 On behalf of the McLean Center, I'm delighted to welcome you to today's lecture in our seminar series on ethical issues and end-of-life care. I just want to call to your attention that our talk today will be the final talk of the winter quarter. There will be a two or three week break and then we will resume the seminar series on Wednesday, April 1 with a talk from Dr. Savitri Fedsen on ethical issues in discontinuing LVADs, left ventricular assist devices. It's now my pleasure to introduce today's speaker, Professor Nadia Sawicki. Professor Sawicki is an associate professor of law at Loyola University in Chicago. Prior to joining Loyola in 2009, Professor Sawicki was the inaugural George Sharwood Fellow at the University of Pennsylvania Law School. The George Sharwood Fellowship at Pennsylvania is part of the law review and supports scholars in legal academia and funds two years of research, writing, and teaching. Professor Sawicki received both her JD and master's in bioethics from the University of Pennsylvania. After graduation, she clerked for the Honorable J. Curtis Joiner of the U.S. District Court for the Eastern District of Pennsylvania and practiced law with Wolf Block Shore and Solace Cone in Philadelphia, while also serving as a lecturer in history and sociology of science at the University of Pennsylvania. Professor Sawicki has taught courses on constitutional issues in health law, bioethics in the law, advanced care planning, and client counseling. Her research is focused on legal responses to the ethical conflicts that arise in pluralistic societies, particularly with regard to informed consent, reproductive rights, conscientious objection, and end-of-life care. Today, as you see behind me, Professor Sawicki will speak to us on the topic of tort liability in end-of-life care. Please join me in giving a warm welcome to Professor Sawicki. Thank you so much for having me. It's a pleasure to be here at the McLean Center today. So I'll be speaking about tort liability in end-of-life care. As you well know, clinical challenges at the end of life are often about when to say we're done, about how far to go in treating patients who are unlikely to survive or who are unlikely to recover to such a level of functioning as they or their families would hope for. Now, as a legal matter, patients and their families typically have the ultimate say in decision-making. Physicians and other health care professionals serve a vital role in guiding those decisions and making recommendations based on their professional expertise. Having seen patients in these kinds of conditions many times before, physicians have a sense of accurate and realistic prognosis, whereas hopeful families just see the patient before them. So in these cases, physician decision-making is inevitably tinged with concern about legal liability for withdrawing care that they deem futile. Evidence shows that in many, if not most cases of futility conflicts, health care providers and institutions ultimately do continue to provide treatment requested by families, even if this violates their own professional convictions about the ethical practice of medicine. And this is incredibly troubling. Physicians ought not be in a position where the threat of legal liability causes them to violate their own ethical principles of beneficence, non-maleficence, and respect for autonomy. So my goal today is to provide some legal background to explain the fact that all of you probably understand very well that health care providers are more likely to face liability for withdrawal of life-sustaining treatment than for providing it against a patient's wishes. Just as a caveat, this is not legal advice. This is background information. In any situation, you should certainly consult with your own institutional counsel, but I'm hoping to give you a bit of understanding as to where we are today and where we might be going in the future. So while physicians have long recognized that patients can suffer harm when they're provided with unwanted life-sustaining treatment, American law hasn't really recognized this, or at the very least there's a contradiction in how law treats these cases. It recognizes that patients have a right to medical self-determination and this includes the right to request withholding or withdrawal of life-sustaining care. But tort law has a principle that life is not a legally compensable injury. So in situations where a patient's rights are violated, they are not traditionally awarded an opportunity for recovery. So while this has been the traditional perspective of American tort law, I'd like to show you that law's perspective on this may be slowly changing. At least in the case of patients with advanced directives or some other type of guidance regarding their preferences for life-sustaining care, some courts are more willing than they used to be to recognize that a patient can, in fact, be harmed in a legally compensable way by the provision of unwanted medical treatment. Now, from the medical profession's perspective, I recognize there is certainly a downside to this because it potentially exposes providers to additional liability in end-of-life care contexts. But I will offer hopefully a positive conclusion that there is an upside. By recognizing that patients can be harmed as much by receiving unwanted care as by having requested care withdrawn, courts are more effectively balancing tort law incentives. And in a sense, with the threat of liability more balanced on either side, you as physicians should feel encouraged to do what you think is best in accordance with professional ethics and the standard of care rather than worrying that legal risks are pushing you in only one direction. So here's a bit of a roadmap for where we'll be going today. First, I will talk a bit about the frequency at which health care providers and institutions provide