 529 A.2d 434 (N.J. 1987); Bouvia v. Superior Court, 225 Cal. Rptr. 297 (Cal. App. 1986). See also Rubenfeld, The Right to Privacy, 102 HARV. L. REV. 737 (1989).

45

429 U . S . 589, 599-600 (1977).


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important decisions." However, in the recent case of Cruzan v. Director, Missouri Department of Public Health,*6 the Supreme Court declined to expand the constitutional right to privacy to treatment decisions, deciding instead for the first time that competent patients have a constitutionally protected "liberty interest" in refusing unwanted medical treatment. The Court based its decision on the right of liberty, rather than the common-law right of self-determination, or the more nebulous constitutional right of privacy. Decisions regarding medical treatment specifically have been acknowledged by some lower courts as falling within the privacy category. These courts rely heavily on the right of privacy in embracing the idea of the competent patient's right to make medical decisions.47 This right of privacy, however, like the rule of disclosure, is not absolute in any sense and does not grant to the patient the right to demand from the physician any and all medical services and treatments, including those that are not feasible.48 The exercise of this privacy right by a patient is subject to and limited by certain state interests. The rationale, which the courts have relied on in analyzing these interests, is helpful to the question of a patient's right to futile treatment. In Superintendent of Belchertown v. Saikewicz,*9 the Massachusetts Supreme Court reviewed numerous cases involving the issue of a patient's right to refuse medical treatment and concluded that the cases indicate the existence of a relatively concise delineation of countervailing state interests. The court concluded that the state has a claimed interest in: "(1) the preservation of life; (2) the protection of the interests of innocent third parties; (3) the prevention of suicide; and, (4) maintaining the ethical integrity of the medical profession."50 46

47

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110 S. Ct. 2841 (1990). Accord McKay v. Bergstedt, 801 P.2d 617, 622 (Nev. 1990) (the right of a 31-year-old competent quadriplegic to have his respirator disconnected was based on his liberty interest under the federal and Nevada constitutions and did not derive from a privacy right under either constitution). See, e.g., In re Browning, 568 So. 2d 4 (Fla. 1990); Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d 674 (1987); Brophy v. New England Sinai Hospital, Inc., 398 Mass. 4 1 7 , 497 N.E.2d 626 (1986); In re Conroy, 98 N.J. 3 2 1 , 486 A.2d 1209 (1985); In re Hamlin, 102 Wash. 2d 810, 689 P.2d 1372 (1984). Brett & McCuIlough, supra note 2, at 1348. For example, a physician is not obligated to offer cancer patients laetrile, algae, or ginseng tea. 373 Mass. 7 2 8 , 370 N . E . 2 d 417 (1977). Id. at 425. Cf. In re Conroy, 98 N.J. 3 2 1 , 486 A.2d 1209 (1985) (questioning whether the state's interest in the preservation of suicide is a distinct interest worthy of separate consideration since it is encompassed within the state's more basic interest in preserving life); McKay v. Bergstedt, 801 P.2d 617, 628 (Nev. 1990) (the court established a fifth state interest in encouraging the charitable and humane care of afflicted persons, which interest is shown by public policy and legislation that encourages providing care, treatment, opportunities, and facilities for persons with disabilities and is indicative of " a society attuned to the worth of an individual irrespective of physical or mental handicap").


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The Massachusetts Supreme Court stated that the preservation of human life is the most significant of those state interests.51 In attempting to balance the state's interests in the preservation of life against the patient's common-law and constitutional right to refuse medical treatment, courts have focused primarily on the invasiveness of the medical treatment and the extent to which it increases the patient's chances of living.52 The reasoning adopted by many courts deciding these cases supports the argument that a patient has no right to receive futile treatment and a physician no duty to provide it. In Saikewicz, the patient was a 67-year-old man who was profoundly mentally retarded and who had been institutionalized most of his life. He was diagnosed as having acute myeloblastic monocytic leukemia. In 30% to 50% of the cases receiving chemotherapy treatment, such leukemia would go into remission for between two and 13 months. Without treatment, the patient was expected to live for only a matter of weeks or perhaps several months. In discussing one of the factors that should be considered in termination of treatment cases, the court distinguished between life-prolonging treatment and life-saving treatment.53 Saikewicz illustrates how the patient's rights change with the effectiveness of treatment. The state's interest in preserving life increases when life-saving treatment is available and decreases as the efficacy of treatment wanes and is life-prolonging and not life-saving. Conversely, the patient's

51

52

53

Saikewicz, 370 N.E.2d at 425. See McKay, 801 P.2d at 622 (this interest is both fundamental and compelling and constitutes a basic purpose for which governments are formed); In re Spring, 380 Mass. 629, 405 N.E.2d 115, 119 (1990) (observing that the prevention of suicide may be the least significant of the state's interests and is certainly the least discussed by courts). Prevention of suicide also was briefly discussed in John F. Kennedy Memorial Hospital v. Heston, 58 N . J . 5 7 6 , 279 A . 2 d 670 (1971), where the court noted that suicide is seldom prosecuted even though it is a crime. The court concluded that, "there is no constitutional right to choose to die," and that police officers and others who put themselves at great risk to rescue those attempting suicide should not be subject to civil liability because, by saving someone from suicide, they violated the individual's constitutional rights. Id. at 672. Saikewicz, 370 N.E.2d at 425. See also In re Grant, 109 Wash. 2d 5 4 5 , 747 P.2d 445 (1987), modified 757 P.2d 534 (1988); In re Farrell, 108 N . J . 335, 529 A . 2 d 404 (1987); Brophy v . New England Sinai Hospital, Inc., 398 Mass. 728, 370 N.E.2d 626 (1986); Foody v. Manchester Memorial Hospital, 4 0 Conn. Supp. 127, 482 A.2d 713 (1984). But cf. Fosmire v . Nicoleau, 75 N.Y.2d 2 1 8 , 551 N.E.2d 7 7 , 82 (1990) (granting competent adult patient the right to refuse blood transfusions that were necessary to save patient's life, and rejecting hospital's argument that the state's interest in preserving life is stronger and should prevail over the patient's wishes when the medical treatment will completely restore the patient's health). Saikewicz, 370 N.E.2d at 425-27. Because there was no life-saving treatment available for Mr. Saikewicz's leukemia, the court only needed to consider his right to refuse life-prolonging treatment. However, the court noted that a state has an interest of "considerable magnitude" in protecting third parties, "particularly minor children, from the emotional and financial damage which may occur as a result of the decision of a competent adult to refuse life-saving or life-prolonging treatment." Id. at 4 2 6 .


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right to refuse treatment is most pronounced when it is only lifeprolonging. The Massachusetts Supreme Court emphasized this factor again in the case of In re Spring?4 where the patient was a 55-year-old man suffering from end-stage kidney disease, which required hemodialysis treatment five hours a day, three days a week. He also suffered from chronic organic brain syndrome. While the dialysis was not life-saving, he would die without it and could survive for up to five years with the treatment. In ruling that termination of treatment was appropriate, the court emphasized that the treatment was life-prolonging and not life-saving and that there was no prospect of a cure nor any evidence that the patient would regain competence.55 An underlying rationale of Saikewicz and In re Spring, that a patient's rights change with the efficacy of treatment, provides the basis for the concept that a patient does not have the right to demand futile care. A patient's rights change as treatment moves down a continuum from lifesaving to life-prolonging to futile. C. Distinguishing Ordinary Treatment from Extraordinary The Saikewicz court noted that physicians now have greater control over the time and nature of a patient's death. Adopting a framework of medical ethics, the court acknowledged that technological advances in medicine have made it difficult for physicians to determine when they are acting in the best interests of the patient. Physicians have come to realize that, in many cases, "extraordinary" treatment only prolongs life, and has the effect of prolonging the patient's suffering, isolating the family from the patient and having an adverse economic effect on the family.56 Some courts have distinguished between ordinary and extraordinary treatment and, as a result of making that distinction, have required patients to submit to ordinary treatment (for example, blood transfusions), but have 54 55

56

380 Mass. 629, 405 N.E.2d 115 (1980). Id. at 120. See also Satz v. Perlmutter, 360 So. 2d 160 (Fla. App. 1978), aff'd, 379 So. 2d 359 (Fla. 1980). In analyzing the state's interest in preserving life, the court noted that the patient's condition was terminal, his situation wretched, and the continuation of his life temporary and totally artificial. Consequently, the state's interest did not outweigh the patient's right to refuse treatment. Id. at 162. Cf. Quackenbush, 383 A.2d at 788. Although the court equated " d i m prognosis" with a situation in which there is no treatment that will return the patient to a cognitive sapient life, it turned down the hospital's petition for the appointment of a guardian for a 72-yearold man who refused to allow the amputation of his gangrenous legs, pointing out that the amputation of both legs is a significant bodily invasion justifying the patient's right of privacy to decide his future even though the prognosis of surgery was very good and that the patient's refusal would result in his death. Id. at 789. Saikewicz,

370 N.E.2d at 423.


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allowed them to refuse extraordinary treatment. The distinction between "ordinary" and "extraordinary" medical treatment discussed in certain "right-to-die" cases illustrates judicial acknowledgment that rights change along a continuum of treatment—a continuum that has futile treatment on one end and successful treatment on the other. In the case of In re Severns,51 the court pointed out that while there is a medical recognition of the right of a sapient and sentient patient to refuse extraordinary medical treatment, the distinction between ordinary and extraordinary treatment becomes blurred when the patient is in a nonreversible vegetative state. The distinction is blurred by the fact that there is no medical treatment that can return the patient to a sentient and sapient state.58 Ms. Severns, a 55-year-old woman, was not on a respirator, had some response to stimuli, was fed through a nasogastric tube, did not suffer discomfort or feel pain (according to medical testimony), and was not a sentient and sapient human being. The court determined that it would be her wish not to be kept alive in such a vegetative state and noted that medical treatment could do no more for her. There was no available treatment that could restore the damage to her brain. The court entered an order that the patient not be put on a ventilator and not receive a tracheal tube nor any drugs or medicine, not even antibiotics, since they would not cure the patient or return her to a cognitive and sapient condition.59 The prognosis that treatment will be successful, rather than futile, is an important aspect of a patient's right. The state's interest in preserving life weakens and the patient's right of privacy increases as the degree of bodily invasion of the treatment increases and the prognosis dims.60 The state's interest in the preservation of life has justified court ordered medical treatment where routine treatment would permit an otherwise dying patient to lead a relatively normal healthy life. This has been particularly true in cases involving blood transfusions.61 Most cases characterize the state's interests as being determined by the patient's prognosis.62

57

58 59 60

61

62

425 A.2d 156 (Del. Ch. 1980). But cf. Fosmire v. Nicoleau, 75 N.Y.2d 218, 551 N . E . 2 d 77 (1990) (competent adult patient has a common-law right to refuse blood transfusions necessary to save the patient's life). Severns. 425 A.2d at 159. Id. at 160. The court did allow the administration of drugs necessary for personal hygiene. Foody, 482 A.2d at 7 1 8 . Cf. Brophy v. New England Sinai Hospital, Inc., 398 Mass. 417, 497 N.E.2d 626, 635 (1988) (state's concern in the preservation of life normally involves an interest in the prolongation of life. This interest is highest when the affliction is curable and life can be saved and decreases when the affliction is incurable and would soon cause death regardless of any medical treatment). Foody, 482 A.2d at 718 (see cases cited therein). Contra Fosmire v. Nicoleau, 75 N.Y.2d 218, 551 N . E . 2 d 77 (1990). Id. (citing In re Conroy, 98 N.J. 3 2 1 , 486 A.2d 1209 (1985)).


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Foody v. Manchester Memorial Hospital?1 involved a 42-year-old woman who, because of her progressively severe multiple sclerosis, suffered respiratory arrest. After being resuscitated in the emergency room of a hospital, she was still semicomatose, required a respirator, a lung cleaning suction catheter, a nasogastric feeding tube, drugs to control brain seizures, and continuous nursing care. The prognosis for her improvement was considered hopeless and it was estimated that she would die within ten minutes should her respirator be disconnected. Although the patient had never expressed a view on whether she would want to be kept alive under the present circumstances, her parents sought a court order authorizing the respirator to be disconnected. The court granted the parents' request based on the fact that the patient's condition was permanent and irreversible, as determined by her attending physician and two consulting physicians, and because there were concerned family members who in good faith wanted to exercise the patient's right to discontinue artificial life-support systems through substituted decisionmaking.64 The court acknowledged that an individual has a strong interest in rejecting the traumatic cost of having life merely prolonged. In assessing the patient's interest, consideration must be given to the nature of the treatment together with the usefulness or benefits of the treatment. Assessing whether the serious burdens of treatment are worth enduring will depend on how long the treatment will extend life and under what conditions.65 One might view the cases that link a patient's right to refuse treatment to the efficacy of treatment as supportive of the notion that a patient has a right to futile treatment. After all, if the patient's right of privacy increases as the treatment prognosis dims, then should not the patient's right to control the treatment decision be most compelling when the treatment will be futile? The ordinary-extraordinary distinction discussed in these cases, however, deals solely with the issue of whether and under what circumstances a patient has a right to decline life-sustaining or life-prolonging treatment. The cases have focused only on the patient's right of privacy and the circumstances under which this right allows a patient to refuse treatment that constitutes an invasion of bodily integrity. 63 64

65

40 Conn. Supp. 127, 482 A.2d 713 (1984). Id. at 7 2 1 . The court noted that the patient, who had lived with her parents, had no material estate, that her medical expenses would continue to be covered by third party payors, and that her family therefore had no financial interest in the outcome of the proceeding. Id. at 717. Id. at 718-19. Cf. In re Quackenbush, 156 N . J . Super. 282, 383 A.2d 785 (1978) (citing Quinlan for the proposition that there need be a combination of significant bodily invasion and a poor prognosis before the patient's right of privacy overcomes the state's interest in the preservation of life).


