Bioethics Outline - McVety Style
1. The Professional Ethos as a Means of Regulation
a. Havighurst – Health Care Law and Policy, 288-311
2. Professional Education as a Means of Regulation
a. Bosk – Forgive and Remember, Chapter 2 (handout)
i. When deaths and complications disturb the surgical expectation of success,
those involved are compelled to find good reasons to account for failure. The
failure to sustain orderly surgical activity varies in intensity as a threat to a
subordinate’s competence, depending on how rudely expectation are breached,
how frequently an individual breaches expectations, and how easily, if at all, the
action may be reversed.
ii. This section explores the meanings that are negotiated in the wake of breached
expectations, relates these meanings to the division of labor, and explores how
these meanings are fateful for those involved.
iii. A surgeon’s attempts to explain preventable failure may be divided into four
1. technical error
2. judgment error
3. normative error
4. quasi-normative error
b. TECHNICAL ERROR
i. When a surgeon makes a technical error, he is performing his role
conscientiously but his skills fall short of what the task requires. Technical
errors are expected to happen to everyone but rarely. They are expected to
happen to everyone because surgeons understand that theirs is at best an
imperfectly applied science.
ii. There are always complications from unfamiliar techniques. A resident may
make a mistake after a procedure. If these things didn’t happen to him, he
wouldn’t need schooling, he would already be a professor of surgery.
iii. Mistakes happen, even ‘dumb ones’ . That is part of the profession. The job of
the doctor is to try to minimize these mistakes.
iv. For an error to be defined as technical, two conditions must be met-
1. The error has to be speedily noticed, reported, and treated. Given the
inevitability of problems, their speedy report underscores a
houseofficer’s conscientiousness and his concern for the patient; it pays
tribute to the norms of clinical responsibility at the same time that
events themselves mock these norms. A slow discovery on the other
hand would lead the attending (teacher) to suspect more than a
technical error; they may begin to think that there is a moral lapse
2. Mistakes must not be made frequently by the same person to be
technical. When an individual makes mistakes frequently he cannot
legitimately claim that a momentary lapse occurred. Attendings would
not accept such a claim because frequent failure puts doubt in the
subordinate’s efforts to learn to solve these mistakes.
v. The training system of housestaff is set-up in such a way as to minimize
mistakes by ‘beginners’. Attendings always watch over housestaff as they do
procedures to make sure all mistakes are minimized. Also, housestaff only
progress if they have completed easier procedures without mistakes.
vi. Control of work and supervision is most intense during the early stages of the
training year and relaxes as training proceeds and subordinates gain exposure to
and experience with new techniques.
vii. An important part of the subordinate’s training is learning to discriminate
between situations which he can and cannot handle. A request for aid is always
honored. Surgical housestaff learn to operate in much the same way that small
children learn to ride bicycles. An unseen hand supports their efforts. The hand
is withdrawn by stages and the novice finds himself operation on his own.
c. JUDGMENTAL ERRORS
i. A judgmental error occurs when an incorrect strategy of treatment is chosen.
These errors are also unevenly distributed through the division of labor.
Subordinates who have only little discretionary power make few and relatively
minor judgmental errors.
ii. In these cases judgment is not always incorrect in any absolute sense; the
surgeon, given the clinical evidence available at the time, may have chosen an
eminently reasonable course of action, but the result, forces the surgeon to
consider whether some alternative might have been more profitably employed.
iii. Physicians understand that textbook principles of care have to be compromised
to meet the immediate situation, that results and not the elegance of a clinical
blueprint separate acceptable from unacceptable practice.
iv. The two most common judgmental errors that attendings make (since attendings
are more likely to make these type of errors)-
1. overly heroic surgery
2. failure to operate when the situation demands
v. Overly heroic surgery involves the decision to operate when the patient cannot
tolerate the procedure. This decision to operate is a surgeon’s commitment to
his skills; it is also a moral decision about what ‘tolerable’ risk is and a decision
about what the proper role of a physician is – whether he is charged with merely
sustaining life or whether he may subject his patients to great risk in order to
upgrade the quality of life.
vi. A second common judgmental error of attendings is the failure to establish a
clear-cut plan of action for chronic problems. For most these patients,
secondary problems make operation impossible. These types of errors are not
often marked by death, but by a waste of precious medical resources.
vii. Judgmental errors can happen to housestaff too. When this happens, they
review their entire course of action to see where they might have acted
differently. Attendings encourage this and see it as a symbolic act of the
subordinate’s determination to learn.
viii. When housestaff make judgmental errors, these are not seen as large
deficiencies. Indeed they are treated like technical errors, as long as they are
taken care of quickly. This is a time to reinforce learning techniques.
ix. Attendings are also insulated from negative impacts associated with judgmental
1. Their professional accomplishments protect them from the imputation
of defective judgment; any failure must be weighed against many
successes, research publications, and the like.
2. Second, operating on difficult cases that others would not handle is a
pride of place. This is seen as heroic and pro-active.
d. NORMATIVE ERRORS
i. A normative error occurs when a surgeon has, in the eyes of others, failed to
discharge his role obligations conscientiously. Technical and judgmental errors
are errors in a role; normative errors signal error in assuming a role.
ii. These errors are not distributed throughout the division of labor but are almost
exclusively subordinate errors. Normative error occurs when, in the attendings
judgment, a houseofficer’s conduct violates the working understandings on
which action rests.
iii. When a normative error occurs, the mistake renders it impossible to consider the
person making it – in legal terms – a just a reasonably prudent individual.
iv. The largest clinical rule attendings try to push into the mind’s of their housestaff
is the ‘no surprises’ rule. Superordinates expect their subordinates to inform
them of all changes, however small, in the service’s status.