unwanted or futile treatment, especially in situations where families are requesting it. I'll talk a bit about the reasons why such treatment is provided even against health care professionals' better judgment and ethical convictions. I'll explain the tension in the law between recognizing patient rights to request withdrawal of treatment while at the same time not allowing them to recover if those rights are violated. I'll discuss new legal developments showing that this may slowly be changing and I'll end with some conclusions. So here, just so you know, I'm going to be focusing on cases where life sustaining treatment is being provided in violation of a patient's prior wishes or advanced directives. But some of this evidence and some of this information overlaps a bit with situations where there's no evidence of patient wishes and the family is requesting futile care. So it's clear that health care providers provide arguably futile care against their better judgment in many situations because family members of the patient are requesting this care. And there's quite a lot of research demonstrating this fact. A 1993 survey of almost 500 full-time faculty at a university medical center found that where therapy-specific advanced directives aren't supported by surrogate requests, up to 30% of physicians are unwilling to withhold less serious interventions that the advanced directive asked to withhold. So on a positive note, 98% of providers said they would withhold mechanically assisted ventilation in accordance with an advanced directive. But when it came to less intensive interventions like IV fluids, antibiotics, etc., more physicians were willing to provide the care even against the patient's prior wishes. Another study out of 2005 out of the West Virginia Medical Journal found that 40% of physicians would override a patient's advanced directive in response to pressure from a surrogate. A 2008 study of about 400 professionals and staff in a variety of health care contexts, hospitals, hospice, living, etc., said that in 63% of cases where advanced directives were not followed, the reason was conflict with family. And then finally, a study of about 400 attendees of a CME event at the Mayo Clinic in 2012 found that a quarter of health care providers would not honor a patient's advanced directives if the spouse objected to this. Now, this is not limited to cases of family opposition. Research has long demonstrated that health care providers often provide care and violation of patient wishes even in the absence of family pressure. Many of you are probably familiar with the support study, a study of over 9,000 seriously ill patients admitted to five academic medical centers. This took place between 1989 and 1994. The study was testing a variety of interventions to improve compliance with end-of-life care directives. It found that health care providers were only moderately better than chance at understanding patients' preferences. So when patients had a preference to forego CPR, only 46% of physicians accurately understood that. When patients said they did not want CPR, only about half of physicians actually wrote a DNR to that effect. And even in situations where specific health care directives were present in the chart, care provided was potentially inconsistent with those instructions in over half of cases. More recent research, 1995 study of ICU physicians found that 34% of physicians would continue life-sustaining treatment despite patient or surrogate wishes that it be discontinued. 2004 study found that in 65% of cases, clinicians deviate from treatment preferences. Again, some of this information, it's not clear whether it's provision of unwanted care or withdrawal of requested care. Pennsylvania has an administrative agency that is dedicated to patient safety that collects patient complaints and patient safety reports. And it found that between 2004 and 2008, almost a quarter of the patient safety reports involved unwanted interventions. And most notably, a 2012 study, it was an online survey of over 10,000 physicians found that 20% of doctors would defibrillate a patient with a clear DNR order. Now again, we don't know the context under which these questions were asked and the context in which all of this occurred, but it's definitely evidence of a clear trend. So what are the reasons why healthcare providers and institutions provide care that is either unwanted by patients or could be deemed futile by the healthcare provider? Well, there are a variety of reasons. The one I'm going to be focusing on obviously is the fear of liability because physicians know that they're at greater risk of liability for wrongfully withdrawing treatment than for wrongfully providing it. Beyond the threat of liability, there are a variety of concerns, miscommunication, misunderstanding, failure to have advanced directives or patient instructions reflected in the chart. There are questions about the applicability of an advanced directive. So for example, if an advanced directive is not recent, healthcare providers may be cautious about following it. There may be questions about whether the advanced directive has kicked in legally. I'll talk in a bit about statutory mandates about advanced directives that provide the advanced directive only kicks in in cases of say terminal illness, irreversible coma, et cetera, et cetera. So healthcare providers might be concerned that those conditions aren't applicable. Some physicians have ethical opposition to withdrawal of life sustaining care as a general matter. And there are also concerns about essentially psychological and social discomfort with having conversations with families about the withdrawal of care, about the quality of life. Those are extremely difficult conversations to have and some healthcare providers have reported that that influences their decisions. Now going specifically to the fear of liability, this was a survey of about 400 attendees of a Mayo Clinic CME and 52% agreed that the risk of liability is lower when you're maintaining someone alive against their wishes. Then when you mistakenly fail to provide resuscitative efforts. The survey, the study provided these physicians with a variety of different scenarios. And in one scenario where there was family conflict, a spouse's request for continued care, physicians who failed or who reported that they would fail to honor an advanced directive in that scenario. 