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In Brophy v. New England Sinai Hospital, Inc. ,** the Massachusetts Supreme Court cautioned that this distinction between ordinary and extraordinary treatment should not become the sole or even the major factor used to decide these cases. There, the patient could not swallow, required a feeding tube, and could live with the use of the tube for many years. The court saw the case as an example of a situation in which the distinction is meaningless since to be maintained by artificial, albeit ordinary means, for so long was not only intrusive but extraordinary.67 Some courts have downplayed the distinction precisely because it focuses primarily on the invasiveness of the treatment, preferring instead to base a decision on whether the treatment is proportionate or disproportionate in terms of the benefits to be gained and the burdens caused.68 Proportionate treatment has a reasonable chance of providing benefits to the patient that outweigh the burdens associated with the treatment. A treatment that is extremely painful or intrusive still would be proportionate treatment if the prognosis was for a significant improvement in the patient's condition. Conversely, treatment that is only minimally painful or intrusive may be considered disproportionate to the potential benefits if the prognosis for any significant improvement in the patient's condition is virtually nonexistent.69 D. Rights of the Incompetent Patient The fact that an unconscious or otherwise incompetent patient is unable to express a decision of whether to accept or reject treatment cannot be used to deny that patient the ability to exercise that right. This is so because to deny the patient the ability to exercise the right would deny the right itself. Consequently, there should be no difference in balancing the state's interests against the interests of an incompetent patient, as compared to the interests of a competent patient, for the state must afford the incompetent patient the same panoply of rights and choices to which the competent patient is entitled.70 The substantive rights of the competent and incompetent patient are the same with respect to the right to decline life-prolonging treatment. The distinction between the two types of patients 66 67 68

69 70

398 Mass. 417, 497 N.E.2d 626 (1986). Id. at 637. Barber v. Superior Court, 147 Cal. App. 3d 1006, 195 Cal. Rptr. 484, 491 (1983). The ordinaryextraordinary distinction also has been criticized as a semantical milieu that does not help in analyzing whether the patient has the right to refuse treatment. Because the distinction has not been applied consistently or with precision, the terms " o r d i n a r y " and "extraordinary" have assumed many conflicting meanings. In many situations, labeling a particular treatment as either ordinary or extraordinary is a conclusion reached after the treatment decision is made rather than a justification of the treatment itself. See also In re Conroy, 98 N . J . 3 2 1 , 486 A.2d 1209, 1234-35 (1985). Barber, 195 Cal. Rptr. at 4 9 1 . Foody, 482 A.2d at 718.


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lies solely in the area of how the state should approach the preservation and implementation of the rights of an incompetent patient and in the procedures necessary to accomplish that objective process. The right to refuse treatment under certain circumstances extends to competent and incompetent patients equally, because the value of human dignity extends to both.71 The analysis of a patient's right discussed above applies equally to and is not changed by the fact that the patient is unconscious or otherwise incompetent. For this reason, the thesis of this article, that a patient does not have a right to futile treatment, is not changed by whether the patient is competent or incompetent. As a practical matter in many cases, at the time treatment becomes futile, and when the physician should enter a DNR order, the patient's condition will have deteriorated to such an extent that the patient almost always will be incompetent. E. Patient Autonomy and Defensive Medicine The physician today is faced with two competing moral principles that the law does not always take into account, or clearly distinguish, in assessing physician responsibilities in the decision-making process. The first of these principles, that of autonomy, imposes on the physician the obligation of respect for the patient's self-determination.72 Its counterpart at law is the doctrine of informed consent. The second principle, beneficence, undergirds the physician's duty to treat with due care. It requires that the physician act to maximize benefits even if it might appear to be contrary to the patient's wishes in some cases.73 Both of these principles, although ambiguous at times, define the role and obligations of the physician within the decision-making process. The physician, thus, must recognize what areas of the process are reserved to the patient and what areas are reserved to the physician. It is only in the latter area that a physician is permitted to act without the patient's consent. Many thinkers today, who once proposed the primacy of autonomy over paternalism, lately have come to see that no simple principle can

71

Saikewicz, 370 N.E.2d at 423. See also John F. Kennedy Memorial Hospital, Inc. v. Bludworth, 452 So. 2d 921 (Fla. 1984) (comatose or incompetent terminally ill patients have the same constitutional right to refuse extraordinary treatment as competent terminally ill patients). But cf. In re Longeway, 133 Ill. 2d 3 3 , 549 N.E.2d 292 (1989) (an incompetent patient does not have the right to refuse artificial sustenance unless the patient is terminally ill); Couture v. Couture, 48 Ohio App. 3d 208, 549 N.E.2d 5 7 1 , 575-76 (1989) (notwithstanding evidence that adult patient had previously stated that he would not want to be kept alive by a feeding tube and that withdrawal of feeding tube was consistent with the substituted judgment of patient's mother acting as court appointed guardian, withdrawal of feeding tube is prohibited by public policy expressed in statute regulating durable power of attorney for health care unless death of patient is "imminent").

72

R. FADEN & T. BEAUCHAMP, supra note 2 1 , at 7. See Brown v. Essex County, 461 N.Y.S.2d 959, 533 A.2d 648 (1980).

73


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•

131

predominate so absolutely in health care ethics.74 The courts, however, have been reluctant to back away from the authority assigned to autonomy in the decision-making process.75 The ambiguous understanding of this authority, however, has resulted in many physicians transferring to the patient responsibilities in the decision-making process that are clearly those reserved to the physician. One major reason for this transfer is the current paralysis gripping most physicians and hospitals because of the fear of lawsuits. Judgments that should be made from the side of medical expertise are being passed by overly cautious physicians to patients who possess little or no medical knowledge. Without question, physicians in all specialties practice in an intensely litigious environment that appears to offer little room for beneficent actions and unilateral decisions on the part of physicians. What has developed is the "epiphenomenon of defensive medicine"—the management of a patient's care not only with an eye for the patient's welfare but also with an effort to fashion preemptively an unassailable record in anticipation of possible future malpractice litigation.76 Included within this practice is the highly questionable extension of the disclosure rule to embrace a host of judgments that should fall exclusively to the physician.77 Defensive medicine has altered the practice of medicine to such an extent that physicians are content to relinquish many medical judgments to the demands of the autonomous patient. Among these judgments are patient's preferences to receive treatments that are of no medical benefit. Allowing a patient the prerogative of making these sorts of judgments is a serious mistake that, in the long run, may expose the physician to liability-78 A physician is responsible for all diagnostic and prognostic judgments relative to patient care, including the methodologies employed to arrive at those judgments. The physician also is charged, under the prevailing standard of care, with the duty to ascertain any and all treatment options that

74

E. PELLEGRINO & D . THOMASMA, F O R THE PATIENT'S G O O D 35 (1988).

75

Truman v. Thomas, 165 Cal. Rptr. 308, 611 P.2d 902 (1980) (the court permitted the children of a woman who died from cervical cancer to sue her physician for failing to disclose the risks of not undergoing the Pap smear test, which she had repeatedly refused).

76

See Marsh, Health Care Cost Containment and the Duty to Treat, 7 J. LEGAL M E D . 157 (1985). See Tomlinson & Brody, supra note 13, at 44. The authors argue that the President's Commission is wrong in claiming, with regard to all resuscitation decisions, that "the great weight accorded to competent patients' self-determination means that attending physicians have a duty to ascertain patients' preferences." The right of self-determination, including the patient's preferences, is irrelevant to a determination that resuscitation would be of no medical benefit.

77

78

Ironically, the physician who yields to a patient's preference for futile CPR out of fear of malpractice when it should not have been employed, may unwittingly be exposed to liability for the cost of that care. Liability also may be imposed for extending suffering should the patient be a temporary survivor. See infra text accompanying notes 184-225.

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might be available to offer to the patient. While these options must be disclosed to the patient, it is the exclusive responsibility of the treating physician to determine what medical treatment is medically beneficial and what would be of no demonstrable benefit. Both the fiduciary duties of the physician and the dictates of the doctrine of informed consent preclude any obligations on behalf of physicians to determine patients' preferences with respect to futile treatment.79


F. Informed Consent and Futile Care While the concept of "patient rights" is supported by several important ethical and legal principles, the doctrine that best serves the patient's right of self-determination is that of informed consent.80 This principle is rooted firmly in the fundamental recognition that competent adults are entitled to accept or reject health care interventions on the basis of their own personal goals.81 The fundamental values that informed consent is intended to promote—patient self-determination and patient well-being—dictate that patients should have access to the information they need to help them understand their condition and make treatment decisions.82 It is this disclosure requirement, as well as the patient's right to participate in all treatment decisions, that arguably confront any unilateral attempt by a physician to enter a DNR order. If we accept this fact as being applicable in every case situation, then CPR and DNR orders always must be viewed as feasible options (which is certainly not always the case) and hence, must fall within the scope of the disclosure obligation. A patient's election of CPR would require the physician to do everything possible to save the patient, including mechanical ventilation, cardiac massage, and administration of powerful drugs to stimulate the heart, despite the fact that further treatment may be of little or no benefit.83 Under this scenario, decisions regarding the desirability of further treatment are removed from the realm of medical judgment and posited exclusively with the patient and/ or the patient's family. This article contends, however, that when the treating physician has determined that resuscitation attempts would be futile, consent of the patient and/or the patient's family is not necessary before the physician enters

79

80

Moss, supra note 5 , at 354. See also Stanley, The Appleton Consensus, 15 J. M E D . ETHICS 129, 132 (1989). " A treatment that cannot reasonably be expected to achieve even its physiological objective is physiologically futile and need not be offered nor provided if requested." PRESIDENT'S COMMISSION REPORT, supra

note 2 7 , at 6 4 - 6 5 . See also P R E S I D E N T S COMMISSION FOR

THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND BEHAVIORAL RESEARCH, DECIDING TO FOREGO L I F E SUSTAINING TREATMENT 26-27, 43-44 (1982). 81 82 83

PRESIDENT'S COMMISSION REPORT, supra note 80, at 43-44. Id. at 26-27. See A . M E Y E R S , MEDICO-LEGAL IMPLICATIONS O F DEATH AND DYING § 8.12 (Supp. 1986).

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a DNR order. The fact that CPR has been judged to be medically inappropriate provides a clear exception to the disclosure rule and invalidates the argument that a DNR order should not be issued unless the physician first obtains the informed consent of the patient and/or family.


1. The Disclosure Principle Analytically, the subject of patient consent falls roughly into two categories: (1) the manner in which a person demonstrates consent and the extent of that consent; and, (2) the quality of the consent, that is, whether or not it was informed.84 Under the second category, the concept "informed" is tied directly to "quality of patient care," not the consent feature. It is the latter category that raises some difficult questions regarding disclosure of DNR orders to the patient. Does the physician's duty to disclose pertinent information about alternative courses of treatment include DNR orders? Is a procedure that would offer no therapeutic benefit to the patient a proper subject for the disclosure rule? To begin with, any consideration of the content of the information to be disclosed must focus on the nature of the physician's duty to the patient and what specific judgment areas are exclusively reserved to the physician. Two general views exist in law that define the nature and scope of the physician's duty to disclose information to a patient when obtaining informed consent.85 These views have been amply reviewed and commented on in the literature and, therefore, are not set forth in full here.86 What is still believed to be the majority view obligates a physician to disclose only the information that a reasonably prudent physician would disclose in similar situations.87 The second view, which is known as the "reasonable patient" rule, focuses solely on the information a "reasonable patient" would want to know to make a decision.88 Depending on the particular jurisdiction involved, these two views provide the standard of care expected of physicians in obtaining informed consent to treatment from a patient.89 The main contention here is that, under certain circumstances, there is an exception to existing disclosure obligations under either of these standards that would allow for a DNR order to be entered by the physician 84

Marsh, Informed Consent and the Elderly Patient, 2 CLINICS GER. M E D . 501 (1986). See also T. BEAUCHAMP & J. CHILDRESS, PRINCIPLES O F BIOMEDICAL ETHICS 70 (3d ed. 1989).

85

86

87 88

89

King, In Search of a Standard of Care for the Medical Practice: The Accepted Practice Formula, 28 VAND. L . REV. 1213, 1227-34 (1975). See, e.g., Blumstein, Rationing of Medical Resources: A Constitutional, Legal, and Policy Analysis, 5 9 T E X . L. REV. 1345 (1981); King, supra note 8 5 , at 1228. Natanson, 350 P.2d at 1098. Canterbury v . Spence, 464 F.2d 772 ( D . C . Cir. 1972), cert. denied, 409 U . S . 1064 (1972); Largey v. Rothman, 110 N.J. 204, 540 A.2d 504 (1988); Cobbs v. Grant, 104 Cal. Rptr. 505, 502 P.2d 1 (1972). J. KING, supra note 4 0 , at 154; King, supra note 8 5 , at 1228.


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without the consent of the patient. This exception is based on the premise that a decision by a physician that CPR is unjustified because it is futile, is a judgment that falls entirely within the physician's technical expertise. Accordingly, the physician is not obligated to ascertain the patient's preferences.90 Before the informed consent rule can be invoked in any given case, two criteria must be satisfied: (1) the physician must determine the nature and extent of medical care that is required to manage the patient's condition; and, (2) a "right to treatment" must exist.91 These two conditions are so interwoven that the existence of a patient's right to treatment is dependent upon the physician's determination that specific medical services are necessary for treatment of the patient's underlying illness. Once a physician-patient relationship has been established, the duties of the physician are set forth on the basis of a pre-common-law ethical code of conduct: "I will use treatment to help the sick according to my ability and judgment, but never with a view to injury and wrong-doing. Neither will I administer a poison to anybody when asked to do so, nor will I suggest such a course."92 A derivative of this pre-common-law code of conduct is the legal duty of the physician to inform the patient of his or her condition and of the diagnosis.93 Inherent in the requirement that a physician make reasonable treatment decisions in the course of managing the patient's condition is the duty not to subject the patient to unnecessary treatment.94 Unfortunately, there is no consensus as to the definition of "necessary services." Ordinarily, an attending physician is given great latitude to choose what medical care is required to manage the patient's condition.95 In this regard, an important point is that the patient simply cannot determine the services to which he or she is entitled or that the treating physician must provide. In this respect, the physician may be viewed as having the obligation to certify precisely which medical services are needed by the patient.96

90

Tomlinson & Brody, supra note 13, at 4 5 .