1. Despite tensions and the resulting temptation for the subordinate to go
it on his own (rather than call an attending to inform him of what has
occurred), the no-surprises rule is the overarching principle by which
normative errors are defined.
2. The definition of what a surprise is can be highly debated. Basically it
comes down to what an attending feels is a surprise. A surprise for an
attending is any violation of the principle of full and honest disclosure.
A surprise for the attending carries with it the implications that a
housestaff member was lazy, negligent, or dishonest.
3. Normative breaches are breaches of the etiquette governing the role
relations between attending surgeons and housestaff. A normative
error in turn carries with it the implication that a fundamental breach of
etiquette governing the role relation between doctor and patient has
occurred. Physicians are expected to treat conditions as they arise or to
make certain that they will be treated before he moves on to other tasks.
This is serious because of the liability involved.
v. There are two other types of surprises that are treated as normative errors.
1. A house member’s inability to get along with nurses is a failure that
attendings treat as normative. It violates the tacit assumption that one
will not let personality intrude on clinical care.
a. Housestaff failure to maintain good working relations on the
ward is a serious mistake; it indivates that a subordinate lacks
the skills necessary to run a surgical team. A housestaff
member who quarrels with support staff is blamed for placing
his own needs above those of patient care. There are always
ways of dealing with improper nursing, quarrelling is not
b. Complaining like this means that a subordinate is not ready to
be asked for help. In this case the whole set of controls built
into task performance by the division of labor and norms of
clinical care breaks down. A subordinate will later violate the
no surprises rule when there are subordinates under him,
which is unforgivable.
2. A second serious error is similar to inability to work agreeably with
nurses, that is, the inability to secure the cooperation of patients and
their families. To housestaff fall the problems of informed consent, of
gaining patient’s cooperation preoperative and postoperative. A failure
of these tasks is an indication that a subordinate cannot control the
normal troubles of his environment. All of this creates extra work for
the attending. This is different from judgmental error or technical
error, because it is so easily avoidable.
vi. Although normative errors occur for both attending and housestaff, subordinates
are the only ones that are criticized and punished for it. There is never a good
reason for normative errors because it means something else is coming in front
of patient care.
vii. Attendings escape blame for their normative errors for three reasons-
1. privileges of rank insulate them from many of the pressures that hurt
housestaff. Because of their rank they are not accountable to anyone
day to day.
2. Credentials are a presumptive moral licensing.
3. Although the attending is the legally responsible agent for patient care,
the division of labor does not always reflect this. Thus, division of
labor insulates the attending from the normal traumas of the job and
they are less likely to have normative lapses.
viii. Normative errors are taken seriously by housestaff and attendings. Housestaff
fear normative error much more than they do other type of error. They fear
normative error destroy their credibility, hurt recommendations and may carry
other negative sanctions.
ix. Normative errors show a break in the respect of proper lines of authority which
can carry serious weight.
x. A technical or judgmental error then says something to an attending about a
recruit’s level of training; a normative error says something bout the recruit
himself. This is a way for attendings to differentiate between housestaff.
Legally this is a larger problem because it means a failing of the system that
could carry large future ramifications. The rule of thumb for attendings apply
here is, even the most technically incompetent can be trained for something – he
will rise or sink to his own level of proficiency. But the morally bankrupt
represents a threat to the surgeons and must be treated as a serious problem
e. QUASI-NORMATIVE ERRORS
i. Normative errors are breaches of standards of performance that all attendings
share: quasi-normative errors are eccentric and attending specific. Each
attending has certain protocols that he and he alone follows. A subordinate who
does not follow these rules mocks his superordinate’s authority. His behavior is
a claim that his judgment is adequate as his superior’s: and even though in no
absolute sense can one claim that a mistake has been made, a subordinate who
makes a quasi-normative error risks his reputation as a recruit.
ii. This is trust and loyalty based. Some attendings approach a problem in one
fashion with very good results: others have equally good results with a
competing approach. Attendings believe that housestaff are on their services to
learn their approach to the surgical management of diseases.
iii. In any actual case, the attending who is responsible for the patient’s care is the
one who says whether one approach is correct or not. The subordinate who
favors and intiates another attending’s approach over the one on whose service
he is working opens himself up to severe criticism.
iv. Compliance with attending dictates, however open to debate they are, is an
indicator that a subordinate is a responsible member of the team who can be
trusted. Attendings feel that the subordinate who makes quasi-normative errors
is also likely to make normative errors: his behavior does not inspire trust.
v. When a normative breach is made, a double error is involved; standards of
clinical care are breached and the etiquette governing role relations among
attendings and housestaff is breached. When a quasi-normative error occurs,
clinical care may be correctly administered and the general etiquette of role
relations may even be followed. In this instance, the subordinate is wrong for
all the right reasons; his fault is that of hubris: he tried to act like an attending.
vi. Quasi-normative errors are serious mistakes for subordinates to make; for them
to damage a subordinate, however, he must make them on more than one service
or he must make them blatantly. It is a way of showing what the proper
alignment of roles is, of communicating to housestaff that the yare in the
hospital not so much to treat patients as to learn to treat them.
f. EXOGENOUS SOURCES OF FAILURE
i. Surgical intervention can fail for a number of other reasons that do not implicate
the competence of a surgeon in any direct way.
ii. First, there is failure from disease.
1. Sometimes the best efforts of surgeons cannot cure those in the more
advanced stages of terminal illness. These deaths indicate to surgeons
what the limits of their skills are: and they are seen as inevitable.
Heroic care only goes to salvageable patients. Non-salvageable
patients are allowed to die from their diseases. These two classes of
patients help determine the allocation of scarce healing resources.
iii. Second there is patient procrastination or non-cooperation.
1. Often surgical intervention fails because patients neglect to report
symptoms until too late. Here, the patient must share responsibility for
the outcome with the surgeon. The necessity for ‘informed consent’
often compromises what the surgeon would like to do.
iv. Third, there is nursing and support staff error.