77% they were strongly influenced by the spouse's opposition and 63% said they were strongly influenced by the fear of liability. So there's quite a bit of evidence to this effect. A more recent study of about 5000 ER physicians said that more than half make decisions about resuscitation because of fear of litigation or professional criticism. 56% of these ER physicians reported that in the past three years they have attempted more than 10 resuscitations despite expectations that that resuscitation would be ineffective or futile. And the vast majority say that while ideally legal concerns would not be impacting their practice, in fact this is unfortunately the case. Finally I'd like to end on a somewhat earlier study in the American Journal of Respiratory and Critical Care Medicine that looked at a variety of reasons why health care providers fail to comply advanced directives. This study found that 34% of ICU physicians would continue life sustaining care even despite a patient's or a surrogate's wishes. Now the most significant reason that was identified in this study for continuing life sustaining treatment was the physician's concern that the patient in that case still had a reasonable chance of recovery. But many of the other concerns expressed by physicians dealt with the fear of liability particularly in the case of family conflict. Almost 20% were concerned about malpractice litigation, almost 15% had general concerns about illegality, 5% were specifically instructed by their legal counsel not to withdraw treatment, and then there were generalized concerns about family opposition. And when it comes to reasons that health care providers oppose providing futile or unwanted care, I'm not going to get into too much detail because you're probably well familiar with these professional and ethical commitments. But I do want to briefly highlight how the four general principles of biomedical ethics might apply in this situation and why they would drive many health care providers to believe that withdrawal of care is in the patient's best interests. First from the perspective of beneficence and maleficence, futile treatment doesn't improve patients' lives, it merely prolongs their lives. This is not a good to the patient and can often impose additional pain and suffering that is harmful to the patient. From the perspective of autonomy, if we have evidence that the patient opposes ongoing care, again either through an advance directive or some other documentation, and the family is requesting care, the health care provider is surely concerned that following the family's wishes would violate the patient's autonomy. And finally, this is a less significant concern but worth mentioning concerns of justice and allocation of resources, providing futile or unwanted care uses resources that might be better suited to treating patients who have better chances of recovery or are in greater need of bad care. Now, while physicians have recognized and health care institutions recognize that patients can in fact be harmed by the provision of life sustaining treatment, law has not generally recognized this in any tangible way. So there's a bit of a contradiction in the law that I mentioned earlier. While recognizing that patients have rights to self-determination, law has traditionally held that ongoing life, even unwanted life, is not an injury. So patients can't recover for rights violations in that context, at least after the fact. So I'll outline a variety of the legal sources establishing patient rights to self-determination at the end of life. First, many of these rights were initially established through state court rulings in the 1960s, 1970s, and 1980s, finding that patients have rights either as a matter of constitutional law or as a matter of tort law, the right to be free from unwanted touching. Second, the right to be free from unwanted touching, battery, found that patients have rights to request withdrawal or withholding of life sustaining treatment. This issue came before the United States Supreme Court in 1990 in a case called Cruzan. This was more of a case about procedure than about substance, but it's worth mentioning. Missouri had a statute that allowed healthcare providers to withdraw life sustaining treatment if there was clear and convincing evidence of the patient's wishes to that effect. And the patient in that case, Nancy Cruzan, was in a persistent vegetative state. Her family requested withdrawal of treatment, and that withdrawal of treatment did not occur because apparently there was no clear and convincing evidence. So the family brought suit challenging this clear and convincing evidence requirement. And the court said, while patients have a right to self-determination, when that patient is incompetent, a state can impose procedural standards to make sure that decision making is in accordance with the patient's interests, and it upheld Missouri's clear and convincing evidence standard. Now, many people cite the Cruzan case as establishing a constitutional right to avoid life sustaining treatment. The case didn't exactly do that. It assumed for the purposes of the case that a competent patient would have a constitutionally protected right to refuse life sustaining treatment, but it did not officially decide the issue. Now, in terms of federal law, we