91

See

92

Selections from the Hippocratic Corpus, in ETHICS IN MEDICINE 5 (S. Reiser, A. Dyck, & W. Curran 2d ed. 1977). Dowling v. Mutual Ins. Co. of N.Y., 168 So. 2d 107 (La. App. 1974) (court held that the defendant doctor owed the patient a duty to inform the patient to have further x-ray exams within the time recommended by a radiologist because of the radiologist's suggestion that the patient's initial x-rays indicated a very slight, old tuberculous infilteration). See also Goldberg v. Ruskin, 113 Ill. 2d 482, 449 N.E.2d 406 (1985). Dowling, 168 So. 2d at 107. Id. See also Tomlinson & Brody, supra note 13, at 4 4 . Tomlinson & Brody, supra note 13, at 4 4 . The authors suggest that a commonly accepted ethical principle is that physicians have no obligation to provide, and patients and their families have no right to demand, medical treatment that is of no demonstrable benefit. An imagined benefit

93

94 95 96

A. ROSOFF, INFORMED CONSENT: A G U I D E FOR HEALTH C A R E PROVIDERS (1984).


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The informed consent doctrine does not envelop a right to demand futile treatments. Consent of the patient is irrelevant in situations in which there is no course of treatment for which to secure consent.97 While a patient has every right to expect the physician to do everything possible for the patient's benefit, the physician is legally obligated only to preserve life by using the skills and means "ordinarily" employed by other physicians in similar cases.98 The physician is not legally obligated to exercise futile or "extraordinary" care and a failure to do so will not subject the physician to civil liability.99 It is the duty of the physician only to treat patients in conformity with professional medical standards that give rise to the patient's right to ordinary treatment, which right in turn includes informed consent.100 This duty of care does not extend to administering futile treatment because, in such a situation, no "ordinary" treatment choice exists on behalf of the patient, nor does a right to "extraordinary" treatment exist. In the development of the informed consent doctrine, the courts have focused on promoting the patient's well-being and protecting the patient's right of self-determination.101 This doctrine traditionally has required disclosure of enough information to allow the patient to make an informed decision.102 However, the doctrine has been limited to situations calling either for a decision to undergo treatment or refuse it.103 In a case involving a DNR order, the patient's consent would be required only where CPR might or would be of some benefit to the patient. Here the right to choose would exist. However, if all treatment alternatives, including CPR, are futile, the patient has no real choice, and there is no need for disclosure of

97

98

does not generate a right to receive treatment; otherwise patients would be entitled to demand and receive laetrile and other quack therapies from their physicians. It also may be argued that the right of privacy is not absolute. For example, there is no absolute right to abortion on demand. The same can be said of demands for X-rays, prescriptive medicine, and the like. Id. at 45. The situation described in the text is quite different from the case in which there is a medically accepted course of treatment, but the patient does not wish to be subjected to it. 61 A M . JUR. 2d Physicians, Surgeons and Other Healers § 205, at 337-38 (1989). See also A . HOLDER, MEDICAL MALPRACTICE LAW 58-59 (1978).

99

See Annotation, Discontinuation of Extraordinary Medical Care, 7 9 A.L.R.3D 2 3 7 , 2 4 4 , n. 10 (1977). Once a physician has determined that C P R would b e of n o medical benefit to the patient and therefore would be futile, the physician is under n o legal duty t o perform superhuman feats and attempt to rescue the patient w h o cannot be saved. See also Barber v. Superior Court, 147 Cal. A p p . 3d 1006, 195 C a l . Rptr. 4 8 4 (1983) (court held physician has n o duty to continue lifesustaining measures after cardiorespiratory arrest once it has become futile). 100 J. K I N G , supra note 4 0 , at 152. 101

PRESIDENT'S COMMISSION REPORT, supra

102

See Meisel, Toward an Informed Discussion of Informed Consent, 2 5 ARIZ. L . REV. 2 6 5 (1983). The informed consent doctrine ensures the disclosure o f information material to t h e medical decision-making process.

103

W. PROSSER & W. K E E T O N , T H E LAW O F TORTS § 3 2 , at 190 (5th e d . 1984).

note 2 7 , at 2 - 3 .

136

information.

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This position is supported by the landmark case of In re


Dinnerstein.105

In Dinnerstein, the Massachusetts appellate court was faced with an elderly patient who was hospitalized with Alzheimer's disease. The patient also suffered a paralyzing stroke, with compound complications from high blood pressure and arteriosclerosis. Her condition was considered hopeless by the treating physician, with death expected within a year. Accordingly, a DNR order was recommended. In upholding the legal propriety of the order, the court essentially held that because the patient's condition could not be reversed regardless of any therapy that could be provided, and because a physician's duty of care does not extend to administering futile treatment, there was no significant treatment choice to be made. What is important here is the critical connection between "futile treatment" and "no significant treatment choice."106 A significant treatment choice denotes that ordinary care is available, while futile treatment does not. If all treatment alternatives, including CPR, are futile, then the patient has "no significant treatment choice," and there is no need for disclosure of a DNR order. It is the physician's prognosis of futility that creates exclusivity separate from the traditionally recognized requirements of informed consent. That is, a DNR order based solely on a prognosis of futility is a medical decision separate and apart from those treatment decisions requiring informed consent. It would be ludicrous to suggest that futile administration of CPR provides a patient with a meaningful treatment choice under the doctrine of informed consent.107 Consent of the patient is irrelevant when there is no course of treatment for which to secure consent.108 A second justification for the contention that the physician has no duty to ascertain a patient's preferences before entering a DNR order where CPR would be of no medical benefit, is that once a judgment has been made that CPR is unjustified because it would be futile, both standards of care relative to information disclosure have been met by the physician. In applying the principle of informed consent, the law has tempered the patient's right of self-determination with respect for other values, which, in most cases, have been connected with promotion of the wellbeing of the patient.109 The concept of well-being in this context includes 104

J. K A T Z & A . C A P R O N , CATASTROPHIC D I S E A S E S : W H O D E O D E S W H A T ? 3 0 - 3 3 ( 1 9 7 5 ) .

105

6 Mass. App. 4 6 6 , 380 N . E . 2 d 134 (1978). Compare Dinnerstein. 3 8 0 N . E . 2 d at 134 with In re Spring, 3 8 0 Mass. 6 2 9 , 4 0 5 N . E . 2 d 115 (1980). M o s s , supra note 5 , at 354. Id. See also Tomlinson & Brody, supra note 13. Meisel, The Exceptions to the Informed Consent Doctrine: Striking a Balance Between Competing Values in Medical Decision Making, 1979 Wis. L . REV. 4 1 3 .

106

107 108


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the absence of harm that would result from subjecting the patient to futile treatment.110 As previously indicated, the "reasonable physician" approach requires a physician to disclose only such information that a reasonably prudent physician would disclose in similar situations.111 Under this view, a professional frame of reference is relied upon for ascertaining the content and extent of the disclosure. The rule of law is that information subject to disclosure pertains to treatment that is based on a medical assessment of the patient's interests and that a physician should reasonably recognize it to be material to the patient's decision."2 The second approach, which is in line with the case of Canterbury v. Spence,in is patient based. It focuses solely on the information a "reasonable patient" would want to know to make a decision.114 Under both approaches, the goal is to enable the patient to make an informed decision regarding whether to undergo a proposed course of treatment in light of likely benefits, material risks, and available alternatives. Typically, liability of the physician is based upon the materialization of certain inherent risks of the proposed procedures about which the patient should have been, but was not informed.115 2. The Reasonable Physician The reasonable physician approach to disclosure of information begins with the duty imposed on the physician to disclose to the patient the existence of any methods of treatment that would serve as a feasible alternative to the method initially selected to treat the patient's illness.116 A failure to inform a patient of alternative methods of treatment does not result in liability for medical malpractice when the existing alternative would not be appropriate for treating the patient's complaint."7 The law is

110

The question that arises in this situation is whether the disclosure principle is qualified by the very nature of the patient's illness and the medical treatment deemed appropriate for treating the illness? 111 See, e.g.. Fain v. Smith, 479 So. 2d 1150 (Ala. 1985); Hook v. Rothstein, 281 S.C. 541, 316 S.E.2d 690, writ denied, 283 S.C. 64, 320 S.E.2d 35 (1984); Cohen v. United States, 540 F. Supp. 1175 (D. Ariz. 1982). See also Natanson, 350 P.2d at 1098. 112 Moser v. Stallings, 387 N.W.2d 599 (Iowa 1986); Nichol v. Reagan, 208 N.J. Super. 644, 506 A.2d 805 (1986); Halley v. Birbiglia, 390 Mass. 540, 458 N.E.2d 710 (1983); Harnish v. Children's Hospital Medical Center, 387 Mass. 152, 439 N.E.2d 240 (1982). 113 464 F.2d 772 (D.C. Cir. 1972). 114 See Largey v. Rothman, 110 N.J. 204, 540 A.2d 504 (1988); Cobbs v. Grant, 8 Cal. 3d 229, 104 Cal. Rptr. 505, 502 P.2d 1 (1972); Wilkinson v. Vesey, 110 R.I. 606, 295 A.2d 676 (1972). 115 J. KING, supra note 40, at 152. 116 See Annotation, Medical Malpractice: liability for Failure of Physician to Inform Patient of Alternative Modes of Diagnosis or Treatment, 38 A.L.R.4TH 900 (1985). 117 Id.


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quite clear that a physician is under no duty to disclose alternative procedures that are not accepted as feasible."8 Under the reasonable physician standard, the treating physician is obligated to disclose information that a reasonably prudent physician would disclose in similar situations based on a medical assessment of the patient's interest."9 The dimensions of the disclosure extend to those available alternatives and the risks of the alternatives that the physician views as being reasonable in light of the patient's medical condition. If the reasonable physician would not consider an existing alternative, such as CPR, appropriate in the patient's case, it would not have to be disclosed.'20 Moreover, the term "reasonable" denotes an objective hypothetical physician whose clinical judgments are free from subjective constraints, interests, and pressures that cloud the decision-making process today, such as the tendency to practice defensive medicine, or the rigors of cost containment policies.121 The law does not require a physician to discuss in the abstract, all the courses of treatment precluded by the patient's condition; nor is the physician required to describe what might be done if the patient's condition were different.122 The question then becomes whether there are specific situations in which "a reasonable physician" would agree that CPR is not feasible and that a DNR order should be entered? The answer is obvious. This article has already set forth in detail various situations in which there exists a consensus of opinion regarding the futility of CPR. Examples include patients with chronic, progressive conditions such as malignancies, neurologic diseases, renal failure, respiratory disease, and sepsis who have less than a five percent chance of survival and a much greater than 50% chance of multiple complications from CPR. In these situations, the performance of CPR is futile.123 In fact, CPR can be predicted to cause much greater harm than benefit.124 118

Steele v. St. Paul's Fire and Marine Ins. C o . , 371 S o . 2 d 843 (La. A p p . 1979). See also Thornton v. Annest, 19 Wash. A p p . 174, 5 7 4 P.2d 1199 (1978) (court held " o n l y feasible and available treatment" must be disclosed to a patient by a surgeon prior t o surgery). 119 Natanson, 3 5 0 P.2d at 1095. 120 Harrigan v. United States, 4 0 8 F. Supp. 177 ( D . D . C . 1976). Downer v . Veilleux, 322 A . 2 d 82 (Me. 1974). 121 Marsh, supra note 7 6 , at 171. 122 Downer v . Veilleux, 322 A.2d 82 (Me. 1974). 123 Taffet, Teasdale, & Luchi, supra note 5 . This study analyzed hospital patients w h o received C P R . None of the cancer patients receiving C P R lived to b e discharged. Also, n o patient over 7 0 years old w h o required C P R survived to b e discharged. In addition, the authors looked at eight other similar studies a n d found that patient age of 7 0 years o r greater w a s significantly associated with patients not living to b e discharged. Another excellent study w a s conducted by Bedell, et al., supra note 5 , at 569, which found a mortality rate of 9 5 % in elderly patients with hypotension, renal failure, pneumonia, cancer, or homebound life-style, w h o underwent C P R . None of the patients with sepsis survived to b e discharged n o r did any of the patients with acute stroke accom-

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3. The Reasonable Patient Approach This view, often referred to as the Canterbury rule, focuses solely on the information a "reasonable patient" would want to know to make a decision.125 This standard for information disclosure, like that of the "reasonable physician" approach, presupposes that a feasible medical procedure is available to be offered to the patient. This presupposition is entirely erroneous in those situations where the patient's medical condition is such that there are no available treatment options, including CPR. Under the Canterbury standard, the complete frame of reference is that of the patient—what a reasonable patient under similar circumstances would want to know, without regard to the disclosure norms of the profession.126 It is the "reasonable patient" who determines the extent of participation in the decision-making process as well as the overall dimensions of information necessary for making an informed decision. In the case of. Sternback v. Barkfield,™ the Louisiana Supreme Court held that disclosure of information should include any "available alternatives."128 Thus, disclosure of information regarding CPR would be unnecessary as an available course of treatment for some patients despite the availability of CPR for other patients under different circumstances.129 What is important is the distinction between patients who have no hope of ultimate recovery from CPR and those for whom treatment alternatives are available.130 In the case of patients with no hope of recovery, CPR becomes extraordinary treatment, while remaining an ordinary and necessary service for those patients for whom treatments are available. If we assume that, in a given case, CPR is technically available but is