1. Often a failure can be traced to the mistakes of nurses and others
involved in direct patient care. Medication gets failed to be passed
properly, etc. Even though housestaff is in charge of support staff,
these are seen as errors that go along with the environment and are
v. Fourth, there is machine malfunction.
1. Some failures occur because of breakdowns in the enormous
technology that supports care in the modern hospital.
3. Defining Death – Dresser, Bioethics and Law (1-62)
a. Because of medical advancement, the moment at which an individual dies, indeed, the
definition of death itself, has to some extent become a matter of human control and
choice. As a result, phenomena that were once dictated to natural forces are now the stuff
of philosophical, legal, social and policy analysis.
b. Some analysts contend that permanent cessation of the capacity for consciousness marks
the onset of human death, but the law has rejected this view. At the same time that the
law has refused to equate permanent unconsciousness with death, however, courts and
legislatures have developed rules permitting withholding or withdrawing of life
sustaining measure from permanently unconscious individuals.
c. The advent of artificial methods of maintaining respiration and the need for viable organs
for transplantation triggered an expansion beyond the traditional circulatory-respiratory
criteria to encompass determination of death according to whole-brain criteria. This
expansion permitted death to be declared in individuals whose heart and lung functions
were artificially maintained. It also permitted organ retrieval from such individuals whit
the consent of the individuals next of kin. The whole brain formulation is now legally
accepted in all states.
d. NOTE ON BASIC CONCEPTS RELEVANT TO END OF LIFE DECISIONMAKING
i. The guiding theme is that such decisions are properly controlled by the
individual whose life and physical well-being are at stake, as opposed to the
state, health professionals, family members or anyone else. People assign
varying importance to prolongation of life, avoidance of suffering, preservation
of functioning, and other quality of life considerations, they must be permitted to
decide in accord with their personal beliefs and values.
ii. Legal analyses have relied on a variety of categories to guide policy on forgoing
life-sustaining treatment. Although the classifications are sometimes cited as
helpful in resolving treatment dilemmas, they often become a substitute for
analysis by serving as accessories in a process of conclusory reasoning.
1. For example early in the policy development process, a distinction was
sometimes made between so-called extraordinary treatment, which
could be forgone at the patient’s or surrogate decision maker’s request
and ordinary treatment which was deemed mandatory in virtually all
cases. (In re Storar, Sup. Ct. 1980).
2. This distinction lost favor because the same technology could be
classified as extraordinary or ordinary depending on its availability, and
that should not be the determining factor in determining a patient’s
well-being. (In re Quinlan)
3. This distinction was borne out of Roman Catholic Theology, where a
specific intervention was classified depending on its expected benefits
or burdens for the patient. The problem with this was who decided
what was defined as a benefit or burden. (Barber v. Superior Court)
iii. A second set of distinctions commonly invoked is based on the different legal
and moral significance assigned to-
1. affirmative acts that cause a person’s death
2. failures to intervene when a person’s life is threatened by natural forces
or the acts of another.
iv. In this framework, affirmative acts are labeled killing and failures to intervene
referred to as allowing to die.
v. According to this analysis it is permissible for health professionals to forego life
sustaining treatment on the theory that the yare simply allowing the patient to
die or allowing nature to take its course anyway.
vi. This method is very ambiguous. The ambiguity inherent in this passive/active
distinction is further heightened when one performs an act within an overall plan
of non-intervention, such as when a doctor writes an order not to resuscitate a
patient. (In re Conroy).
vii. The act omission distinction also overlooks the fact that physicians’ omissions
can sometimes be culpable and an appropriate basis for liability. This is because
physicians have a duty to act to benefit their patients. Thus, physicians risk civil
liability if they fail to administer beneficial life-sustaining treatment in
emergencies or when patients request treatment.
viii. Accordingly many argue that the key issue is not whether a case involves an act
or omission on the part of a physician, but whether treatment is forgone because
the patient or surrogate refused it or for some other acceptable reason.
e. FORGOING MEDICAL NUTRITION AND HYDRATION
i. Courts and legislatures formulating policy on life sustaining treatment generally
have not assigned significance to the specific procedure to be forgone. An
exception is medical nutrition and hydration, which has sometimes been singled
out as meriting a special approach.
ii. Some analysts contend that the failure to provide nutrition and hydration to
patients was tantamount to giving the patient a lethal injection, on grounds that
death from dehydration or starvation was produced by a cause independent of
the patient’s underlying illness or injury.
iii. Beginning in 1982 courts began holding that separate rules were not required for
decisions on withholding or withdrawing nutritional support. (See Barber v.
Superior Court). This stemmed from courts not believing that forgoing
nutritional support was independent from the patients underlying illness (no
iv. Concern about the patient’s potential for suffering underlies some of the
hesitance about forgoing nutritional support. Yet competent terminally ill
patients who refuse such support when they become unable to eat and drink
report that they are comfortable. These patients may actually experience less
discomfort than those receiving nutritional support for the latter are subject to
the procedure’s side effects and complications.
f. DEFINING DEATH
i. Until the 20th century two formulations of death were used.
1. One focused on movement of the so called vital liquids that marked a
living creature. This included the flow of air.
2. The other formulation was based on Christian belief that immaterial
essence or soul as the core of the living human being defined life.
ii. Death can be defined on a continuum. Some used to think that death occurred
when the body started to actually decay. Now a days we define death much
further down the continuum. Ultimately, law and public policy will incorporate
the definition deemed to have the strongest moral, social and practical
iii. The Failure of the Whole Brain Function – Youngner and Bartlett
1. A formulation about death consists of a concept or definition of what it
means to dies, operational criteria for determining that death has
occurred and finally specific medical tests that show whether the
criteria have been fulfilled.
iv. Death formulations – President’s Commission on Defining Death
1. The interrelationships of Brain, Heart and Lung Functions
a. The brain has three sections: the cerebrum, the cerebellum and
b. The cerebrum controls higher brain functions such as complex
thought, memory and feeling.
c. The brainstem is called the lower brain because it controls
vegetative functions, swallowing, yawning and sleep/wake
d. Respiration is also controlled in the lower brainstem as well.