have a 1990 law called the Federal Patient Self-Determination Act, which applies to facilities that receive Medicare and Medicaid funding, essentially any facility that accepts Medicare and Medicaid patients. And it's a generalized statute that requires that these healthcare institutions provide patients with notice of their rights to establish advance directives, their right to appoint surrogates, their right to refuse treatment, and also to provide patients with information about hospital policies and state laws regarding the refusal of life sustaining treatment. It also imposes requirements upon the institution to document advance directives in the patient's chart and have procedures for following those advance directives. Now, this federal law is set as a condition of participation in the Medicare and Medicaid programs. So if an institution violates the provisions of this law, the penalty, if those violations are egregious, are withdrawal from the Medicare and Medicaid program. There's no individual liability, for example, a patient who believes that a hospital hasn't satisfied this standard can't bring a private right of action and collect for recovery. Finally, there are a variety of state laws, every state has laws that establish standards for surrogate decision making and advance directives. Before getting into the details of those state laws, I want to mention briefly the Uniform Healthcare Decisions Act. This was a model act proposed in 1993 by the National Conference of Commissioners on Uniform State Laws. This law was intended to create some sort of uniformity among state end-of-life care laws. It wasn't really adopted by every state because by that point, many states had their own laws, but some of these provisions are in fact reflected in state laws. For example, the Uniform Healthcare Decisions Act provided that any adult can have an advance directive that needs to be documented in the chart. That if there is no advance directive, a statutory surrogate may make decisions on the patient's behalf and the preferred way of making decisions is based on a substituted judgment standard. If there's no evidence of the patient's wishes, then the surrogate can make decisions on the best interests of the patient's standard. The Uniform Healthcare Decision Act also provided that physicians can refuse to comply with an advance directive either for reasons of conscience or due to concerns about futility. The most significant aspect of this Uniform Act, and this is something that I'll talk about in a second, is reflected in state law, is that it provided immunity for healthcare providers and institutions making end-of-life decisions who act in good faith and in accordance with generally accepted healthcare standards. The only liability provisions in this law, and again some of this is reflected in state laws, is very limited monetary liability of $500 or $1,000 for intentional violations of patients' advance directives. So every state has its own specific laws on how to deal with these issues. We've got post-laws for physician orders for life-sustaining treatment, which are increasingly developing in a variety of states. There are family consent and surrogate laws, which provide a statutory list of who can make decisions on a patient's behalf. There are laws allowing patients to establish healthcare powers of attorney, delegating their decision-making power to someone else. Sometimes those laws cabin the types of decisions that the healthcare power of attorney can make. Then we've got state advance directives and living will laws, which allow a patient to write and advance directives, but those laws are also cabin. They have a variety of triggers from state to state. As I mentioned earlier, sometimes an advance directive will only be legally binding and effective if the patient is in a terminal condition or a persistent vegetative state. So there are a variety of situations where a patient may be incapacitated and unable to make decisions, but the advance directive isn't legally binding. Some states like Illinois also have other limitations, for example, that advance directives can't be used to request withdrawal of nutrition and hydration when it's life-saving nutrition and hydration. Illinois law and the law of other states also says that advance directives are not applicable if the patient is a pregnant woman. So there's a variety of variations from state to state. These laws typically provide immunity. Again, usually there's no liability for healthcare providers who act in good faith and in accordance with generally accepted healthcare standards. Some states offer even stronger immunity, and I'll touch on that in a bit. Then in terms of liability or enforcement, about 15 states classify disregard of advance directives as a form of unprofessional conduct. Seven provide for a civil cause of action. Four provide for a criminal cause of action. But there's no evidence that when healthcare providers violate advance directives, at least in terms of withdrawing unwanted treatment against a patient's wishes, there's no evidence that these laws specifically are being enforced. Now, a physician who believes that a family is requested for treatment, violates the patient's wishes, violates the patient's advance directives, is probably going to be successful in obtaining injunctive relief. So injunctive relief is a judicial declaration in the heart of the conflict about the legality of an act. It orders someone to either do or not do an act. So essentially while in the course of the conflict, a healthcare provider can go to a court and say, give me the authority to withdraw life sustaining treatment in accordance with the patient's wishes. And typically it is much easier to deal with these sorts of conflicts ex ante in this way. It's relatively quick. It doesn't impose a threat of liability. So there have been many