124

125 126 127 128

129

panied by neurologic defect. There w a s also a high mortality (98%) among patients w h o suffered severe left ventricular dysfunction before cardiac arrest. Both of these studies are consistent with the literature and provide the basis for a consensus regarding futile care. See also Podrid, Resuscitation in the Elderly, 111 ANNALS INT. M E D . 193 (1989); Lantos, et a l . , supra note 25 (indicating that CPR may be considered a non-validated therapy in infants of very low birthweight). The authors state: " C P R in babies of very low birth weight, especially in the first 72 hours of life, may be considered an unproved and virtually futile therapy." Id. at 9 4 . See Stanley, supra note 7 9 , at 130. The "reasonable physician" standard is clearly met by a treating physician who initially determines C P R to be a futile exercise, enters a D N R order, and informs the patient/family that there a r e n o treatment options available that would be medically beneficial to the patient. 4 6 4 F.2d 7 7 2 ( D . C . Cir. 1972). Id. 4 2 8 S o . 2d 915 (La. 1983). Id. at 918. Whether C P R is an "available alternative" depends solely on the physician's assessment of the patient's medical condition and is not a determination that is derived from the patient's perspective. See Tomlinson & Brody, supra note 13, at 4 6 . This distinction clearly divides the leading cases of Superintendent v . Saikewicz, 373 Mass. 7 2 8 , 370 N . E . 2 d 728 (1977) and In re Dinnerstein, 6 Mass. A p p . 4 6 6 , 3 8 0 N.E.2d 134 (1978). In


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medically inappropriate, the procedure still would be looked upon as "extraordinary" care and, as such, the physician would not be obligated to disclose its availability.131 For liability to be assigned to the physician under the "reasonable patient" standard, the patient's family would be required to show that had proper information been disclosed regarding CPR, even though it would be futile, neither the patient, nor a reasonable person in similar circumstances would have foregone the procedure and chosen a DNR order.132 If, as this article contends, DNR decisions are based on physiological diagnoses and prognoses, such that a resuscitation attempt would be futile and a patient would not survive, then any advance decision by a patient regarding CPR is really a non-decision because the end result is the s a m e death.133 The failure to inform a patient of alternative methods of treatment does not result in liability for medical malpractice where the existing alternative would not be appropriate for treatment, or where the patient does not establish that the alternative method of treatment would have been chosen over the method actually used if disclosure had been made.134 When considering the disclosure rule, the elements of the informed consent cause of action are as follows: (1) existence of material risks unknown to the patient; (2) failure to disclose the risks; and, (3) injury, proximately caused by the non-disclosure, that is, had the risks been disclosed, a reasonably prudent patient would have chosen a different course of treatment.135 Applying this principle to specific cases where resuscitation attempts would be futile, a strong argument can be made that a reasonably prudent patient would not opt for the highly invasive CPR procedure of placing tubes within the trachea for artificial respiration, electrocardial shock, beating on the chest (which often produces broken ribs), administering intravenous medication to correct abnormalities in blood pressure, and, in some rare cases, emergency placement of a temporary pacemaker.136 In such cases, a plaintiff in a suit for damages based on lack of informed consent would be placed in the untenable position of asserting

Saikewicz, the court noted that the treatment offered to the patient—albeit temporary—carried the potential for a "remission of symptoms." Accordingly, the decision to treat Saikewicz involved a "significant treatment choice." In Dinnerstein, the court concluded that the patient's condition precluded administering futile treatment, and hence, there was no significant treatment choice to be made. 131 See Annotation, supra note 9 9 , at 244. 132 Harbeson v . Parke Davis, Inc., 746 F.2d 517 (9th Cir. 1984). 133 Dantzker, The Decision to Resuscitate Slowly, in TROUBLING PROBLEMS MEDICAL ETHICS c h . 131-40 (1986). 134 See Annotation, supra note 114, § 4 . 135 Brown v . Dahl, 4 1 Wash. App. 5 6 5 , 7 0 5 P.2d 781 (1985). 136 Annas, CPR: When the Beat Should Stop, 12 HASTINGS CENTER REP. 30 (Aug. 1982).

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that the deceased knew or should have known that CPR would have been futile, but would have chosen to have CPR administered anyway.


III. THE FAMILY'S RIGHTS The issue of the rights of fainily members to participate in or make decisions about whether a patient should undergo medical treatment is generally limited to situations involving minors or incompetent adults.137 While courts will respect the rational decision of family members who want to protect the bodily integrity or other personal interest of the patient, family members do not have the right to assert the privacy rights of the patient on their own behalf.138 The privacy rights of the child or incompetent adult patient can be asserted by the family member only on behalf of the patient. If the parental conduct (or spousal conduct, as the case may be) threatens a patient's well-being, the interests of the state and of the patient may mandate intervention.139 In Custody of a Minor,xw the Massachusetts high court affirmed the trial court's decision giving temporary guardianship of a 20-month-old child with leukemia to the welfare department for purposes of consenting to chemotherapy treatment. While courts are reluctant to overturn parental objection to medical treatment for a child when 137

But see In re Storar, 52 N.Y.2d 3 6 3 , 4 2 0 N.E.2d 6 4 , 4 3 8 N.Y.S.2d 266, 2 7 0 , cert, denied, 4 5 8 U . S . 858 (1981) (the court noted that the director's petition to turn off the respirator was supported by the patient's ten nieces and nephews, the only surviving relatives). Aside from occasional references to extended family members like this, there does not appear to be any case support affording rights to family members beyond those that comprise the immediate family (spouse, parents, brothers, and sisters). 138 Custody of a Minor, 375 Mass. 7 3 3 , 379 N.E.2d 1053, 1063 (1978); Spring, 405 N . E . 2 d at 115. Accord Brophy v . New England Sinai Hospital, Inc., 398 Mass. 417, 497 N . E . 2 d 626 (1986) (court granted a wife's request that her comatose husband's feeding tube be withdrawn and noted that the wife had discussed her husband's situation with their parish priest w h o believed that the decision was based on love and compassion for her husband and her family; court also noted that the decision was not based on financial considerations); Foody v. Manchester Memorial Hospital, 4 0 Conn. Supp. 127, 482 A.2d 713 (1984). At the request of the parents of a 42-year-old M S patient, whose semi-comatose condition w a s permanent and irreversible, the court authorized the discontinuance of a respiratory and nasogastric tube. The court took note that the parents had n o financial interest in the outcome of the proceedings because all the patient's medical expenses were paid by insurance and Medicare. Cf. Hart v. Brown, 29 Conn. Supp. 368, 289 A.2d 386 (1972). T h e court placed greater emphasis on the clergyman's testimony, that the parents' decision to consent to an isograft kidney transplant from one twin daughter to the other was "morally and ethically sound," than on the psychiatrist's testimony. T h e psychiatrist testified that the donor had a strong identity with her sister and would be better off in a happy family than in one distressed because of the death of the sister whose kidneys were failing. T h e psychiatrist's testimony w a s found to be of limited value because of the twins' a g e . 139 Custody of a Minor, 379 N.E.2d at 1063. See Storar, 4 3 8 N.Y.S.2d at 275 (no matter how well intended, parents cannot deprive a child of life-saving treatment); But cf. In re Hofbauer, 47 N.Y.2d 648, 393 N.E.2d 1009, 4 1 9 N.Y.S.2d 936, 940-41 (1979) (it is not for the courts to determine the most "effective" treatment when parents have chosen among reasonable alternatives). 140 375 Mass. 7 3 3 , 379 N.E.2d 1053 (1978).

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the condition is not life-threatening and the proposed treatment would expose the child to great risk, parental rights do not give parents life and death authority over their children. The court's decision was based on the fact that the child's leukemia was fatal if left untreated, the parents were unwilling to continue the chemotherapy, it was the only available treatment offering a cure (better than 50% survival rate), and the risks of treatment were minimal.141 Because the rights of family members are no greater than those of the patient, they need not be considered separately when analyzing the issue of whether a patient is entitled to futile treatment. IV. THE PHYSICIAN'S RIGHTS The right-to-die cases have recognized the rights of the attending physician to participate in decisions regarding whether to provide medical treatment.142 This right is expressed, in part, as the state's interest in maintaining the ethical integrity of the medical profession.143 Courts have acknowledged that current medical ethics do not require that all efforts be employed in prolonging life in all circumstances and that there is a recognition among physicians that dying patients frequently need

141

Id. at 1062-63. See also Storar, 4 2 0 N . E . 2 d at 64. The parents of a 52-year-old m a n with a mental age of 18 months refused to consent to regular blood transfusions required because of his bladder cancer. Although the bladder cancer w a s incurable and fatal, the related loss of blood posed a risk of earlier death and did not involve excessive pain. The court held that, under these circumstances, it would b e inappropriate to allow an incompetent patient to bleed to death even though someone as close as a parent or sibling feels that this is in the patient's best interest. "Even when the parents' decision to decline necessary treatment is based on constitutional grounds, such as religious beliefs, it must yield to the state's interests, as parens patriae, in protecting the health and welfare of the child." Id. at 2 7 5 - 7 6 . 142 Brophy v. New England Sinai Hospital, I n c . , 398 Mass. 4 1 7 , 497 N.E.2d 626 (1986). The court recognized the right of the hospital and the physicians to refuse to terminate nutrition and hydration by removing the patient's swallowing tube and stated that the patient's right to discontinue treatment could be met by a transfer to another institution. Id. at 639. But see Bolivia, 2 2 5 Cal. Rptr. at 297. " I t is incongruous, if not monstrous, for medical practitioners to assert their right to preserve a life that someone else must live or, more accurately, endure, for ' 1 5 to 2 0 y e a r s . ' " Id. at 305. Cf. Gray v. Romeo, 697 F. Supp. 580 (D.R.I. 1988). The court held that if the patient could not promptly be transferred to an institution that would comply with the patient's decision to remove the gastrostomy tube, the hospital would have to comply with that decision. The court noted that the hospital did not articulate, or otherwise notify the public or the patient's family, of its policy to refuse to participate in a patient's decision to terminate nutrition and hydration. 143 Saikewicz, 370 N.E.2d at 425. See In re Farrell, 108 N . J . 335, 529 A.2d 4 0 4 , 411-12 (1987) (cites to numerous authorities on this issue). But see Storar, 4 3 8 N.Y.S.2d at 2 7 9 (Judge Jones, in his dissent, emphasized that neither physicians n o r hospitals have standing to bring cases challenging a patient's decision to forego medical treatment. "Medical care providers have at best only a tangential interest in the outcome of the litigation and can have n o legitimate individual stake in the institution (or continuation) or the discontinuance of the medical procedures").


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comfort more than they do treatment.144 Courts generally have held that the ethics of the medical profession are not threatened by a patient's decision to withhold treatment.145 This issue also has been characterized as a question of whether the state may tolerate the use of force by physicians to prevent death (for example, forced blood transfusions).146 The case of John F. Kennedy Memorial Hospital v. Heston,147 involved a 22-year-old Jehovah's Witness who was involved in an automobile accident requiring an operation for a ruptured spleen and who would not consent to a blood transfusion. In upholding the lower court's decision authorizing the transfusion, the New Jersey Supreme Court acknowledged that this was an issue not only between the state and the patient, but that there also existed a controversy between the patient and the hospital and its staff. Neither the hospital nor its staff endeavored to seek out the patient, yet the effect of complying with the patient's religious beliefs would fall as a burden upon them. In further addressing the rights of the parties, the court emphasized that the patient's family, also Jehovah's Witnesses, made no effort to take the patient to another institution. The court placed a great deal of weight on the fact that the medical and nursing professions are dedicated to preserving life and that, irrespective of the importance the law places on a patient's private convictions, it was tantamount to malpractice for them not to give the patient a blood transfusion—a simple established procedure.148 It is noteworthy that the court found that the interest of the hospital and its staff, as well as the state's interest in the preservation of life, warranted the authorization for the transfusion. 144

Saikewicz, 370 N . E . 2 d at 426. Ethical principles a r e not in conflict with a patient's right to refuse necessary treatment in appropriate circumstances. 145 Id. at 426. Cf. In re Longeway, 133 Ill. 2 d 3 3 , 549 N . E . 2 d 292, 299 (1990) (the ethical integrity of the medical profession can be ensured by not compelling any medical facility or its staff to act contrary to their moral principles—the patient can be transferred t o a different facility o r a new physician can b e appointed t o carry out the patient's wishes). But see In re President and Directors of Georgetown College, Inc., 331 F.2d 1000 ( D . C . Cir. 1964), cert. denied, 377 U . S . 9 7 8 (1964), where the court authorized a blood transfusion against the wishes of the patient, a Jehovah's Witness. T h e court could not find a source of authority by which she could impose limitations on the physician that would produce death. While the court acknowledged the patient's right to impose limitations on her physician based on notions of commercial contract, this right w a s found to have "less relevance" in life-or-death situations. Neither the principle that life and liberty a r e inalienable rights, n o r the principle o f liberty o f religion were sufficient to overcome the state's right to "prevent martyrdom." Id. at 1009. 146 John F. Kennedy Memorial Hospital v . Heston, 5 8 N . J . 576, 2 7 9 A.2d 670, 6 7 3 (1971). 147 5 8 N . J . 576, 279 A.2d 670 (1971). Cf. Georgetown College, 331 F.2d at 1000, where the court also focused o n the fact that the hospital w a s placed in a dilemma not of its o w n making because the patient "sought medical attention and placed on the hospital the legal responsibility for h e r proper c a r e . " T h e court distinguished this case from those in which an individual, for religious or other reasons, has refused t o seek medical treatment. Id. at 1007. 148 Heston, 2 7 9 A.2d at 673-74.