Destruction of the brain’s respiratory center stops breathing
which deprives the heart of oxygen. This will cause the heart
to stop as well. The traditional signs of life – respiration and
heartbeat – disappear; the person is dead. The vital signs
traditionally used in diagnosing death thus reflect the direct
interdependence of respiration, circulation and the brain.
e. The artificial respirator and life support system has changed
the simple picture. Provided the lungs have not been too
badly damaged, the machine can keep people alive.
f. The criteria for determination of death
i. An individual presenting the findings in either section
(a) cardiopulmonary or section (b) neurological is
dead. In either section, a diagnosis of death requires
that both cessation of functions, as set forth in section
1 and irreversibility as set forth in subsection 2 be
1. An individual with irreversible cessation of
circulatory and respiratory functions is dead.
a. Cessation is recognized be an
appropriate clinical exam.
b. Irreversibility is recognized by
persistent cessation of functions
during an appropriate period of
observation and/or trial of therapy.
2. An individual with irreversible cessation of
all functions of the entire brain, including
the brainstem is dead.
a. Cessation is recognized when
evaluation discloses findings of i
i. Cerebral functions are
absent (there must be deep
coma, that is , cerebral
circumstances may require
the sue of studies such as
EEG or blood flow study
to confirm this) AND
ii. Brainstem functions are
absent (reliable testing of
requires a perceptive and
using adequate stimuli.
3. Irreversibility is recognized when evaluation
discloses findings of a, b and c.
a. The cause of coma is established
and is sufficient to account for the
loss of brain functions, AND
b. The possibility of recovery of any
brain functions is excluded AND
c. The cessation of all brain functions
persists for an appropriate period of
observation and/or trial of therapy.
v. The Uniform Determination of Death Act [UDDA]
1. This was established 1981 to convey that the heart-lung and brain
criteria are simply two ways of assessing the same state. The Act
a. An individual who has sustained either (1) irreversible
cessation of circulatory and respiratory functions or (2)
irreversible cessation of all functions of the entire brain,
including the brain stem, is dead. A determination of death
must be made in accordance with accepted medical standards.
2. Some would just have total cessation of brain function be the true test.
The point is that, when cessation of lung-heart occurs, then really the
brain dies too, so that should be the final determination.
3. Despite ongoing debate over its legitimacy, the whole brain
formulation of death has achieved widespread acceptance among
medical and legal professionals. More than half of the states have
adopted the UDDA and all states have adopted some version of the
whole brain formulation through either statute or court decision.
g. HIGHER BRAIN FUNCTIONS FORMULATIONS OF DEATH
i. In the 80’s people started to support a totally different formulation of death
based away from the vital fluids concept. Proponents were fixated on brain
functions essential to human life, as the layperson would describe it.
ii. This concept of death is based on irreversible loss of the capacity for mental or
social functioning. If a group of hypothetical human beings had irreversibly lost
the capacity for consciousness or social interaction, they would have lost the
essential charter of humanness and according to this definition they would be
dead even if they had capacity of integration of bodily function.
iii. Rationality, consciousness and social interaction are all foundation tests of what
make us human and so they would define this concept of death.
iv. The president’s commission rejected the higher brain function formulation for
1. there is no general agreement among philosophers, physicians and
laypersons regarding the mental or social capacities that are essential to
2. the essential capacity argument also supports the unacceptable position
that human beings with severe dementia or other cognitive impairment
should be labeled dead.
3. because individuals with irreversible cessation of higher brain functions
can breathe without mechanical assistance, treating such persons as
corpses would depart too radically from the traditional concept of
4. cessation of higher brain functioning cannot be determined with the
degree of certainty we should demand of a legal definition of death.
v. There is an ongoing argument when ‘brain-birth’ occurs and at that point a fetus
should have rights. This is the point that a fetus’ has a brain forming to have
higher brain function. Check out page 37 of the course pack.
vi. Anencephaly is a condition which the brain, skull and scalp fail to fully develop.
Although they may have totally normal organs, usually all higher brain functions
are gone or non-existent. In the mid-80’s physicians and parents began
campaigning to create laws that would allow these infant’s organs to be
harvested. So far this has not had much success.
h. SOCIAL AND POLICY IMPLICATIONS OF DEFINING DEATH
i. Defining death is important because when someone is dead, certain previously
unacceptable behavior becomes permissible. This includes termination of all
medical treatment, possible retrieval of organs, etc.
ii. Focusing on whole brain death as real death presents problems because it fosters
a suspicion that we have this formulation only because of the utilitarian desire to
obtain organs for transplant.
iii. Two advantages of the traditional vital signs were their accessibility to
measurement (not only to the medically trained) and their obvious connection to
the reality of death as perceived in everyday life.
1. The whole brain signs of life and death are less well comprehended by
non-specialists and they measure functions that are less clearly
2. Attitudes toward death change over time…that is preciously why the
new definition of death should therefore supplement rather than
supplant the existing legal concept.
3. Normal human contact does not involve the analysis of which life
functions are so essential that a person should not survive without
them. The whole brain formulation breaks with how we define people.
If we can see them breathing, then we believe they are alive. We have
been conditioned to associate eve the most mundane physiologic
functions with life.
iv. Strachan v. Kennedy Memorial Hospital (1998)
1. This appeal poses important issues concerning the duty of health-care
providers to turn over to the next of kin a family member’s dead body.