cases where patients have requested injunctions against the provision of life sustaining care where healthcare providers were not willing to withdraw that care often due to family requests. I haven't been able to find any cases where healthcare providers have gone on patients behalf seeking an injunction as against a family. But there are cases where healthcare providers have gone to court to seek replacement of a family surrogate who is acting against a patient's healthcare wishes. So there's a case out of New York in Ray Levedas from 2008 where a daughter was requesting ongoing life sustaining treatment despite her mother's clear advance directive to the contrary. And the healthcare institution at which the mother was being treated went to court and successfully sought replacement of the surrogate on the grounds that the surrogate was not acting in accordance with the patient's interests. Now traditionally if a patient's rights have been violated and life sustaining treatment has been provided against the patient's wishes, there has been no opportunity for legal recovery ex post. And there are a variety of reasons for this. Common law doctrine which is what I'm going to focus on that life is not an injury. There's statutory immunity which I mentioned earlier in a variety of state laws as well as limitations in the state laws about when advance directive supply. Now the reason I'm focusing more on the common law principle that life is not an injury is because that is the legal principle that is most at odds with understandings of patient rights from an ethical perspective and with physicians ethical justifications for withdrawal of life sustaining treatment. So when patients bring suit, just a word of terminology first, when patients bring suit that life sustaining treatment is being provided against their wishes that's commonly called a wrongful living suit. But it's important to note that a wrongful living suit has to be grounded in an underlying suit for negligence or for battery. It's not really an independent cause of action. One of the earlier cases that dealt with this kind of a situation said a claim of wrongful living is a damages concept just as a claim for wrongful whiplash or wrongful broken arm and must necessarily involve an underlying claim of negligence or battery. So in order to bring these suits patients have to allege either that they have been provided with medical treatment touched without their consent cause of action for battery or that the standard of care has been violated. Now the common law doctrine that life is not a legally compensable injury is derived from earlier cases arising in the 1970s and 1980s dealing with wrongful birth and wrongful life. These are cases at the beginning of life rather than at the end of life. So typically those cases arise when a healthcare provider's negligence allegedly deprives parents of the opportunity to make an informed decision about whether to conceive a child, whether to bring a child to term, whether to have an abortion. And typically in those cases the child is born disabled. So we see this in the case of negligent genetic counseling for example. Now when families or patients in these wrongful birth and wrongful life cases brought suit saying the provider's negligence deprived us of the opportunity to make an informed reproductive decisions, courts traditionally were not willing to step into the philosophical quagmire about the value of life and the harm associated with life with a disability. They essentially said life is not a harm compared to death or non-existence and a patient cannot recover monetary damages in connection with that. And that common law doctrine from the reproductive context has translated into the end of life context. So the earliest or one of the most well-known cases dealing with this is a case called Anderson versus St. Francis St. George Hospital out of Ohio. This was the case of a patient, Edward Winter, who was initially admitted to the hospital for chest pain. He had previously witnessed his wife's deterioration after receiving emergency resuscitation and had had conversations with his physician, which were recorded in a no-code blue in his chart that he did not want resuscitation if he were in that sort of a condition. He was in the hospital, he suffered ventricular tachycardia and a nurse defibrillated him. After that, one day later, he suffered a stroke, which partially paralyzed him, and he continued living for two years in a state of partial paralysis and brought suit saying the resuscitation was against my wishes and as a result, I am living for two years in a state of disability that I would not have wanted. And the Supreme Court of Ohio, and this is absolutely consistent with how most courts have dealt with this at least prior to the 2000s, the court said there are some mistakes, indeed even breaches of duty or technical assaults, for which there simply should be no monetary compensation. The court said if he suffered physical injury directly from the resuscitation, so broken ribs from chest compressions, burns from defibrillation, he could recover monetary damages for that, but for the continued life itself, he could not recover. Here's another quote from a New York case, the status of being alive does not constitute an injury. These are just two cases, but they are reflective of a wide variety of cases establishing the same principle. One other thing to mention is the statutory immunity that I mentioned earlier, state statutes that immunize healthcare providers from suits if they fail to comply with a patient's wishes, and I'm not sure whether, there we go, I wasn't sure if I had the slide there or not. And I mentioned that some states have even broader immunity provisions, so both Texas and California, I'm going to focus on the California law here, provides that a healthcare provider who fails to