Attorneys have learned the importance of including health care advance directives – health care proxies and “living wills” (at my firm, we use the term “health care declaration”) in a client’s estate plan. But that by itself may not be sufficient. Attorneys need to be aware of the problem of hospitals and physicians failing to comply with a client’s clearly stated wishes about her healthcare treatment, particularly at the end of life.
How serious is this problem? Very serious. Patients’ wishes are not always honored, even without a health care declaration. The directions of an agent acting under a health care proxy who is making decisions in accordance with the client’s health care declaration are often ignored, and there are times when the client may receive unwanted treatment. The courts have not been willing to punish hospitals and physicians who provide unwanted treatment – “erring” on the side of life is usually not viewed as a compensable wrong, notwithstanding Judge Benjamin Cardoza’s words in the U.S. Supreme Court decision in Schloendorf v. Society of New York Hospital, 211 N.Y. 125 (1914:
Every human being of adult years and sound mind has a right to determine what shall be done with his own body…
This problem also arises because, in states that have a “living will” statute (which New York does not have) that has restrictive statutory language, that effectiveness occurs only when the patient has a “terminal condition” or where “death is imminent.” In Florida, Estelle Browning left specific written instructions not to give her tube feeding. Because she was in a vegetative state, but death was not imminent, her living will was ignored, and she was kept alive against her wishes. Guardianship of Browning, 568 So.2d 4 (1990).
This is a national problem, particularly in New York, where court decisions have made it almost impossible to successfully sue healthcare providers when they fail to respect the expressed wishes of patients near the end of life, and the patients suffer as a result. Until recently, the 2009 case, Cronin v. Jamaica Hospital Medical Center, 60 AD 2nd 803 (2009), a lawsuit for medical malpractice and negligence, best summarized New York law. The Appellate Division, Second Department, upheld a lower court decision dismissing the case of a 72-year-old man admitted to Jamaica Hospital Medical Center, suffering from various illnesses, was resuscitated on two occasions, allegedly in violation of two do-not-resuscitate orders that had been signed by members of the decedent’s family and approved by hospital physicians. On June 9, 2004, following the second resuscitation, two weeks after the decedent would have died if the DNR order had been respected, he was removed from life support systems and died. The suit charged that he survived for about a month in the unresponsive state that he had sought to avoid. “They made the end of his life horrible and painful and humiliating,” his widow said. “What’s the sense of having a living will if it’s not honored?” In dismissing the case, the trial court judge wrote that the Plaintiff was asserting a claim for “wrongful living” and that no such claim existed under the law. The Appellate Division agreed.
And in February of 2021, Lanzetta v. Montefiore Med. Center, 71 Misc.3d 508 (2021), another suit to recover damages for the pain and suffering experienced by a man who lived 20 days after being administered certain life-sustaining medical treatment, including multiple doses of antibiotics and intravenous fluids, in contravention of both the terms of his living will, and the directives of his health care agent were dismissed. The judge wrote, “Plaintiff’s claim is, in effect, one for wrongful prolongation of life. Such a claim is neither cognizable under New York’s common law nor recognized by statute.”
But the law is changing, as evidenced by the 2017 New Jersey case, Koerner v. Bhatt, where the trial court judge held that a woman could sue her deceased mother’s health care providers for resuscitating her against her clearly stated instructions after she went into cardiac arrest. The patient lived for several months in a “terrible state.” The case was settled for a nondisclosed amount, so there was no subsequent appeals court decision.
However, a 2022 New York decision of greater significance is the Appellate Division decision in Greenberg v. Montefiore, 205 A.D.3d 47), which held the hospital liable for damages for causing pain and suffering. The patient, a physician, had signed a health care proxy and a living will and had completed a MOLST form. These documents were in his hospital chart, as were clear notations that he was “DNR, DNI, no feeding tubes, no antibiotics, no IV fluids, and see MOLST in chart.” These documents were ignored.
Justice Gesmer, writing for the court said:
“… I find that the holdings in … (citing other prior decisions) … do not bar Plaintiff from proceeding with the medical malpractice claim set forth in the complaint on the theory that the failure to follow decedent’s directives was a departure from the standard of care.” (205 A.D.3d 52]
Because the decision is not established law in all judicial departments in New York (or in other states), there is a need to clarify New York law to require healthcare providers to comply with clearly expressed patient wishes and permit such lawsuits. Assemblyperson Richard Gottfried introduced A bill in the New York 2021 legislative session to require such compliance (A.250 2021) that did not pass. A similar bill was introduced in 2022 and again re-introduced in the New York legislature in the 2023 session for consideration but did not pass.
What can be done to ensure compliance with patients’ wishes?
At Pierro, Connor & Strauss, we have developed an approach to deal with this issue by including some strong language in our health care declaration that states:
Enforcement of My Directives
It is my intention that my wishes, as evidenced by this document and my agent’s instructions, be honored by everyone, including my family, friends, courts, physicians and all others concerned with my care. I expect all such persons to be legally and morally bound to act in accord with my wishes, as expressed on my behalf by my agent. If any hospital or other institution or any physician, nurse or other health care personnel refuses to obey my wishes as set forth herein, I hereby direct my agent to take one or more of the following actions: (1) commence suit against such institution and/or personnel for all hospital costs, drugs, medical expenses and all other damages flowing from such refusal, including my pain and suffering, (2)not to pay bills for unwanted services from any such health care provider, (3) file objections with Medicare, Medicaid and any private insurance company for payment of such charges and (4) file complaints against such providers with appropriate state regulatory agencies and licensing and professional associations. Assault and battery charges should also be seriously considered. I request, but do not direct, my agent acting from time to time to consult with the persons I have nominated as successor agents to advise and support the acting agent in his or her responsibilities and decision making.
We also empower a client’s agent appointed in a property Power of Attorney by including a provision that allows the agent to provide funds to the health care agent so that she can hire an attorney to enforce compliance with the patient’s wishes.
Clients should also ensure they provide a copy of their advance directives with the physician, discuss their views regarding honoring the patient’s wishes, and bring a copy of the advance directives when admitted to a hospital for treatment.
The above steps will make compliance with the client’s wishes more likely.
When does a health care directive become effective?
Answer: when the patient has lost the capacity to give informed consent. For health care decision purposes, a person lacks such capacity when she is unable to understand the illness, the nature and benefits of the proposed treatment, and the risk of accepting or refusing it.
Several states impose restrictions on the use of living wills. In many states, the statutes say a living will may be used only if the patient has a “terminal condition”; in some states, death must be “imminent.” The wording of these statutes can make the effectiveness of a healthcare declaration less meaningful. For example, a person with advanced Alzheimer’s disease or totally incapacitated from a stroke might not be deemed “terminal,” so the proxy or health care declaration may not be considered to be in effect. And the patient’s death may not be deemed “imminent.” Statutory language such as this is unfortunate and probably not binding. Under the Cruzan decision 497 U.S. 261 (1990), the U.S. Supreme Court held that a patient has the right to refuse treatment whether in a terminal condition or death is “imminent” or not. Since New York does not have a living will law, there is no such legal limitation. However, many New York living wills are poorly drawn and include such wording. And because a client may at some time move to a state that imposes such restrictions, the living will should state that the client’s wishes are to be binding “even if I am not in a terminal condition and even if my death is not imminent.” Be precise in the language, and do not include wording such as the client not wanting “heroic measures.” Is a heart transplant “heroic” or a routine medical procedure today?