P son’s body had been maintained on a life support system even after
the parents had demanded that the system be removed following the
unanimous conclusion of several physicians that the young man was
2. The patient shot himself through the head in an apparent suicide. He
was diagnosed as brain dead by a few doctors. The doctors asked the
parents (the plaintiffs) if they could harvest the patient’s organs since
his body was being kept alive through use of an artificial respirator
3. Ps decided they did not want the patient’s organs to be harvested and so
they told the doctors to take him off the machines and let his body die.
The doctor’s could not take him off the machines until the hospital
administration gave them the ok.
4. The administration said that the doctors should do a few EEGs to insure
that the patient was indeed brain dead. Also they should get a release
from the parents. After doing this, the hospital disconnected the patient
from the machines and turned the body over the parents.
5. Plaintiff’s (the parents) instituted action against the hospital based on
two separate duties owed by the defendants to the plaintiff’s. The first
resting on a duty to have in place procedures for the removal of the
plaintiff’s son from the life-support system on the plaintiff’s request.
The other based on a duty to release to the parents their son’s dead
a. However, there should only be one issue in this case – the duty
to act reasonably in honoring the family’s legitimate request to
turn over their son’s body.
b. There is a quasi-right to the body of a dead family member,
and so the question is, when technically was the son dead?
Was it when he was pronounced brain dead or when he was
taken off the machines?
6. Traditionally death was defined by irreversible cessation of
cardiopulmonary function. With advances in technology and organ
harvesting, many states have adopted new definitions of death
incorporating brain death. In the criminal context, brain dead is
considered true death. And other courts have also adopted this version
of death. Therefore, we will hold that the plaintiff’s son was dead
when he was first pronounced brain dead, not when he was taken off
7. The court determines that there was ample evidence to support the
jury’s conclusion that defendants violated their duty to honor plaintiffs’
legitimate request to turn over their son’s dead body.
v. Some philosophers argue that the whole brain definition of death is motivated
only for the use of organ harvesting and research.
vi. The whole brain definition is somewhat more complex because it is unclear
when the brain is entirely dead. There are subtle nuances that differentiate
between each case, and so this makes it more difficult to give an exact
declaration that someone is dead.
vii. Some argue, therefore, that the conception of death should be based on what the
individual feels or next of kin. If this does not happen, then there is a general
legal definition that could be followed.
1. Given individual religious beliefs, some states have altered their rules
concerning the pronouncement of death to include these beliefs. In
these cases death shall be declared and time of death fixed solely upon
the basis of cardio-respiratory criteria rather than on brain death (New
4. Decisions on Life-Sustaining Treatment: Competent Patients -
a. McKay v. Bergstedt
i. Bergstedt is 31 year old mentally competent quadriplegic who wanted to
confirm his right to die.
ii. The P suffered from quadriplegia because of a diving accident that occurred
when he was ten. After seeing his father become ill and suffer from imminent
death, the P decided he wanted to be released from a life of paralysis held intact
by the life sustaining properties of a respirator. His infliction is non-terminal as
long as he stays on the respirator.
iii. The record shows that physicians have certified that he will always be
quadriplegic and that mentally he understands the nature and consequences of
iv. The P wanted an ordering permitted the respirator to be removed, that he be
given a sedative to ease the pain as he die, that the person removing the
respirator be absolved of liability and that his death record show he died of
natural causes rather than suicide.
v. Because many individuals find themselves facing a terminal condition
susceptible to indefinite suspension by medical intervention the question arises
with increasing frequency and fervor concerning the extent to which persons
have the right to refuse an artificial extension of life. Courts considering the
question that the answer is to be found in balancing the interest of the person
and the state.
vi. The state interests are as follow-
1. the interest of the State in preserving the sanctity of all life
2. the interest of the State in preventing suicide
3. the interest of the state in protecting innocent third persons who may be
affected be the death of the party seeking relief
4. the state’s interest in preserving the integrity of the medical profession
5. the state’s interest in encouraging the charitable and humane care of
those whose lives may be artificially extended under conditions which
have the prospect of providing at least a modicum of quality living.
vii. Under common law there is a strong right of people to do what they want with
1. however, courts have found that the right to refuse medical treatment is
2. Also something to weigh is the constitutional privacy interest a person
may have to withhold or withdraw medical treatment.
viii. The court then goes through and evaluates all of the State interests listed above
against the interests the P would have in having the machines taken away. In the
end, the court finds the state interests uncompelling and sides for the P.
ix. The dissenting opinion focuses on what a natural death is, and how the ventilator
had become part of the P’s life.
x. One of the biggest issues here and in many cases like it (Bouvia and Cruzan)
deals with what should be considered suicide and what should be considered the
patient’s right to refuse treatment. This also brings up the difference between
terminally ill and non-terminally ill. Some have tried to argue that only
terminally ill patients should be able to refuse life saving medical treatment.
b. The Legal Status of Three Types of Treatment Refusals Remains Uncertain:
i. Oral Nutrition and Hydration
1. This debate has often focused on the question whether such
interventions are medical or not.
2. The current moral presumption is that medical procedures may be
forgone while non-medical ones may not.
3. Oral feeding is normally not assumed to be medical. But this can be
painful, and so the debate rages on.
ii. Operating Room CPR
1. It is legally appropriate for CPR not to be given to people where this
would prolong the agony of the dying patient.
2. What happens when that same person that has declined CPR goes into
surgery and then needs it? Physicians think that they should provide it
in this case because the doctor is the ‘cause’ of need for the CPR
because of the surgery.
iii. Another area that is somewhat confusing is where medical care must be given to
someone outside the medical setting.
1. These are situations where doctors encounter someone in medical
trouble just by happenstance outside of a medical setting.
