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On July 18, 1994, Robert Lee Wright Jr. was admitted to the medicine service of Johns Hopkins Hospital, suffering from acute renal failure secondary to AIDS. After receiving a blood transfusion two days later, Wright was found in full arrest. At the direction of a resident, he was resuscitated, intubated, and transferred to the MICU. The team was apparently unaware that there was a living will in the chart at the time that the patient was resuscitated.
Wright’s parents arrived at the hospital after the incident. A physician informed them that it was their decision whether to maintain or withdraw life support. His mother requested that Wright be extubated, sent back to the medicine service, and provided only comfort care. Based on the mother’s direction (not on the living will), Wright was transferred back to the medicine service with a DNR order from the MICU dated July 20. Subsequently, a note on July 21 indicated that Wright’s home health nurse informed the medicine team that Wright had written a living will and had indicated a desire to be a DNR. Wright lay in a coma for 2 days and died on July 30, 1994.
Wright’s living will, executed in February 1993, contained typical language directing that life-sustaining procedures be withheld or withdrawn “If at any time I should have any incurable injury, disease or illness certified to be a terminal condition by two
(2) physicians who have personally examined me, one (1) of whom shall be my attending physician, and the physicians have determined that my death is imminent and will occur whether or not life-sustaining procedures are utilized and where the application of such procedures would serve only to artificially prolong the dying process….”
Allegation: Wright’s mother, as personal representative of his estate, sued Johns Hopkins and the treating physicians alleging, among other things, that the defendants:
1. Negligently administered CPR contrary to Wright’s living will, and negligently failed to reasonably and timely explore and/or inquire as to his intentions regarding resuscitation, resulting in his experiencing “additional unnecessary neurological impairment, pain and suffering and ultimately … a prolonged, painful and tragic death …. ”;
2. Conducted an intentional, nonconsensual harmful and/or offensive touching (i.e., a battery) against Wright when they resuscitated him contrary to the advance directive; and
3. Failed to obtain informed consent (from a parent) by failing to disclose all material information, including the nature of CPR, the probability of success of the contemplated resuscitation and the alternatives, and the risks and consequences associated with the treatment.
Analysis: The Court’s analysis was done in view of Maryland law. Like Florida, Maryland law recognizes a competent adult’s constitutional and common law right to refuse medical treatment. Additionally, Maryland’s statutory provisions regarding the execution of advance directives and the conditions precedent to withholding or withdrawal of life support based on an advance directive (terminal condition, persistent vegetative state, or end-stage condition) are almost identical to those of Florida, except that Maryland requires documentation that death is “imminent” for a terminal condition.
The Maryland Court enumerated the issues presented by the facts and allegations in the case as follows:
1. Does an individual have a cause of action, either under Maryland statute or common law (i.e., case law), for a health care provider’s failure to comply with an advance directive?
2. Were the facts presented sufficient to support a cause of action for negligence, wrongful death, battery, and lack of informed consent?
3. Does a sudden and unforeseen cardiac arrest render an otherwise non-terminal individual “terminal,” establishing a condition precedent to the operation of an advance directive?
4. Under the statute or common law, what measures must a health care provider at an institution take to notify other providers at that institution that a patient has an advance directive?
5. Under the statute, is a health care provider immune from liability for providing life-sustaining procedures to an individual who has directed that such procedures be withheld or withdrawn?
6. Are the damages resulting from the administration of a life-sustaining procedure a compensable “injury”?
7. In an emergency situation, is a health care provider liable for providing life-sustaining procedures to a patient who has made an advance directive if the provider was unaware of the directive, believes that the directive is not operative, or cannot ascertain the patient’s intentions?