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Although some courts have discussed the interest of the hospital and its staff, particularly nurses, in these situations149 such cases are infrequent. The state's interest in protecting the ethical integrity of the medical profession has been found to extend to hospitals, allowing these institutions "the full opportunity to care for people under their control."150 Courts have expressly recognized that physicians, in consultation with close family members, are best able to make decisions whether artificial life support should be terminated.151 It has been recognized that, for many years, physicians and family members have been making decisions concerning the withholding or withdrawing of life support from terminally ill patients incapable of making such decisions with no evidence that individual patients or society has suffered from this "private" decision-making process.152 V. POTENTIAL LIABILITY When confronted with the decision of whether to offer or provide the patient medical treatment that would be futile, it is likely that a physician will be concerned with potential liability if such treatment is not offered or provided. This article contends that liability for not offering or providing futile care is remote and that a physician has greater liability exposure if such treatment is provided. The theories of liability that have been discussed and developed in those cases where physicians and hospitals have initiated treatment for terminally ill patients, or refused to terminate treatment once it began, strongly suggest that certain types of liability could result from providing futile treatment. Because situations involving decisions to provide futile care arise when patients have a very poor prognosis, lawsuits against treating physicians most likely will be brought by the patient's family. Family 149

Id. at 673; Cf. Georgetown College, 331 F.2d at 1000, 1004 (where the court acknowledged the hospital's right to seek a judicial declaration of its rights and noted that after-the-fact damage suits are a poor substitute for timely declaratory or injunctive relief). Some courts even have acknowledged the rights of hospital administrators. John F. Kennedy Memorial Hospital, Inc. v. Bludworth, 452 So. 2d 921 ( H a . 1984). 150 Custody of a Minor, 375 Mass. 7 3 3 , 379 N.E.2d 1053, 1066 (1978). In United States v . University Hospital, 729 F.2d 144 (2d Cir. 1984), affd. sub. nom. Bowen v. American Hospital Ass'n, 476 U . S . 6 1 0 (1986), the United States Department of Health and Human Services brought an unsuccessful action against a hospital under section 504 of the Rehabilitation Act, alleging that the hospital violated that act because it failed to initiate legal proceedings in state court to overrride the parents' decision not to seek corrective surgery for their infant with spina bifida, microencephaly, and hydrocephalus. 151 Bludworth, 452 S o . 2d at 926. " T h e focal point of such decisions should be whether there is a reasonable medical expectation of the patient's return to a cognitive life as distinguished from the forced continuance of a vegetative existence." 152 Storar, 438 N.Y.S.2d at 277-78 (Jones, J., dissenting).

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members may be angry and distressed over the rendering of extraordinary treatment that is aggressive, invasive, and futile, and for which they, the patient's estate, or the patient's insurer are financially responsible. These circumstances, together with the fact that futile care will only prolong the patient's existence for a limited amount of time with no real hope for a better prognosis, tend to be conducive to litigation. Such lawsuits may be initiated in the name of the patient or, if the patient has died, by the patient's estate and surviving dependents.


A. Liability for Failing to Render Futile Care While most physicians may point to the threat of civil liability as the justification for unwillingness to enter a DNR order when they believe that CPR would be futile, there is substantial case law supporting the proposition that there is no liability for entering a DNR order in those circumstances. Physicians generally are concerned with civil liability that might arise from claims of malpractice, abandonment, and infliction of emotional distress as well as the potential for criminal liability. 1. Malpractice The circumstances under which a physician could be liable in a malpractice action for entering a DNR order following a determination that CPR would be futile are no different from those in any other treatment context. Any potential liability would not arise from the entry of the DNR order, but from the decision that CPR would be futile if it subsequently were shown that the decision was incorrect. To succeed in a malpractice claim against the physician, the patient (or the patient's estate) must prove that the physician was negligent by showing (1) that the physician owed the patient a duty of due care to act according to a specific standard, (2) that the physician breached that duty, (3) that the patient was injured, and (4) that there was a causal connection between the breach of duty and the patient's injury.153 Of greatest consequence would be the plaintiffs burden to establish that issuance of a DNR order violated the standard of care under the applicable circumstances and that the patient suffered harm as the proximate result of the entry of the order. A physician breaches the duty of due care owed to the patient if there is a failure to exercise the degree of care and skill of the average qualified practitioner or, if the physician is a specialist, the degree of care and skill

153

Oswald v. Legrand, 453 N.W.2d 634, 635 (Iowa 1990); Dunning v. Kerzner, 910 F.2d 1009, 1013 (1st Cir. 1990); White v. Wah, 789 S.W.2d 312, 315 (Tex. App. 1990).


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of the average physician in that specialty.154 This standard of care must be established by expert testimony, and it must be proven that the defendant physician deviated from that standard of care.155 If the physician determines that, based on the patient's condition, CPR does not offer a life-saving or life-prolonging treatment alternative, then a DNR order is appropriate.156 The physician will not be found to be negligent so long as the decision that CPR would be futile is in accordance with acceptable medical knowledge regarding the ineffectiveness of CPR as a life-saving or life-prolonging treatment for patients in similar conditions.157 For this reason, hospital medical staffs should adopt guidelines for issuing unilateral DNR orders that are based on profiles of patients for whom CPR is futile. So long as these guidelines are regularly updated in accordance with new studies in this area, a physician who enters a DNR order pursuant to the guidelines should not be found liable in malpractice for such a decision. In Payne v. Marion General Hospital,™* a physician was sued for malpractice by the patient's estate for entering a DNR order without obtaining the patient's informed consent. The Indiana appellate court noted that this was a case of first impression, as no other court had considered the issue of a physician's liability for entering a DNR order.159 The court reversed summary judgment for the physician, finding evidence from 154

Brune v . Belinkoff, 354 Mass. 102, 235 N . E . 2 d 793 (1968). See also Dunning v. Kerzner, 910 F.2d 1009 (1st Cir. 1990). 155 Jewell v. Holzer Hospital Found., 899 F.2d 1507 (6th Cir. 1990). Expert testimony is required in all but the few cases in which the negligence and damages are sufficiently obvious t o b e within common knowledge. 156 Dinnerstein, 3 8 0 N . E . 2 d at 139. Life-saving or life-prolonging treatment means treatment "administered for the purpose, and with some reasonable expectation, of effecting a permanent o r temporary cure of o r relief from the illness o r condition being treated." Id. at 1 3 7 - 3 8 . 157 Cf. Downer v. Villeux, 322 A . 2 d 82 (Me. 1974). A physician is not obligated to discuss with the patient, in the abstract, the types of treatment that would be effective if only the patient's condition were different. Id. at 9 3 . 158 5 4 9 N . E . 2 d 1043 (Ind. App. 1990). T h e physician initiated the suit against the patient's estate t o recover compensation for physician services. T h e estate filed a counterclaim against the physician alleging malpractice and against the hospital for failing to provide proper procedural safeguards concerning D N R orders. T h e court affirmed summary judgment for the hospital because the estate failed to present evidence that the absence of a written D N R policy constituted conduct that fell below the requisite standard of care. Id. at 1051. 159 Id. at 1045. T h e court acknowledged that this issue arose in Strickland v. Deaconess Hospital, 4 7 Wash. App. 262, 735 P.2d 7 4 (1977), where the patient was admitted to the hospital with cardiopulmonary failure and put on a respirator. Five days later, the physician entered a D N R order and, over several days, " w e a n e d " the patient from the respirator. After the sons of t h e patient's wife d e manded the respirator b e reconnected, the physician did so and withdrew the D N R order. T h e patient recovered a n d t w o years later sued the physician and the hospital on claims of negligence, lack of informed consent, outrage, and violation of his constitutional right of privacy. Because the patient died prior to trail, the patient's claim for outrage and violation of privacy were both dismissed because they were personal to the patient a n d did not survive to the estate.


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which a jury could conclude that the 65-year-old patient was not terminally ill and was conscious, alert, and able to communicate when the DNR order was entered. Because the evidence could support such a conclusion, the court rejected the physician's claim that he did not have any duty to obtain the patient's informed consent. The court determined that the issue of whether the patient was damaged by the physician's failure to obtain informed consent was a jury question. If the jury were to find that the patient was not terminally ill, it could find that the patient sustained some damage.160 The evidence as to whether the patient was terminally ill was based on the physician's deposition testimony that he had treated the patient for precisely the same conditions a year previously and the patient had lived and been discharged from the hospital.161 Although the court did not discuss how it defined terminal illness, the court's opinion implies that, on remand, the primary (if not the sole) issue for the jury will be to determine whether the patient's condition was such that administering CPR would have been futile. 2.

Abandonment

A physician is under a duty to give each patient all necessary and continued medical treatment so long as such treatment is required. The

160 161

Payne, 549 N.E.2d at 1050. Id. at 1049. If it is shown that the physician's decision that CPR would be futile was negligent then, because the plaintiff must still establish proximate cause, the physician will not be liable unless it also can be shown that the negligence denied the patient a loss of chance. Under the loss of chance doctrine, the focus is on whether the physician's negligence w a s a substantial factor in reducing the patient's chances of recovery—because failure to diagnose or properly treat denies the opportunity to recover. See Aashiem v. Humberger, 695 P.2d 824 (Mont. 1985) (patient who sued his physician for failing to diagnose cell tumor not held to showing that there was a better than 50/50 chance of obtaining a better result had physician diagnosed the tumor earlier; the trier of fact should determine whether the physician's negligent failure to diagnose and treat w a s a substantial factor in reducing the patient's chances of obtaining a better result). See also Herskovits v. Group Health Cooperative of Puget Sound, 99 Wash. 2d 609, 664 P.2d 4 7 4 (1983) (fact that medical testimony indicated that physician's failure to make a timely diagnosis of patient's cancer reduced chance of survival from 3 9 % to 2 9 % was sufficient to allow question of proximate cause of injury to go to the jury and justified refusal of summary judgment); Ehlinger v. Sipes, 155 Wis. 2d 1, 4 5 4 N.W.2d 754, 759 (1990) (allowing plaintiff to g o to trial against physician for alleged negligence and failing to diagnose patient's multiple pregnancy, because the plaintiff need only show that the omitted treatment w a s intended to prevent the very type of harm that resulted, that the plaintiff would have submitted to the treatment, and that it is more probable than not the treatment could have lessened or voided the plaintiffs injury h a d it been administered); Falcon v . Memorial Hospital, 4 3 6 Mich. 4 4 3 , 462 N.W.2d 4 4 (1990) (estate of patient entitled to g o to trial against hospital and attending physician based on expert testimony that if the physician would have performed the procedure in contention, the decedent would have had a 37.5 % opportunity of surviving the medical accident that was the cause of plaintiffs death).


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breach of this duty constitutes abandonment, a type of malpractice claim.162 Abandonment also has been defined as the unilateral severance of the professional relationship between the physician and the patient without reasonable notice when continuing medical treatment was still necessary.163 The cases in which physicians have been found liable for abandonment of a patient have involved situations in which the patient clearly was in need of continuing medical care and the physician, without good reason and in violation of medical ethics, ceased or refused to provide such care without giving the patient reasonable opportunity to find a new physician.164 To succeed in the context of a claim of abandonment, the patient must show that the physician stopped rendering care when treatment was still necessary. If the physician entered a DNR order on the patient's chart, based on the fact that CPR would be futile for that patient, then the entering of a DNR order does not constitute abandonment. To the contrary, the treating physician continues to care for the patient but simply has chosen not to provide treatment that is futile. This course of action is no different from the situation in which a physician does not offer a patient the option of surgery because the physician has determined that surgery would be of no benefit to the patient. In neither case has the physician abandoned the patient or otherwise breached the duty of due care. 3. Infliction of Emotional Distress Claims by the family of deceased patients for alleged infliction of emotional distress based on the physician's failure to provide futile care have not been successful. In Gallups v. Cotter,165 the family of a deceased patient sued the treating physicians and the hospital on the grounds that the defendants: (1) were negligent in the treatment of the patient in that they did not follow the proper procedures for determining brain death; (2) breached expressed and implied contracts in the care of the patient; (3) breached their representation to the family that life support would not be withdrawn without consent; and, (4) removing life support constituted the

162

Miller v. Greater Southeast Community Hosp., 5 0 8 A . 2 d 927 ( D . C . A p p . 1986); Johnston v. Ward, 2 8 8 S.C. 6 0 3 , 344 S.E.2d 166 (1986). See also M . MCCAFFERTY & S. M E Y E R , MEDICAL M A L P R A C T I C E : BASES O F LITIGATION § 2.21 (1985).

163

Dicke v . Graves, 9 K a n . A p p . 2d 1, 6 6 8 P.2d 189 (1983) (the essence of " a b a n d o n m e n t " is unilateral termination of the physician-patient relationship by the medical practitioner; if the practitioner withdraws from the case before the patient's need for services is at end, the practitioner must give notice t o the patient and afford the patient with a reasonable opportunity to secure other medical attendance). 164 Id. See also Johnson v. Ward, 288 S . C . 603, 344 S.E.2d 166 (1986); Magana v . Elie, 108 Ill. App. 3d 1028, 439 N.E.2d 1319 (1982). 165 534 So. 2d 585 (Ala. 1988).