2. What happens when these people have recorded a non-resuscitation
c. It is conceivable that courts could find a third party’s interests above the interests of the
person refusing treatment (if this means they will die).
i. This could happen if a parent tried to refuse treatment when they would leave a
child an orphan (courts have found this not to be the case)
ii. This could happen if a pregnant woman tried to refuse a blood transfusion that
would save her and her fetus (court’s have been slowly saying that the woman
would still have the right to refuse treatment in this case).
iii. This could happen if a poor man needed to have an amputation but refused. In
this case Medicaid would then have to pay for his expensive and prolonged care
because he refused. Should he be allowed to waste the state’s resources when it
is not necessary?
iv. Also Jehovah’s witness may refuse blood transplants and this has been deemed
d. Rarely will the state’s interest override that interest of a dying patient/person.
i. Only one place does this really see effect, the prison system. Some prisoners
might refuse treatment in order to be moved to a better facility. This is seen as
violating the state’s interest in maintaining an orderly prison system.
e. Bouvia is still alive even though she has been arguing in court that she should be allowed
to refuse treatment (food tubes). She has been able to eat orally and this has kept her
alive. In another well publicized case a quadripilegic man won his right to exercise his
refusal. He has decided not to exercise this right yet.
f. Along this same line is the case of Georgia v. McAfee. McAfee sought judicial action
after four years of being dependent on life support. As a result of the publicity he
received because of the case, he got many job offers, money and an apartment. McAfee
decided to postpone disconnecting the respirator because his life was ‘turning around’.
i. The concern here is that patients will refuse life sustaining treatment because
they feel angry, depressed, abandon or worthless in the grip of emotional
5. Competence To Make Treatment Decisions – Dresser (98-122)
a. The law formally presumes that all persons over the age of majority are competent to
exercise the full array of rights that accompany adulthood, including the right to decide
about medical treatment.
b. Courts take one of two actions when a patient’ s capacity impaired.
i. The court may find the subject incapable of decisionmaking on all matters
involving her person and property. In such cases, a guardian is appointed to
make all decisions on the subject’s behalf.
ii. The court may find a person incompetent to exercise choice in a particular area,
and appoint a limited guardian to make decisions in that area alone. The latter
approach is increasingly endorsed to avoid disempowering people who retain the
capacity for independent decisionmaking in some domains.
c. Despite the formal requirement for an adjudication of incompetence prior to depriving a
person of decisionmaking authority, patients are frequently deemed incapable of
treatment decisionmaking without resort to the courts.
d. The inquiry into a patient’s decisionmaking capacity sometimes becauins when the
patient refuses a treatment intervention deemed necessary by the family and health care
i. Lane v. Candura
1. 77 year old patient that suffered from gangrene would not consent to an
operation to amputate the leg. Her daughter filed petition in court to
seek temporary guardianship with authority to consent to the operation
on behalf of her mother.
2. The patient has had many operations and does not want anymore
because she thinks she is a drain on her family. She is sometimes
confused and sometimes very clear in her mindset. She claims that she
welcomes death since many things in her life push her towards this
(death of her husband, etc.). She knows that without the operation she
3. A person is presumed to be competent unless shown by the evidence
not to be competent by the petitioner for the guardianship. The law
protects a person’s right to make her own decision to accept or reject
treatment, whether that decision is wise or unwise.
4. Just because she has changed her mind a few times about the treatment
does not make her incompetent. No guardianship should be granted in
e. Standard of legal competence to make Medical Decisions
i. Ability to communicate to others
ii. Ability to understand the relevant information
iii. Ability to appreciate the nature of the situation and its likely consequences
iv. Ability to manipulate information rationally
f. An interesting aspect of this is that there is confusion over the concepts of self-
determination and well-being. Because people’s interest in making important decisions
for themselves is not based solely on their concern for their own well-being, these two
values of patient well-being and self-determination can sometimes conflict.
g. Candura represents what has become the consensus position on the appropriate definition
of competence to decide on life-sustaining treatment. There is general agreement that the
competence examination should assess the patients’s ability to engage in the
decisionmaking process, as opposed to the rationality or reasonableness of the choice
h. Northern is a case where the patient refused amputation of her feet even though she
would die if this did not happen. She did not acknowledge that she needed the surgery
because she refused to believe that something was clearly wrong with her feet. The
court appointed a guardian to consent to the operation.
i. There is some debate over how to test competence. Also, whether a judge can better
measure competence compared to a hospital or whether there should be different tests for
competence given the type of procedure that is being refused.
6. Incompetent Patients: Constitutionally Permissible Standards CRUZAN v. DIRECTOR
(Handout) and Dresser (154-180)
a. Cruzan v. Director, Missouri Department of Health
i. Guardians of patient in persistent vegetative state brought declaratory judgment
action seeking judicial sanction of their wish to terminate artificial hydration and
nutrition for patient.
ii. The supreme court held, the United States Constitution did not forbid Missouri
from requiring that clear and convincing evidence of an incompetent’s wishes to
the withdrawal of life-sustaining treatment
iii. State supreme court did not commit constitutional error in concluding that
evidence adduced at trial did not amount to clear and convincing evidence of
patient’s desire to cease hydration
iv. Due process did not require state to accept substituted judgment of close family
members absent substantial proof that their views reflected those of patient.