withdraw life sustaining treatment is not going to be criminally liable, civilly liable, or liable under professional disciplinary action. There's no specification about acting in good faith, there's no specification about acting in accordance with professional standards, but these statutory immunity provisions together with the legal principle that life is not an injury lead to an imbalance in liability, right? And it's an imbalance that is very much at odds with the ethical principles that recognize that a patient can be harmed, in fact, by ongoing life sustaining treatment. So there are some changes today that suggest that some courts are more willing to recognize the concept of life as an injury in a way that is more consistent with the values of medical ethics that you all are familiar with. So first in the past 10 years or so, there has been a growth in administrative penalties against healthcare institutions that fail to document patient advance directives or fail to implement them properly. From the patient's perspective, this doesn't matter, the patient doesn't get the recovery, but it demonstrates that administrative agencies are paying increased attention to the harms that can arise from non-compliance with advanced directives. Some courts recognize limited rights to compensation. As I mentioned earlier, if you have direct physical harms resulting from unwanted resuscitation, that is something that you can recover for, broken bones, etc. And an Illinois court, for example, has held that if a patient receives treatments that were unwanted, there is Illinois law that allows the patient to sue to recover those medical expenses, right? Patient doesn't have to pay for unwanted treatment, which seems pretty reasonable, but that is a relatively new development. There have been some substantial jury verdicts in recent years, which, in cases where patients' advanced directives have not been complied with, and those demonstrate both that courts are allowing these claims to proceed and also that juries are amenable to those claims. But what I want to focus on are court decisions, all in the past five years or so, that have been more receptive to the merits of what we call wrongful living claims. So I'll start with this Illinois appellate court opinion from 2011 in a case called SACREZ. This was a patient with lymphocytic leukemia who came to the ER. He had pneumonia, they were worried about deep vein thrombosis, and they prescribed lovinox over the patient's repeated opposition. So this was the provision of treatment against the patient's wishes. The hospital's consent policy indicated that written consent was required for any treatment that poses a risk, and the court allowed a battery claim to proceed. The court said because the patient was provided with this medication against repeated opposition, and there was no written documentation of consent, the patient could have a valid claim for battery. A variety of other courts, again in the past five years or so, have held, and again not holding on the merits that the health care provider is definitely liable, but that the patient could have a valid cause of action, either for traditional negligence, for medical malpractice, for battery, or in some cases for intentional infliction of emotional distress. All of these cases dealt with situations where patients' directives were clear, and the health care providers treated the patient against their will. There have also been a few recent cases where, while not precedential, while not deciding things on the merits, courts have used language that has greater recognition of the harms that patients can suffer when their request for withdrawal of treatment is not followed. Self versus Millyard was a case where a prisoner objecting to the prison's treatment of him, the prison had no good policies for recording advanced directives. They resuscitated this patient against his wishes. Ultimately, the court found that in this case the patient's wishes were not applicable. The DNR didn't kick in, but the court said that it is constitutionally mandatory that a prison have in place reasonable and effective methods of assuring that an inmate's DNR will be honored. Cardoza versus USC, a California case that ran through the courts in 2008 and 2009. This was an interesting case. A patient was injured during surgery for an aneurysm, and developed a toxic infection that resulted in multiple organ failure. The family alleged that the hospital later performed multiple surgeries in violation of the patient's advance directive. There was some confusion about who was the appropriate decision maker for the patient, but it was clear that the patient's advance directive would have opposed these ongoing surgeries. Again, in the end of it, the advance directive the court found didn't kick in because the patient didn't have an incurable condition, but in dicta, a lower court said that even if an agent, a surrogate, is requesting treatment, if that requested treatment is not in accordance with an advance directive, the health care provider isn't entitled to statutory immunity. The statute that says doctors are immune for making these decisions in good faith, the lower court suggested that if the decision that's being made comports with a surrogate's request for treatment, but violates the patient's own wishes, that would not be a source for immunity. So what can we take away from this history? Although medical ethics has long recognized that providing futile care or providing unwanted care can actually harm patients, American law has traditionally not allowed patients and families to recover for these kinds of harms. So as a result, physicians are placed in a very difficult position. They have a one-sided risk of liability. If they withdraw treatment against a family's wishes, they may be subject to a wrongful death lawsuit. But historically, there