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tort of outrage. The Alabama trial court granted the physicians' motion for summary judgment.166 The patient in Gallups was a child who had sustained closed head trauma and body trauma in a car accident. Upon being admitted to the hospital, the child was diagnosed as brain dead by a nonparty physician but placed on a ventilator. The defendant neurosurgeon also examined the child, reviewed the EEG tracings, and confirmed the brain death diagnosis based on a lack of cerebral responsiveness over a period of hours and EEG tracings that showed no brain activity. Over the next 12 days, at least six additional neurological exams were done, and two more EEG tracings were recorded, all of which showed no electro-cerebral activity and a nonfunctional brain, indicating irreversible brain death. The family was informed of the diagnosis at all times and consistently stated its desire that life support be maintained. On the eleventh day of hospitalization, the ventilator was removed.IS? In upholding the trial court's summary judgment for the defendant physicians, the Alabama Supreme Court stated that the physicians would only be subject to liability for emotional distress if the family could show that the physicians' conduct was extreme and outrageous, intentionally or recklessly causing severe emotional distress. The court concluded that there was no evidence the physicians acted intentionally or recklessly to cause the emotional distress complained of by the family. Nor was there any evidence that the physicians had a desire to inflict severe emotional distress or that they knew severe emotional distress was likely to result from their actions.168 4. Criminal Liability In addition to their concern with malpractice and the other types of civil liability discussed above, physicians may fear that they will be exposed to criminal prosecution if they enter a DNR order even though they have determined that such treatment will be futile.169 This concern is mis-

166

Id. at 587-88. The defendant hospital and medical center were dismissed from the case on the basis of sovereign immunity. T h e state statute defining death included a definition of brain death. 167 Id. at 589. 168 Id. T h e court noted that there w a s a material dispute as to whether the family gave consent for removal of life support. See Morgan v . Olds, 4 1 7 N.W.2d 2 3 2 , 2 3 7 (Iowa A p p . 1987) (carrying out D N R plan did not subject physicians to liability for intentional infliction of emotional distress allegedly experienced by surviving spouse because (1) evidence indicated a misunderstanding as to whether spouse objected to physicians' decision and therefore was not outrageous and (2) there w a s no evidence that physicians acted intentionally or in reckless disregard of the probability of causing emotional distress). 169 Spring, 4 0 5 N . E . 2 d at 122.


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placed because all courts that have addressed this issue have ruled in favor of the physician.170 Commonwealth v. Edelin,m was a case involving an OB/GYN chief resident who had been convicted of manslaughter following the abortion of a 20 to 24-week-old fetus. The Massachusetts Supreme Court overturned the manslaughter conviction, noting that the physician was not found to have caused the death of a person by reckless or wanton acts.172 Significantly, the court focused on the physician's good faith judgment that the fetus was nonviable. There was no evidence to suggest that the physician's belief was grievously unreasonable according to medical standards. In fact, the possibility that the physician might have been wrong, and that the fetus was viable, did not constitute recklessness because there was nothing to indicate that the physician's belief of non-viability was flagrantly mistaken.173 The Edelin case clearly states that so long as the physician is not flagrantly mistaken about futile treatment and the patient's survival, the physician will not be subject to criminal liability. The court identified two factors in support of its holding that this case should not have gone to the jury on the issue of recklessness. First, citing Doe v. Bolton,™ the Edelin court emphasized that, when dealing with the professional judgment of a physician acting under stress at the operating table, the United States Supreme Court has cautioned against the undue hampering of the exercise of professional judgment.175 Second, the court emphasized that the case involved the constitutional right of privacy of the patient and the correlative constitutional right of the physician, to which the United States Supreme Court has assigned high value. A criminal statute therefore should be interpreted and applied with caution and circumspection whenever it will necessarily infringe on professional practice and constitutional freedoms.176 170

See Barber v. Superior Court, 147 Cal. A p p . 3d 1006, 195 Cal. Rptr. 4 8 4 (1983); Storar, 4 3 8 N.Y.S.2d at 266; In re Severns, 425 A.2d 156 (Del. C h . 1980); Commonwealth v. Edelin, 371 Mass. 497, 359 N.E.2d 4 (1976); Satz v. Perlmutter, 362 So. 2d 160 (Fla. App. 1978), aff'd, 379 So. 2d 359 (Fla. 1980); John F. Kennedy Memorial Hospital, Inc. v. Bludworth, 452 S o . 2d 921 (Fla. 1984). 171 371 Mass. 497, 3 5 9 N . E . 2 d 4 (1976). 172 Id. at 10. T h e physician had n o evil frame of mind, w a s not actuated by any criminal purpose, and did not commit any wanton o r reckless acts in carrying out the medical procedures. Id. at 18. Cf. Bludworth, 452 S o . 2 d at 9 2 6 (for a physician to be found civilly liable for the termination of treatment of an incompetent terminally ill patient, there must be a showing that the physician's actions were not in good faith but were intended t o harm the patient). 173 Edelin, 359 N . E . 2 d at 13-14. Noting that the case " a t t e m p t e d " post hoc review of the physician's judgment through a battle of experts before a lay jury and with the threat of criminal conviction and professional disgrace, the court seemed t o b e apologizing t o the defendant for having been subject to prosecution. 174 410 U.S. 179 (1973). 175 Edelin, 359 N . E . 2 d at 14. 176 Id.


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When read with the Edelin case, the decision in Barber v. Superior Court"7 should put to rest any concern a physician may have about criminal liability for entering a DNR order once it has been determined that CPR would be futile. The patient in Barber went into cardio-respiratory arrest after surgery. He was revived and put on life support but went into a deep coma and was diagnosed as being in a permanent vegetative state as the result of severe brain damage. After the defendant physicians told the patient's family that the prognosis for recovery was extremely poor, the family requested that the patient be taken off all life-sustaining machines. The physicians complied with this request and the patient continued to breathe. Consequently, after consulting with the family, the physicians then terminated intravenous hydration and nourishment. The patient then died, and the physicians were charged with murder and conspiracy to commit murder.178 The Barber court concluded that the termination of life support was not an affirmative act, but a withdrawal of further treatment. This distinguished the facts of the case from a situation in which a murder charge is supported by a parent's failure to feed an infant because a parent has a clear duty to feed an otherwise healthy child by statute in California. The court viewed the physicians' duty very differently and, because their conduct was characterized as an omission, rather than affirmative action, the resolution of the case focused solely on whether the physicians had a duty to provide the life-sustaining treatment.179 The court discussed the fact that the life-sustaining technology in question was not traditional treatment, in that it was not being used to cure the patient's condition but merely to sustain his biological functions so as to gain time to permit other processes to address the patient's underlying condition. Having concluded that there is no criminal liability for a failure to act unless there is a legal duty to act, the court focused its attention on determining what duties a physician owes to a patient who has reliably been diagnosed as comatose and for whom it is exceedingly unlikely that there will be any meaningful recovery of cognitive brain function.180 The question thus becomes, at what point does modern medical technology, such as the sort involved in the Barber case, cease to perform its 177 178

180

147 Cal. App. 3d 1006, 195 Cal. Rptr. 4 8 4 (1983). Id. at 486-87. T h e California Penal Code defined murder as "the unlawful killing of a human being . . . with malice aforethought." Id. at 487. Malice can be express or implied. It is express when there is a n intent unlawfully t o take a n y life, and it is implied when the circumstances show an abandoned and malignant heart. Id. at 4 8 6 - 8 7 . Id. at 490. T h e court rejected the prosecution's attempt to distinguish between removal of mechanical breathing devices and mechanical feeding devices (such as IV lines) and characterized the state's position as being predicated on "emotional symbolism" rather than on any rational distinctions. Id. at 490.

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intended function and who should have the authority to decide that further prolongation of the dying process is of no benefit to either the patient or the patient's family? The court determined that this decision belongs to the physician.


A physician has no duty to continue treatment, once it has proved to be ineffective. Although there may be a duty to provide life-sustaining machinery in the immediate aftermath of a cardio-respiratory arrest, there is no duty to continue its use once it has become futile in the opinion of qualified medical personnel.181

The fact that the physicians did not continue treatment under these circumstances, although intentional and with knowledge that the patient would die, was not an unlawful failure to perform a legal duty.182 Notwithstanding the court's clear language that the decision is to be made by the physician, the court went on to discuss the issue of who should make the decision, given the general standards for determining when there is a duty to provide medical treatment of debatable value. "Clearly, the medical diagnoses and prognoses must be determined by the treating and consulting physicians under the generally accepted standards of medical practice in the community and, whenever possible, the patient himself should be the ultimate decision-maker."183 The court discussed the situation of a patient who, because of medical condition or for other reasons, is not capable of making treatment decisions and concluded that there was no clear authority on the issue of who and under what procedure a final decision is to be made. Nevertheless, the court went on to state: "It seems clear, in the instant case, that if the family had insisted on continued treatment, petitioners [defendant physicians] would have acceded to that request."184 The court's afterthought should not be interpreted as allowing the possibility of criminal liability for a unilateral DNR order when the physician has determined that CPR would be futile. Rather, this dicta most likely reflects the fact that it was not entirely clear from the record on review whether the treatment really was futile. B. Liability for Rendering Futile Care Physicians should be concerned with the potential liability that may result from the failure to unilaterally enter a DNR order when they have

181 182

183 184

Id. at 491 (emphasis added). Id. at 493. The court further stated: "[I]t appears to us that a murder prosecution is a poor way to design an ethical and moral code for doctors who are faced with decisions concerning the use of costly and extraordinary 'life support' equipment." Id. at 486. Id. at 4 9 2 . Id. The court's perspective on this issue may have been influenced by the fact that there was testimony depicting a miniscule chance for the patient's full recovery.

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determined, or should have taken the time to determine, that CPR would be futile. The patient or the patient's family may sue the physician based on various legal theories, including battery, infliction of emotional distress, breach of fiduciary duty, deprivation of constitutional rights, handicap discrimination, breach of contract, or a claim for attorneys fees following a successful action to end the futile treatment.


1. Battery An unconsented touching, however slight, that is either harmful or offensive constitutes a battery.185 In the area of health care, liability can result even if medical treatment is harmless or beneficial.186 The plaintiff's obligation to show that consent was not obtained would be met if the physician failed to obtain the patient's consent for treatment or if the physician failed to explain clearly that the treatment was futile, because that would render the patient's consent meaningless. The requirement that the touching be harmful or offensive would vary in each situation depending on how invasive the treatment was, whether there was any evidence that the patient was aware of or suffered as a result of the invasiveness, the length of time the patient's life was prolonged because of the futile treatment (including the patient's condition during that prolonged period), and the cost of such treatment.187 One court has recognized that maintaining a patient on a respirator against his wishes may cause the patient to suffer actual damages of humiliation, anguish, and grave discomfort.l88 In Estate of Leach v. Shapiro,m the relatives of a deceased patient 185

Tonelli v. Khanna, 238 N . J . Super. 121, 569 A.2d 282, 285 (1990). In the case of In re Spring, 380 Mass. 169, 4 0 5 N . E . 2 d 115 (1980), the court distinguished competent from incompetent patients and stated that "there is serious question whether it is useful to think about medical treatment of incompetent patients in terms of battery." Id. at 121. 186 Tonelli v. Khanna, 2 3 8 N . J . Super. 121, 5 6 9 A.2d 282, 2 8 5 (1990); Williams v. Lemon, 194 G a . App. 249, 390 S.E.2d 8 9 , 9 0 (1990); Andrews v. Peter, 75 N . C . A p p . 252, 3 3 0 S.E.2d 6 3 8 , writ denied, 315 N . C . 182, 3 3 7 S.E.2d 65 (1985); Perna v. Pirozzi, 9 2 N . J . 446, 4 5 7 A.2d 431 (1983). 187 C P R typically involves the u s e of cardiac massage o r chest compression, the delivery of compressed oxygen through an endotracheal tube into the lungs, and the insertion of IV lines t o deliver medications or stimulants to the heart. It also may involve direct injections of medications into the heart b y means of long needles, applying electric shocks t o the heart b y a defibrillator, o r pacemaker stimulation in the form of an electrical conducting wire fed through a blood vessel directly to the heart's surface. Many of these procedures are highly intrusive, violent in nature and, in patients suffering from osteoporosis, may fracture bones, causing additional pain. Dinnerstein, 3 8 0 N . E . 2 d at 135-36. 188 Bartling v. Glendale Adventist Medical Center, 184 Cal. A p p . 3d 9 6 1 , 2 2 9 Cal. Rptr. 3 6 0 (1986). The court did not analyze the plaintiffs battery claim beyond noting these possible damages, because the claim w a s exhausted upon the patient's death. 189 13 Ohio A p p . 3d 3 9 3 , 4 6 9 N . E . 2 d 1047 (1984). T h e court concluded that the plaintiffs' five counts each set forth a claim by which relief could b e granted and reversed the trial court's summary judgment for the defendant physicians.