7. Incompetent patients: Standards For treatment Decisionmaking, Dresser (161-221)
a. As Cruzan majority noted, state courts adjudicating cases on life-sustaining treatment
may draw on several sources of law besides the US Constitution. As Bergstedt courts
consider non-treatment cases typically invoke common law principles on individual self-
determination and bodily integrity, as well as the states traditional parens patriae
authority to protect vulnerable persons from harm. State judges may also turn to state
constitutions and statutes for guidance on resolving such cases.
b. Cruzan exemplifies a basic problem arising when third parties must make choices about
life-sustaining treatment for seriously ill incompetent patients. The legal rules and ethical
principles governing life-sustaining treatment for competent patients are relatively
straightforward compared to those governing treatment for incompetent patients.
c. Although a patient’s prior statements may provide some indication of what a patient
would choose, such statements may not always be helpful or perhaps even appropriate
guides for treatment decisionmaking.
d. In re Conroy
i. “We hold that life-sustaining treatment may be withheld or withdrawn from an
incompetent patient when it is clear that the particular patient would have
refused the treatment under the circumstances involved.”
ii. The standard we are enunciating is a subjective one, consistent with the notion
that the right that we are seeking to effectuate is a very personal right to control
one’s own life.
iii. The question is not what a reasonable or average person would have chosen to
do under the circumstances but what the particular patient would have done if
able to choose for himself.
iv. The patient may have expressed in one or more ways, an intent not to have life-
sustaining medical intervention. Such an intent might be embodied in a written
document or living will stating the person’s desire not to have certain types if
life sustaining treatment administered under certain circumstances.
v. It might also be evidenced in an oral directive that the patient gave to a family
member, friend, or health care provider. It might consist of a durable power of
attorney or appointment of a proxy authorizing a particular person to make the
decisions on the patient’s behalf if he is no longer capable of making them for
vi. It might also be deduced from a person’s religious beliefs and the tenets of that
religion or from the patient’s consistent pattern of conduct with respect to prior
decisions about his own medical care. Of course, dealing with the matter in
advance in some sort of thoughtful and explicit way is best for all concerned.
vii. Although all evidence tending to demonstrate a person’s intent with respect to
medical treatment will be considered, but this value of this evidence must be
weighed as to what circumstances surrounded the statement.
1. In the absence of adequate proof of the patient’s wishes, it is naïve to
pretend that the right to self determination serves as the basis for
viii. The state also has an interest in incompetents and so there are multiple interests
to be weighed.
ix. We therefore hold that life-sustaining treatment may also be withheld or
withdrawn form a patient if either of two best interests tests- a limited-objective
or a pure-objective test- is satisfied.
1. Under the limited-objective test, life-sustaining treatment may be
withheld or withdrawn form a patient when there is some trustworthy
evidence that the patient would have refused the treatment, and the
decision-maker is satisfied that it is clear that the burdens of the
patient’s continued life with the treatment outweigh the benefits of that
life for him.
a. By this we mean that the patient is suffering and will continue
to suffer throughout the expected duration of his life,
unavoidable pain, and that the net burdens of his prolonged
life markedly outweigh any physical pleasure, emotional
enjoyment or intellectual satisfaction that the patient may still
be able to derive from life.
b. This limited objective standard permits the termination of
treatment for a patient who had not unequivocally expressed
his desires before becoming incompetent, when it is clear that
the treatment in question would merely prolong the patient’s
c. Medical evidence will be essential to establish that the burdens
of the treatment to the patient in terms of pain and suffering
outweigh the benefits that the patient is experiencing.
d. This limited-objective test also requires some trustworthy
evidence that the patients would have wanted the treatment
terminated. This evidence could take any one or more of the
various forms appropriate to prove the patient’s intent under
the subjective test. In this limited-objective test, however, less
evidence will be needed to be sufficient to satisfy this prong of
the limited-objective test.
2. In the absence of trustworthy evidence, or indeed any evidence at all,
that the patient would have declined the treatment, life-sustaining
treatment may still be withheld or withdrawn from a formerly
competent person if a third, pure-objective test is satisfied.
a. Under this test, as under the limited-objective test, the net
burdens of the patient’s life with the treatment should clearly
and markedly outweigh the benefits that the patient derives
b. Further the recurring unavoidable and severe pain of the
patient’s life with the treatment should be such that the effect
of administering life sustaining treatment would be inhumane.
c. Subjective evidence that the patient would not have wanted
the treatment is not necessary under this pure-objective
d. Nevertheless, even in the context of severe pain, life-
sustaining treatment should not be withdrawn from an
incompetent patient who had previously expressed a wish to
be kept alive in spite of any pain that he might experience.
x. Conroy’s three tests track the major standards courts and legislatures have
adopted in addressing cases on incompetent patients: (1) the advance directive,
or subjective standard; (2) the substituted judgment or limited-objective
standard; and (3) the objective standard, typically referred to as the best interest,
benefit-burden, or reasonable person standard.
1. The Subjective Standard
a. Conroy expresses the judicial consensus regarding the
preferred approach to treatment decisionmaking on behalf of
b. State legislators have also expressed their support for the
subjective standard by enacting statutes that explicitly
authorize the tow types of advance treatment directives
mentioned in Cruzan and Conroy.
c. Partly because of the ambiguities inherent in instruction
directives, the so-called proxy directive had attracted wide
judicial and legislative support.
d. Most state statutes require witness signatures on written
advance directives and disqualify family members and
employees of health care facilities.
e. The National Conference of Commissioners on Uniform State
Laws and American Bar Association have approved the
Uniform Health-Care Decisions Act (UHCDA). This has
served as the model for several states on advance directive
f. Most state laws will not disallow the use of pain medication
through advanced directives. The doctor has a duty to provide
comfort care despite an advanced directive to the contrary.
g. Typically, individuals may freely revoke their advance
directives through any behavior consistent with this intent,
including verbally, physical destruction, etc. Such revocation’s
are valid without regard to the individual’s competence.
i. The UHCDA is more strict and requires the person to
sign a written document.
h. There are four main problems to advanced directives cited in
i. Medical therapies might emerge after a directive is
made that significantly alter the prognosis for a
condition such as Alzheimer’s.
ii. A specific intervention might be rejected in a
directive mistakenly because the thought that it was
generally unsuccessful (like CPR).
iii. The competent person is less capable of judging
future best interest than current ones.
iv. Safeguards in the health care setting that protect
competent patients from harmful treatment choices
based on transient depression or feelings of
abandonment are absent in the advance treatment
i. A new study says that most patients want their advanced
directives overridden in certain circumstances (61%).
j. Another problem with advanced directives is that they have a
problem with being either too specific (so when the time
comes they are inapplicable) or not being specific enough (as
to be almost useless).
k. Proxy directives are endorsed as a means of avoiding the risk
that instruction directives will be too narrowly-worded or too
general to be of assistance in the actual treatment situation.