hasn't been that kind of legal risk associated with providing treatment. So it's no wonder that when a family is insisting on treatment, providers and institutions will offer that treatment even if it is against the patient's directive, or even if it is against the professional convictions of the health care providers. So I've talked about some developments suggesting that courts are increasingly recognizing that patients can in fact be harmed by the provision of unwanted treatment. Now, as I mentioned earlier, at first glance, this may be an unwelcome development for you as physicians. As if you didn't have enough to worry about, you're being exposed to yet another threat of litigation, and it is certainly not my intent to suggest that that is a good thing. But I'd posit that there is a somewhat more positive way of thinking about this as a system of more balanced legal incentives. So the medical profession has recognized the harm that patients can suffer from unwanted care, and American tort law is now finally catching up to what medicine has realized for quite a long time. Now, in an ideal world of no tort liability, imagine you're practicing, there's no threat of being sued at all, you would be making decisions about end-of-life care exclusively on the basis of professional standards and ethical principles. Historically, this has been impossible because of the one-sided threat of liability for inappropriate withdrawal of care. Now that American law is potentially shifting to recognize that the continuation of unwanted care can be illegally compensable harm, this legal imbalance is being corrected in some way. And so in a sense, you're now in a position closer to that ideal world of no liability. You are able to make choices about the provision of life-sustaining treatment based on professional norms, rather than based on a threat of liability that is pushing exclusively from one side. So hopefully this has been informative, given you a little bit of background, and I'm looking forward to your questions. Hi, thank you very much for that talk. I'm wondering if there's any evidence that this slight shift may translate into the reproductive realm, especially with increased legislative interference in the doctor-patient relationship, mandating certain discussions about abortion, etc. Do you think that there's a greater potential for wrongful life cases when physicians knowingly do not disclose information that may result in a termination? That's a great question, and I've done some work on these kinds of suits in the reproductive care context as well. Over time, over the past 40 years, courts have been somewhat more receptive to wrongful birth and wrongful life suits. Obviously this varies quite a lot from state to state. The real difference in the reproductive context tends to be in the amount of damages that patients are allowed to recover if they are allowed to recover at all. So for example, if parents are claiming that health care provider negligence in providing information led to the birth of a child with a disability, there are a variety of damages that they could ask for. They could ask for damages associated with medical treatment in the pregnancy and birth. There are damages associated with the costs of raising a child generally. There are the damages associated with the cost of raising a child with a particular disability. And courts tend to be pretty narrow in the types of damages that they will allow parents to recover. They're not going to allow the parent to recover the cost of raising a child generally, because that again would be inconsistent with the idea that life, the existence of a child, is not an injury. Where there are special damages associated with the disability, some courts are allowing that to recover. In light of the legislative changes in the reproductive care context, those don't touch specifically in that context, but there is certainly uncertainty when you have laws relating to provider conscience and the unwillingness to provide information. So that's an open point of uncertainty. Thank you very much for the talk. Really enjoyed it. In this particular area, so the provision of unwanted care, did you find any actions brought by third-party payers, either in tort or maybe under contract, for paying for any care that was unwanted? So I haven't seen any actions by third-party payers, but that's certainly something that is in the air, so to speak. So for example, in the Jaheim MacMath case, for example, this is obviously a different context, but who should be responsible for paying for life-sustaining treatment for a patient who has satisfied the legal criteria for death? So I'm not aware of the impact on the third-party payers side, but that is a great question. Great talk. Thank you. To follow up on that question, kind of in the cases where physicians provided unwanted care that when the family's and the patient was in opposition and they went along with the family, did the issue of poor documentation in the patient's medical record by physicians have anything influenced that? Do you know, like, is there a trend that the documentation was better that the physician went along with the patient versus the documentation was not there? So I haven't looked kind of systematically at those cases. Many of these types of cases arise in situations where there is some uncertainty about patient advance directives. That said, there are also many clear cases where there's a DNR in the chart and they're resuscitating the patient nevertheless. So I think the situation span all different arenas. Hi. I'm wondering about the liability of a designated agent, particularly if there's a split, say, among family members. And there may be some, you know, vagueness in the AD and maybe the designated agent insists on following the AD to withdraw treatment or does not do it. Would the designated agent, if