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who suffered respiratory-cardiac arrest sued the physicians who maintained the patient on life support systems in a chronic vegetative condition for over five months. The court acknowledged that a patient's right to refuse treatment may be subordinated to the state's competing interests, but it held that the patient's right to refuse treatment is absolute until the importance of the state's interest can be considered in a court proceeding.190 The plaintiffs in Estate of Leach did not argue that the initial CPR that was performed on the patient when she was admitted to the hospital was futile treatment or a battery. Rather, they alleged that after administration of CPR, the patient was placed on life support systems without her family's consent. In considering this allegation, the Ohio appellate court focused on whether the patient was placed on life support as part of the initial CPR or after she was already in a vegetative condition. This distinction was important because, under the doctrine of implied consent, the physicians were not obligated to obtain consent for emergency treatment and the initial CPR seemed to have been accepted by the plaintiffs, and therefore by the court, as an emergency. The court cautioned that a patient's right of privacy could be nullified if the doctrine of implied consent is taken to the extreme because a physician could ignore the express wishes of a terminally ill patient by waiting until the patient became comatose and critical and then administenng treatment. 2. Infliction of Emotional Distress Rendering futile treatment may subject the physician to liability for intentional infliction of emotional distress experienced by the spouse or dependents, if the physician's actions constitute a battery against the patient.192 In Estate of Leach, the family of the deceased patient was allowed to go to trial against the treating physicians to recover for pain, suffering, and mental anguish of the decedent and themselves based on their allegations that the physicians initiated life support without consent of the patient or the patient's family and that some aspects of the treatment were experimental.193 Liability also has been found to exist in a situation where the physician's negligence did not give rise to a claim by a minor patient, but did give rise to a claim by the patient's parents for the recovery of mental 190

Id. at 1052. Id. at 1052-53. The court concluded that a patient's right to refuse treatment cannot be circumvented by the implied consent of a medical emergency so long as the patient's expressed refusal meets the same standards of knowledge and understanding required for informed consent. Id. at 1053. 192 See International Security Corp. of Va. v. McQueen, 4 9 7 A.2d 1076 ( D . C . A p p . 1985); Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983); Larson v. Lindahl, 167 Colo. 409, 4 5 0 P.2d 77 (1968). 193 Leach, 469 N.E.2d at 1055. 191


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and emotional distress because they were deprived of a fundamental right.194 To prevail on a claim for intentional infliction of emotional distress, a plaintiff must demonstrate the following: (1) outrageous conduct by the physician; (2) an intent to cause or a reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and, (4) actual and proximate causation of emotional distress.195 Proof of the outrageous conduct element may be the most difficult aspect of a plaintiffs case. In Battling v. Adventist Medical Center, the hospital and physicians used cloth wrist cuffs to restrain a competent adult male patient from accidentally or deliberately disconnecting his ventilator tubes. The patient, who had pulmonary emphysema, atherosclerotic cardiovascular disease, coronary arteriosclerosis, lung cancer, and an abdominal aneurysm, had made it clear that he wanted to be disconnected from the ventilator. Because the physicians and hospital refused to do so, and in fact restrained him from taking such actions on his own, the patient filed a suit for intentional infliction of emotional distress. In upholding the trial court's dismissal of this claim, the court emphasized that the Adventist hospital and its physicians were pro-life oriented and viewed disconnecting the ventilator as incongruous with their healing obligations.196 Under the test for intentional infliction of emotional distress set forth in the Restatement (Second) of Torts, it appears from the facts stated in Bartling that the patient should have prevailed on this claim. The court's opinion, however, seemed to turn on the fact that the defendants' actions in refusing to terminate treatment and imposing the restraints, were sincere and rooted in what they believed were the prevailing medical and legal standards. The court found that, at that time, there was no 194

195

196

Berman v . Allan, 8 0 N . J . 4 2 1 , 4 0 4 A.2d 8, 14 (1979). T h e physicians in Berman were negligent in failing to offer amniocentesis to a 38-year-old pregnant woman. If offered, the test would have revealed that the fetus had Down Syndrome and the parents then would have had the right to decide whether to accept a parental relationship with the child o r to abort. T h e court rejected the child's negligence claim against the physicians under a wrongful life theory. T h e parents' wrongful birth claim w a s allowed to go to the jury. T h e court concluded that Roe v. Wade, 4 1 0 U . S . 113 (1973), establishes that a woman has a constitutional right to decide whether to abort a fetus which, if born, would suffer from genetic defects. T h e parents' right to seek monetary damages for their mental and emotional distress w a s found to be derived from the mother's loss of her right to abort the fetus. Bartling, 2 2 9 Cal. Rptr. at 364-65. T h e court rejected the plaintiffs argument that the court should apply the test for outrageous conduct contained in the Restatement (Second) of Torts, § 4 6 , comments e & f (1965). Under this test, conduct is outrageous if the defendant (1) abuses a relation or position that gives the physician power to damage the plaintiffs interest, (2) knows the plaintiff is susceptible to injury through mental distress, or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress. Bartling, 229 Cal. Rptr. at 365.


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common or comprehensive legal standard in place, that the state of the law was unclear and that courts were developing new guidelines for physicians with respect to a competent patient's right to die.197 The court rejected the surviving spouse's claim for negligent infliction of emotional distress because it could be derived only from negligent treatment of the decedent and there was no evidence that the treatment did not meet the standard of care in the medical community.l98 A patient and her husband successfully sued a physician for unnecessary hospitalization in Larson v. Lindahl.199 Although hospitalization was indicated when the patient was first examined by the physician, it was shown at trial that the 61 days of hospitalization was entirely too long and caused the patient mental suffering, anguish, and apprehension. The court upheld the husband's recovery for hospital expenses and loss of consortium. The patient also was entitled to compensation for the unnecessary and prolonged hospitalization and for the mental anguish.200 3. Breach of Fiduciary Duty Situations in which a physician provides futile treatment to a patient may result in a claim for breach of fiduciary duty based on the patient's deteriorated mental and physical condition and the physician's superior knowledge concerning the treatment. A physician owes a fiduciary duty of good faith and fair dealing to the patient. This fiduciary duty gives rise to certain specific professional obligations, one of which is to fully inform the patient of his or her condition.201 The importance of adequate disclosure by the physician increases as the patient is placed at a greater informational disadvantage. Failure to disclose material information concerning the patient's physical condition may subject the physician to liability for fraud and misrepresentation due to the fiduciary relationship.202 If a court determines that the legal standards governing the area of futile treatment are unclear, and that a physician may be justified in pro-

197

Id. at 362-63. The court characterized the hospital's efforts to transfer the patient to another hospital that would honor his wishes as an attempt to reach a " c o m p r o m i s e " with the patient. 198 Id. at 365. 199 167 Colo. 409, 4 5 0 P.2d 77 (1968). 200 Id. at 7 8 . 201 Keithley v. St. Joseph's Hospital, 102 N . M . 565, 698 P.2d 435 (1986); In re Conroy, 98 N . J . 3 2 1 , 486 A . 2 d 1209 (1983); Leach, 4 6 9 N . E . 2 d at 1052. The other obligations include the duty to exercise d u e care and skill and to obtain the patient's informed consent to the treatment. 202 Leach, 469 N.E.2d at 1054. The court held that a physician's nondisclosure may give rise to a fraud claim independent of any malpractice. Because the physician's fiduciary obligations of full disclosure run t o the individual acting on behalf of an incompetent patient, the deceased patient's family was allowed to g o to trial on their claim that they were not informed of the patient's condition or prognosis for two months.

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viding futile treatment because of the uncertainty as to whether he would be liable for failing to provide it, then a claim of breach of fiduciary duty may be dismissed.203


4. Deprivation of Constitutional Rights Any individual who acts under color of state law to deprive another of a constitutional right is subject to civil liability under Title 42, section 1983 of the United States Code. A claim under section 1983 requires conduct under color of state law that deprives an individual of rights, privileges, or immunities secured by the constitution or laws of the United States.204 A plaintiff must show that the defendant either personally participated in a deprivation of the plaintiff's rights or caused such a deprivation to occur. The plaintiff also must show a causal connection between the alleged deprivations and the challenged conduct.205 If a patient can show a deprivation of constitutional rights under section 1983, the patient is entitled to recover all pecuniary losses as well as compensatory damages for any physical or emotional harm caused by the deprivation. If the evidence shows only an intangible loss of civil rights or purely mental suffering, the plaintiff still may be awarded substantial compensatory damages.206 The plaintiff also can recover exemplary or punitive

203

204

205

206

Battling, 229 Cal. Rptr. at 363 (the court dismissed the patient's claim for breach of fiduciary duty because rights in this area are not well defined). Bouvia v. County of Los Angeles, 195 Cal. App. 3d 1075, 241 Cal. Rptr. 2 3 9 , 246 (1987) (cited as Bouvia II). The first hurdle that plaintiffs face in this type of case is the color-of-law requirement. The plaintiff must show that the conduct occurred in furtherance of a governmental policy or custom that was promulgated by those whose acts fairly represent official policy. Id. at 2 4 7 . In Bouvia II, the patient's section 1983 claim failed because there was no evidence that the decision to wean the patient from morphine was made pursuant to a governmental custom, plan, or scheme. Morton v. Becker, 793 F.2d 185, 188 (8th Cir. 1986) (summary judgment for defendant police officers affirmed because allegations of plaintiffs complaint did not support a sufficient causal connection between the alleged deprivations of not being able to use or sell the car and defendant's act of seizing and holding car under mistaken belief that it was stolen). Magnett v. Pelletier, 488 F.2d 33 (1st Cir. 1973) (trial court's award of $500 "nominal damages" to plaintiff whose civil rights were violated, but who did not suffer physical or emotional damage, was remanded to determine whether the court intended to compensate the plaintiff for actual but impalpable injuries, because nominal damages are generally limited to $1.00). See also Ross v. Hilltop Rehabilitation Hospital, 676 F. Supp. 1528 (D. Colo. 1987) (summary judgment granted in favor of defendant-hospital and defendant-physician in an action alleging deprivation of constitutional rights and handicap discrimination because defendants' refusal to discontinue medication, nutrition, and hydration to the patient through a gastrostomy tube was based on conflicting evaluations of the patient's competence, the ethical belief of the attending physician, and the uncertain state of the law in Colorado at that time concerning a patient's right to discontinue such treatment). Proof of a single incident of unconstitutional activity may be sufficient to impose liability. Bouvia II, 241 Cal. Rptr. at 247.


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damages if it can be shown that the defendant's actions evidenced an improper motive, outrageous conduct, and overall bad faith.207 A patient may prevail on a section 1983 claim by citing the right-to-die cases and arguing that, by providing futile treatment, the physician deprived the patient of the constitutional right of privacy or of a constitutionally protected liberty interest. Such an argument has merit because, if the treatment is indeed futile, the imposition of the treatment (which generally is quite invasive) can be said to be the type of invasion of bodily integrity that the right to privacy or liberty is designed to protect against.208 However, by demonstrating good faith, a physician may not only avoid an award of punitive damages but may in fact gain a qualified immunity from any award of monetary damages, despite the fact that the challenged conduct deprived the patient of a constitutional right.209 This "good faith" defense combines both objective and subjective components,210 but a subjective good faith belief in one's conduct is not sufficient to protect an official from liability under section 1983.2" The fact that a physician thought he had the patient's best interest at heart does not give rise to a qualified immunity for constitutional purposes. Rather, in determining the validity of a physician's good faith defense, a court will focus on what the physician "knew or should have known" concerning the patient's constitutional right in relation to the state of the law during the relevant period.212 In analyzing whether a physician who provides futile treatment should be subject to section 1983 liability, a court will consider the physician's motive in providing such treatment.213 Whether the physician's sole motive 207

208

209

210 211

212

Caperci v. Huntoen, 397 F.2d 799 (1st Cir.), cert. denied, 393 U . S . 940 (1968) (court upheld the punitive damage award because the evidence supported the finding that conduct of defendant police officers, who searched the plaintiffs home in the middle of the night without a warrant or any probable cause, was outrageous, for an improper motive and not in good faith—even though they acted like gentlemen). In Leach, the court upheld the dismissal of the family's claim to recover damages for the physicians' alleged invasion of the deceased patient's right of privacy because it is a right personal to the individual and lapses with that individual's death. Leach, 469 N.E.2d at 1054. Wood v. Strickland, 420 U.S. 308 (1975) (school administrators and school board members who expelled students for violating a school regulation prohibiting alcoholic beverages at the school, which action the plaintiffs claimed violated their constitutional rights, were entitled to immunity because they acted in good faith). Id. at 321-22. Perez v. Rodrigues Bou, 575 F.2d 2 1 , 23 (1st Cir. 1978) (university chancellor who, without any hearing, suspended students for 12 days for banging on the doors and windows of his office and making loud remarks but who caused no other disruptions, was not entitled to immunity because the chancellor should have known his action was unconstitutional and subjective good faith in one's conduct is not sufficient under the test set forth in Wood v. Strickland, 420 U . S . 308 (1975)). Bennis v. Gable, 823 F.2d 7 2 3 , 733 (3rd Cir. 1987) (defendant mayor and defendant chief of police held to standard of reasonably active politicians who, in 1982, would not have believed that it would be permissible to demote city employees in retaliation for their political speech or associations); Hostrop v. Board of Jr. College, Dist. N o . 515, 523 F.2d 569, 577 (7th Cir. 1975), cert, denied, 425 U.S. 963 (1976).

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was to treat and help the patient may be relevant. A court may also consider a physician's conduct in relation to the patient's helplessness and dependency, because a finding of wanton or reckless behavior could be based in part on a determination that the patient was helpless. Under the good faith test, for a physician to defend against section 1983 liability successfully, the physician must show that the prime constitutional issue, the patient's right not to be subjected to futile treatment, was one that the physician was not bound to anticipate at the time the care was rendered.214


5. Discrimination on the Basis of Handicap Physicians providing futile treatment could be subject to liability under section 504 of the Rehabilitation Comprehensive Services and Developmental Disabilities Act of 1978, which prohibits discrimination on the basis of handicap.215 To be successful under section 504, there must be proof that the patient was: (1) handicapped within the meaning of the Rehabilitation Act; (2) "otherwise qualified" for the benefit sought; (3) excluded from the benefit solely by reason of the handicap; and, (4) that the benefit exists as part of a program or activity receiving federal financial assistance.216 In Ross v. Hilltop Rehabilitation Hospital^1 the estate of the deceased patient sued the hospital and the patient's physician alleging that they violated the Rehabilitation Act by failing to follow the patient's ex213

214

Tribble v. Gardner, 860 R 2 d 3 2 1 , 326-27 (9th Cir. 1988) (defendant's allegedly punitive motive in conducting digital rectal searches of prisoners, which were unrelated to security concerns, was relevant to plaintiffs claim that his constitutional rights were violated under section 1983). Compare Walters v. Western State Hospital, 864 R 2 d 695, 699 (10th Cir. 1988) ("[T]he insight of a constitutional scholar is not necessary to conclude that forcibly detaining a person without his consent and holding him incommunicado for a period of seven to 10 days implicates that person's constitutionally protected privacy and liberty interests") with Bouvia II, the patient was found not to be entitled to an award of attorney's fees under 42 U . S . C . § 1988 because it was not shown that her civil rights were violated under section 1983. The patient's section 1983 allegations were based on the physician's attempt to wean her from daily morphine injections—a treatment plan to which she would not consent. Although the trial court found that the patient's right to refuse care was based on a constitutional right of privacy, it concluded that no patient has a right to dictate a partial course of medical treatment and the evidence showed that there were differing medical views concerning the appropriate course of treatment for a patient suffering from chronic pain. Bouvia II, 241 Cal. Rptr. at 246-47.

