Wrongful Life

By  |  June 27, 2017 | 

There have been recent discussions in the lay media about a growing trend of litigation cases focused not on the “right to live”, but rather on the “right to die”. These cases have involved patients who received aggressive treatment, despite having documentation of their wishes not to receive such aggressive treatment. Although unsettling, it is not surprising that this issue has arisen, given the national conversations about the exorbitant cost of care at the end of life in the U.S., and the frequency with which patients do not receive end of life care that is concordant with their wishes. These conversations have spurned providers and patients to discuss and document their wishes, via advanced care directives and/or POLST orders (Physicians Orders for Life Sustaining Treatment). There is now even a national day devoted to advanced care decision making (National Healthcare Decisions Day).

While these documents are increasingly available for hospitalists and other physicians during a patient’s hospital stay, as we all know, they do not always provide complete clarity in decision-making for individual scenarios in a patient’s care; there is often ambiguity in applying written advanced directives in dynamically changing cases. Ambiguity is also often introduced in circumstances where the patient is no longer able to make decisions for themselves, and family members (with or without healthcare power of attorney) express desires, wishes, and concerns about their loved one’s care plan. Some advocate that advanced care planning should be more about teaching patients and families how to make decision in the moment, rather than documenting a “static” decision.

But for situations where the paperwork is clear, and the patient actually does receive undesired aggressive care, more plaintiff attorneys are taking on these cases of the “right to die”, since now more people are recognizing and accepting that unwanted life is a type of harm.

This brings to light two important considerations in how we use advanced care planning documentation:

  1. These documents should be treated as dynamic decision-making documents, not static documents that are filled out and filed at a single point in time. Patient wishes can and do change due to a variety of factors; any changes should be repeatedly sought to ensure consistency with care plans.
  2. These documents should be the start of a conversation, not the end of a conversation. Written documentation can still be wrought with ambiguity; a conversation about the document can help clarify desires and ensure that wishes and care plans match.

In our ongoing to desire to “do no harm”, overtreatment is increasingly being recognized by patients and families as a type of harm. To avoid these potentially catastrophic situations, we should all use advanced care documentation as the start of a careful conversation about goals of care and treatment choices. Hospitalists should work with their interprofessional team members (e.g., case managers, social workers, nurse navigators, etc.) to make sure every patient has, or at least is working on, advance care directives, and guide the patient and family in decision making that puts them at ease. With our patients, we can help ensure concordance between their end-of-life wishes and our care plans.

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About the Author: Danielle Scheurer

Danielle Scheurer
Dr. Scheurer is a clinical hospitalist and the Medical Director of Quality and Safety at the Medical University of South Carolina in Charleston, South Carolina, and is Assistant Professor of Medicine. She is a graduate of the University of Tennessee College of Medicine, completed her residency at Duke University, and completed her Masters in Clinical Research at the Medical University of South Carolina. She also serves as the Web Editor and Physician Advisor for the Society of Hospital Medicine.

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