there's a split among family members, have some liability? So as terrible as it is to be a physician being sued by your patient's family, imagine being sued by your own family for making the wrong decision. So many of the statutory immunity provisions that I mentioned earlier provide immunity from liability, not just for physicians who make these decisions in good faith, but also for authorized surrogates who make these decisions in good faith. So if they can demonstrate that they've made the decision in good faith in accordance with the patient's advance directive, they should be immune from liability and hopefully it doesn't rise to the level of a litigation-based dispute among family. But also, as I mentioned earlier, in situations where a surrogate is clearly not following the advance directives, healthcare providers and families can successfully go to court and have that person replaced. So much of the inappropriate, aggressive care of patients follows from some of the surveys you showed us early in your talk on the fear of physicians about their own risk of liability for what you referred to as wrongful debt. Now, I have a few questions relating to that. Do such suits exist? We know what physicians fear. When I started 40 years ago, 100% of physicians would fear wrongful debt actions. And some of the data you showed suggests 25 to 50 or so percent still do. But do such cases exist? Do they ever go against the doctor? And what in fact are the actual physician risks? It seems to me if you resolve that side, you're in much better position to deal with the inappropriate, aggressive care. If doctors no longer fear, what in my view is likely to be an irrational fear. I'm glad you asked that question. When doing interdisciplinary legal work, whether you're talking to doctors or whether you're talking to other professionals, sometimes the conception that community has about liability is sort of a conception of the law in their minds that doesn't actually reflect what's actually happening on the ground. And I would agree with you that the risk of actually being found liable for wrongful death for withdrawing futile care is lower than many of your expectations might be. Courts dealing with these cases are very careful. These are hugely important cases. They're very fact-specific. They're very fact-sensitive. And there is recognition about futile care being not in accordance with the standard of care in some cases. Some states, for example, Texas, has this advanced directive law that provides a procedural process for withdrawing futile care, sort of up in the air to what extent that is effective. But there's fear of liability and there's fear of litigation. And that, I think, is something that healthcare providers are legitimately concerned about. Even if you know that you won't be found liable if a patient sues you for wrongful death, you're still getting sued, right? Nobody wants to be sued. It takes time. It takes money. It takes emotional and psychological investment. That is the part of the process that many people fear more significantly. And that's something that I can't offer you raise of hope for. There are a lot of such cases, even if they're not settled against the doctor. My understanding was this was an area that malpractice attorneys didn't want to get into because there was no money. No money in end-of-life cases. First of all, the fact is that very few of futility disputes actually end up in litigation. My colleague, Thad Pope, who teaches at Hamlin in Minnesota, has done a lot of research in this area, and says that fewer than 5% of futility disputes are intractable and ultimately lead to decision making in the judicial sphere. Your point about attorneys not being willing to take these cases is a valid one, right? If a family is requesting futile care and says that the care was withdrawn against their wishes, the damages that they're going to recover are somewhat limited, right? Care is futile because typically the patient's life is not going to be that long anyway. Very often in the course of these legal disputes, the patient passes away, and so the issue becomes moot. So in terms of monetary damages for you shortened my loved one's life by 5 days, by a week, by et cetera, that's not significant. Where the potential for damages comes in is where the act is really egregious or intentional. It's about the way in which treatment is withdrawal as opposed to it being withdrawn as a general matter. There's these intentional infliction of emotional distress cases which can result in liability. Are you aware of a large number of these cases or are they a handful? I mean I'm not aware, I'm not a lawyer, I'm not aware of any of these cases. What I don't know of course is how many of these cases get filed. Right. Being adjudicated against the doctor or the healthcare team in an end of life issue. It is a handful of cases, right? You've got 50% of docs still believing that this is their risk, but it's not their risk. Right, but there may still be a risk of being sued and that in many cases, exactly. But that is not just as bad, but it is almost as bad as being sued and ultimately being liable. No, I hate the idea of being sued. I agree with you. Oh, it's not so bad. Yeah, I'm interested in the development of standards of care, specifically CPR as a standard for everyone who dies in the hospital. And part of one of the forces I think was the fear of criminal negligence as the standard was developing, although doctors were developing the standard at the same time they were fearing it. Do you know about cases early on where people were held criminally liable for not applying CPR before the days of DNR? I know that there have been maybe one or two cases of criminal liability in that context as you mentioned early on sort of before the standard of care was established, but that is a total rarity these days.