215

Section 504 of the Rehabilitation Comprehensive Services and Developmental Disabilities Act of 1978 states: No otherwise qualified individual with handicaps in the United States, as defined in Section 706(8) of this title, shall, solely by reason of his or her handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. 29 U.S.C. § 794 (1988).

216

Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372, 1384 (10th Cir. 1981). 676 F. Supp. 1528 (D. Colo. 1987).

217


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plicit instructions to remove his gastrostomy tube because they perceived him to be mentally handicapped. The plaintiff also alleged that the hospital and physician discriminated against the patient because of his actual physical handicap by failing to obtain court authorization for the unwanted treatment. The patient, who was totally paralyzed following the occlusion of an artery to the brain, was physically unable to refuse the treatment although he had clearly communicated that he wanted the treatment stopped.218 The Colorado federal district court acknowledged that the Rehabilitation Act applies to opportunities for health care, but rejected the plaintiff's claim that the statute applies to a right to refuse medical treatment in this type of a situation as "an extremely expansive view of 'health care.' "219 The court held that the Rehabilitation Act does not apply to the medical treatment decisions of a physically handicapped patient who requests that medical treatment be terminated when the hospital and treating physician had reasonable doubts about the patient's mental competency. Consequently, the plaintiff failed to show that the patient was "otherwise qualified" for the desired benefit.220 The issue of futile treatment was not present in Ross, where the focus was on whether the patient was competent when he made his request—in other words, whether he really wanted his gastrostomy tube removed. In the case where a physician fails to enter a DNR order when CPR would be futile and CPR is administered, the patient or the patient's estate could bring a successful claim under section 504. Because futile treatment is only an issue when the patient's medical condition is extremely poor, it should not be difficult to show that the patient is handicapped within the meaning of section 504. The sought 218

Id. at 1538. Although the patient could not speak or swallow, he was able to communicate with slight head and eye movements. Two months after the patient communicated that he wanted the gastrostomy tube removed, the hospital and physician initiated legal proceedings in state district court to appoint a guardian for the patient, and requested a declaratory judgment concerning the patient's right to terminate treatment. Five months later, the state district court ruled that the patient was not mentally incapacitated and therefore could discontinue treatment.

219

Id. Id. at 1539-40. The court went on to state that, even if the Rehabilitation Act applied to the types of rights that the plaintiff claimed were violated by the hospital and physician, summary judgment was proper because the plaintiff did not show that the deceased patient was treated differently from any other patient in the hospital or that the defendants would have treated a "competent patient" differently. Cf. Gerben v. Holsclaw, 692 F. Supp. 557 (E.D. Pa. 1988) (suit by parents and estate of infant born with cystic fibrosis against attending physicians and hospital for treating infant in aggressive and intrusive manner, which caused infant pain and only extended her life a few months, dismissed because the alleged handicap of not being a conscious adult, whose treatment decisions the defendants would have followed, does not qualify as a handicap under the Rehabilitation Act). To deny handicap status solely on the basis of being an infant appears sound because a contrary conclusion would mean, in essence, that all persons under the age of 18 are handicapped under the Rehabilitation Act.

220

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after benefit in this instance is not to be subjected to CPR that is futile and extremely intrusive. It can be shown that the patient was "otherwise qualified" for this benefit because, but for the patient's handicapextremely poor medical condition—the futile treatment would not have been administered. Proof that the patient was excluded from this benefit solely by reason of the patient's handicap would be based on the fact that patients whose medical condition is better are not subjected to futile CPR; for these patients, CPR constitutes beneficial treatment.


6. Contract Liability The physician who provides futile treatment to a patient may be liable to the patient for any costs that the patient, the patient's family, or the patient's insurer incurs as a result of that treatment. The physicianpatient relationship is normally not viewed in the context of a contractual relationship, but there is no legal or ethical reason for it not to be.221 Unlike most other services that individuals purchase, the purchase of physician services differs significantly because the patient-purchaser does not have expertise to know precisely what services should be purchased. Consequently, it is an implicit term of the "contract" that the physician is to provide all medical services necessary to treat the patient's condition. Conversely, the physician is not required to provide any services that are unnecessary or ineffective. By furnishing futile treatment, the physician's conduct may breach the contract thus entitling the patient to recover from the physician any monetary loss sustained as a result of the physician's breach. This would include all of the hospital costs incurred by the patient or the patient's insurer as a result of the futile treatment. In Estate of Leach, the family of the deceased patient sought to recover the medical expenses that were incurred during the period that the patient was in a chronic vegetative state on life support systems. The family was allowed to proceed to trial against the physicians to recover extraordinary unnecessary medical expenses paid for the treatment of the patient.222 The court left open the possibility that, "under some facts," ordinary and necessary medical expenses also could be recovered.223 221

222

223

See Pizzingvilli v. Van Kessel, 100 Misc. 2d 1062, 470 N.Y.S.2d 540 (1979) (upholding a cause of action against a physician based on breach of contract even though the physician used the highest possible professional skill). Accord ARIZ. REV. STAT. § 12-562(C) (1982) ( " N o medical malpractice action based upon breach of contract for professional services shall b e brought unless such contract is in writing."); Guilmet v. Campbell, 385 Mich. 5 7 , 188 N.W.2d 601 (1971); Depenbrok v. Kaiser Found. Health Plan, Inc., 75 Cal. A p p . 3d 167, 144 Cal. Rptr. 724 (1978). Leach, 469 N.E.2d at 1054. The plaintiffs claimed that the physicians administered experimental drugs to the patient. Id.

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These expenses could not be recovered, however, if the patient were placed on the life support systems as part of the initial CPR, before lapsing into a vegetative condition, because treatment would then have been authorized under the doctrine of implied consent.224


7. Attorney's Fees Some courts have granted patients the right to recover attorney's fees from physicians who initiated or continued to provide treatment against the patient's wishes. In Bouvia v. County of Los Angeles (Bouvia II),225 the California appellate court held that as a result of the earlier litigation by Ms. Bouvia (Bouvia I), the patient was entitled to an award of attorney's fees under the private attorney general theory because the outcome of the litigation advanced more than her personal interest and benefitted society in general.226 This holding is interesting in light of the fact that, in Bouvia I, the plaintiff had not been successful on any of her damage claims. CONCLUSION Thirty years have passed since CPR was first implemented as a medical procedure in American hospitals. During that time, the use of CPR has grown to where the procedure is now routinely employed in hospitals regardless of the patient's underlying illness and/or ability to survive the procedure. This article points out that a major underlying reason for implementing CPR in these cases is the increasing reluctance of physicians to make unilateral decisions regarding administration of futile care and to relinquish medical judgments to the demands of the autonomous patient. Among these judgments are patients' preferences to receive treatments that are of no medical benefit. A patient, however, does not have a legal or ethical right to futile care, including futile CPR. The absence of such a right precludes any discussion by the physician of useless therapy with the patient under the informed consent doctrine. The position put forth in this article is not an attempt to undermine the common-law doctrine of informed consent and wrest from the patient rightful control of treatment decisions but, rather, to enunciate clearly the 224 225

226

Id. at 1053. 195 Cal. App. 3d 1075, 241 Cal. Rptr. 239 (1987) (cited as Bouvia II). See also Foster v. Tourtellotte, 704 F.2d 1109 (9th Cir. 1983). Bouvia II, 241 Cal. Rptr. at 244-45. See also Battling v. Superior Court, 163 Cal. A p p . 3d 186, 209 Cal. Rptr. 220 (1984). In Bartling, the hospital and physicians refused a competent adult patient's request to be removed from a respirator. The court remanded the case to the trial court to determine whether the patient's family was entitled to attorney fees under a private attorney general theory.


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limits of this control in specific situations. In doing so, much of the prevailing indecision and doubt that confound many physicians today regarding their role in the decision-making process may be lifted. The physician's exclusive right to determine what beneficial treatment is available to meet the patient's needs is supported by the great weight of authority. A physician's potential civil and criminal liability for unilaterally entering a DNR order when it has been determined that CPR would be futile will be minimal so long as the decision is made in good faith and is based on prevailing medical standards that identify patient profiles for whom CPR will be futile. Any civil liability would most likely arise only if the physician is negligent in diagnosing the patient's condition or, even though the diagnosis is correct, if the physician incorrectly determines that the patient fits one of the patient profiles. To minimize such liability, it is recommended that hospital medical staffs adopt the following guidelines concerning unilateral DNR orders when CPR would be futile:

1. If the attending physician determines that CPR would be futile, the physician must obtain a concurring opinion from another physician before entering a DNR order. 2. The attending physician is responsible for writing the DNR order and placing it in the patient's chart. The physician should document the factors leading to the decision to issue the DNR order. 3. The attending physician is responsible for ensuring that active medical care of the patient continues at the level considered appropriate. A DNR order does not mean the withdrawal of other treatment and care. The possibility that resuscitation may not be appropriate should be considered as a positive and prospective aspect of medical care. 4. The physician should not combine categories of patient care with resuscitation status. The physician's unilateral decision should always be tied to the determination that CPR would be futile. 5. After the DNR order has been issued and entered on the patient's chart, the attending physician should present a balanced, understandable analysis of the clinical findings, the prognosis, and the absence of any options to the patient and/or the patient's family.

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6. The DNR order should be written carefully and explicitly, so that it is understood to mean no cardiopulmonary resuscitation. An example of such an order follows: This patient has been diagnosed with , for which CPR has been shown not to be effective. In case of cardiopulmonary arrest, CPR should not be performed.


7. No unilateral DNR order should be permitted if it is based on an assessment of the patient's quality of life, rather than a determination of futile treatment. Informed consent of the patient or a family member is required in this sort of situation. 8. Nurses and other health care providers involved in the patient's care should be informed of the DNR order and the reasons for it. If they disagree with the decision, and discussion does not resolve the disagreement, those individuals who feel they cannot carry out the order in good conscience should be allowed to withdraw from further care of the patient. 9. The DNR order, along with the patient's condition and prognosis, should be continually reevaluated. 10. A committee of the medical staff comprised of physicians who treat terminally ill patients should adopt specific profiles of patients for whom CPR is futile based on recognized medical studies. As new studies that redefine futile care are published, the committee should review these studies and make changes to the patient profiles as the studies indicate. The New York statute requiring the patient's or a surrogate decisionmaker's informed consent prior to entering a DNR order, when it has been determined that CPR will be futile, clearly abrogates the physician's legitimate and historical authority to decide what medical treatment, if any, is appropriate for the patient.227 The statute establishes an ill-conceived legislative precedent in which physicians will diagnose patients' conditions and patients then will have the right to choose from among a variety of statutorily created treatment options, which may or may not be medically accepted. The legislative history of the statute and its stated purpose do not 227

N.Y. PUB. HEALTH LAW §§ 2960-2978 (McKinney 1990). Paragraph one of section 2962 contains the essential part of the statute and reads as follows: "Every person admitted to a hospital shall be presumed to consent to the administration of cardiopulmonary resuscitation in the event of cardiac or respiratory arrest, unless there is consent to the issuance of an order not to resuscitate as provided in this article."

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articulate any public policy in support of this expanded requirement of informed consent and there is no constitutional or common-law basis to support the requirement.228 This article argues that a patient does not have a legal or ethical right to demand futile care and that a physician should not incur any civil or criminal liability for failing to provide futile care. Decisions as to what medical treatment will benefit the patient's condition should be left to physicians, because they alone possess the knowledge to evaluate the effectiveness of any treatment options. 228

Id. § 2960.

Public challenge of physician authority.

Do-Not-Resuscitate (DNR) Orders and Consultants' Willingness to Perform Invasive Procedures.

Misconceptions about 'do-not-resuscitate (DNR)' orders in the era of social media.

TRIAD IV: Nationwide Survey of Medical Students' Understanding of Living Wills and DNR Orders.

A comparison of family needs based on the presence or absence of DNR orders.

Bioethics in Practice: Unilateral Do-Not-Resuscitate Orders.

DNR in the OR.

Physician Orders for Life-Sustaining Treatment for nursing home residents with dementia.

Physician orders for life-sustaining treatment and emergency medicine: ethical considerations, legal issues, and emerging trends.

Use of the Physician Orders for Life-Sustaining Treatment among California Nursing Home Residents.

Physician orders for life-sustaining treatment (POLST): lessons learned from analysis of the Oregon POLST Registry.

Authority.

DNR, but business as usual.

Specific Physician Orders Improve Pain Detection and Pain Reports in Nursing Home Residents: Preliminary Data.

Nurses' knowledge and comfort levels using the Physician Orders for Life-sustaining Treatment (POLST) form in the progressive care unit.

Effects of computerized physician order entry on medication turnaround time and orders requiring pharmacist intervention.

The Role of Advanced Practice Registered Nurses in the Completion of Physician Orders for Life-Sustaining Treatment.

Evaluating newly acquired authority of nurse practitioners and physician assistants for reserved medical procedures in the Netherlands: a study protocol.

DNR or CPR--the choice is ours.

DNR in the OR: further questions.

Implementing a DNR policy: promise and perils.

IRB Authority.

Optimal autoregressive orders for myopathic electromyograms.

Why not standing orders for general practice?