In its analysis, the Court determined that the answer to Question 1 was “yes” – there is a cause of action under law for failure to comply with a patient’s advance directive. However, the Court concluded that the answer to Question 2 was “no” – the present facts did not support such an action under any of the theories presented by the plaintiffs (negligence, wrongful death, battery or lack of informed consent). The Court’s conclusion was based mainly on its finding that the patient’s advance directive was never operative because there was no certification by a physician that the patient was in the prerequisite “terminal” condition and in “imminent” threat of death, as required by Maryland law and the terms of the living will itself (cited above). Therefore, even if the physicians had been aware of the living will, in the Court’s opinion it would not have precluded them from resuscitating the patient. Unfortunately, finding that the facts did not support an action meant that the Court did not have to specifically address the other 5 issues listed. Nevertheless, the Court did make a few findings that provide some insight into issues often faced in Florida hospitals. Wright’s mother argued that he was extubated after the physicians realized he had a living will and that they thereby acknowledged that the living will was operative. The Court pointed out that a withdrawal of life support without the conditions precedent noted in the living will (terminality and imminent death) would have been unauthorized. Since the Court found that extubation was done in response to the mother’s request, the court noted that she could not complain of a deviation from the authorization of the living will – clearly indicating that such a deviation (i.e., giving effect to a living will without clear documentation of the conditions precedent) would be actionable. Additionally, it was argued that general comments Wright made previously to an ED physician regarding his desire not to be resuscitated amounted to an oral advance directive. The Court found that such generalized comments, made without witnesses and without a specific medical context, were not tantamount to an oral advance directive. However, citing a Maryland Attorney General Opinion, the court opined that a competent patient could direct the entry of a DNR order by direct communication with a physician. It would be effective if the patient was later incapacitated, despite the fact that it was not an oral advance directive, as long as the request was a “product of informed consent about contingencies in the discrete context of a discussion of a future course of treatment.” In other words, if a competent patient makes an informed decision to forgo resuscitation during a specific hospital episode, regardless of the existence of an underlying terminal condition (or other condition precedent to operation of a living will), later incompetency does not invalidate the DNR. It is an episode-specific informed refusal of care. In this case, the arrest was not an expected outcome of his underlying illness (AIDS), but rather an acute unexpected reaction to the blood transfusion. There had been no discussion about entering a DNR order with his attending during this hospitalization. There is ample case law relating to plaintiff’s lawsuits to require physicians and hospitals to follow an individual’s advance directive. The “wrongful life” type case, such as Wright v. Johns Hopkins is rare and despite strong statutory and common-law support for an individual’s right to refuse life-prolonging procedures even after losing capacity, there is clearly reluctance on the part of the courts addressing these issues to find for the plaintiff. In this case and others, the courts seem to imply that the possibility of an action exists, but the “facts” are somehow not quite right for them to want to support it. See Taylor v. The Woodlands (727 N.E.2d 466, In. Ct. App. 2000) where the Indiana Court of Appeals considered a case where a patient was provided with artificial nutrition, contrary to the provisions of her living will. The Court found that the family could have taken her to another facility had they wished. See also Klavan V. Crozer-Chester Medical Center (60 F. Supp. 2d 436, ED Pa. 1999) where the US District Court in Pennsylvania considered a lawsuit based on the resuscitation of Dr. Klavan contrary to his advanced directive. The lawsuit was based on a claim that the hospital violated Dr. Klavan’s Fourteenth Amendment rights. The court found that there was no “state action” and therefore dismissed the case. Risk Reduction Strategies: • It is important to be aware of the existence of an advance directive, and the conditions necessary to make one operational, both by law and by the terms of the directive. • In the case of a DNR order, documentation is especially important when it is based on a contemporaneous discussion with the patient regarding conditions particular to the attendant hospitalization to assure the discussion is not characterized as a “generalized” discussion. • Lastly, it is important to know the Shands HealthCare core policies and procedures relative to withholding and withdrawing life-prolonging treatment. You can obtain an ethics consult or contact hospital legal counsel or risk management in the event of disagreements between patient, family, and health care team. All three services can be extremely helpful in facilitating solutions and avoiding the potential for litigation.
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