Designated proxies can tailor the patient’s formerly stated
treatment preferences and values to whatever specific
treatment dilemma emerges.
l. There is some studies that people do not use advanced
directives or they are not consulted during the final stages of
treatment. Further it does not seem that they have any effect
on health care spending.
m. Many state statutes invalidate an advance directive if the
incompetent patient is pregnant. The constitutionality of these
provisions remains untested.
n. In medical emergencies, health professionals are legally
permitted to treat patients without consent. However
advanced directives mix this up for obvious reasons.
o. Although 90% of people support advanced directives, fewer
than 10% have them. The most popular reason people do not
have them is because their doctor’s have not brought them up.
2. The Substituted Judgment Standard (limited-objective test)
a. In re Quinlan the court permitted the permanently
unconscious patient’s guardian and family to authorize
withdrawal of life support if their best judgment was that the
patient herself would choose this outcome. To make this
judgment, they were to imagine the decision that would
emerge if the person were miraculously lucid and perceptive
of her irreversible condition.
b. Despite the Quinlan’s court endorsement of the substituted
judgment test, the patient’s guardian and family had little to
guide them in their attempt to decide as she would. There was
some evidence of a passing remark, the court said these were
too remote though.
c. This reveals a fundamental source of uncertainty with this test:
what source of evidence is sufficient to indicate a formally
competent patient would consent to or refuse certain
d. The answer might include using facts not related to the
treatment at hand, like lifestyle choices or religion. However,
substituted judgment omits an element of explicit, deliberate
choice, thus this standard lacks the firm foundation in rational
self-determination that supports the advance directive
e. The absence of an explicit choice, together with the
imprecision of the evidence supporting substituted judgment
decisionmaking creates unease about the degree to which
family members, physicians and other third parties may insert
their own values and concerns into a decision purporting to be
what the patient would want. Despite this, two cases have
i. Superintendent of Belchertown State School v.
1. The judge found that Joe Saikewicz at the
time the matter arose was 77 years old with
an IQ of ten and a mental age of about 2
years, eight months. He was profoundly
mentally retarded. The record also states
that he had leukemia, beside this he was in
good physical health. He could not
communicate besides grunts and gestures.
2. It was the opinion of the doctors that he was
not aware of the danger to his life because of
the leukemia. Because of his condition
Saikewicz had lived in State institutions all
his life and he resided in the Belchertown
State School since early in his life. His two
sisters, the only living members of his
family, declined to take part in the court
3. The question is whether chemotherapy
should be delivered or not. The outcome
might give him more pain but extend his life
shortly. Concluding that the negative
factors of treatment exceeded the benefits
the judge ordered that therapy not be given
to Saikewicz. The judge ordered that
everything be done to ease his pain in
suffering during this time.
4. Saikewicz died at the school before these
proceedings began without pain or suffering
from an ailment related to his leukemia.
5. The question what legal standards govern
the decision whether to administer
potentially life-prolonging treatment to an
incompetent person encompasses two sub-
questions. First does a choice exist for the
State in regard to an incompetent’s
treatment? Second if a choice exist under
certain conditions, what consideration enter
into the decision making process?
6. We think that principles of equality and
respect for all individuals require the
conclusion that a choice exists. We
recognize a general right tin all persons to
refuse medical treatment in appropriate
circumstances. The recognition of that right
must extend to the case of an incompetent as
well as a competent patient because the
value of human dignity extends to both.
7. To protect the incompetent person within its
power, the State must recognize the dignity
and worth of such a person and afford to that
person the same panoply of rights and
choices it recognizes in competent persons.
Statistical factors are not indicative of what
should be decided. Individual choice is
determined not by the vote of the majority
but by the complexities of the singular
situation viewed from the unique
perspective of the persons called on to make
8. The trend in law has been to give
incompetent persons the same rights as
others. Recognition of this principal may
require a court to consent to the withholding
of treatment from an incompetent individual.
9. This leads us to the question of how the
right of an incompetent person to decline
treatment might best be exercised so as to
give the fullest possible expression to the
character and circumstances of that
10. In re Quinlan a New Jersey court held that a
father as guardian could exercise his
daughter’s right to privacy and have
artificial life support removed. This gives
focus to the above problem.
11. To put the above discussion in perspective,
we realize that an inquiry into what a
majority of people would do in
circumstances that truly were similar
assumes an objective viewpoint not far
removed from a reasonable person standard.
While we recognize the value of this, we
should make it plain that the primary test is
subjective in nature, that is the goal is to
determine with as much accuracy as possible
the wants and need of the individual
12. Based on all the facts, it is believed that the
lower court made the correct decision not to
go through with treatment since the negative
factors for the individual outweighed any
ii. In re Spring
1. The temporary guardian of the ward, Earle
Spring, an incompetent, and the ward’s wife
petitioned for an order to remove machines
sustaining the life of the ward.
2. The ward has been married to his wife for
55 years and he has been an outdoorsman
3. His illness began with an injury and now
three times a week he most go to the
hospital to have a machine treat his body
(like an artificial kidney). He will not get
better and if he does not get this treatment
he will die.
4. He no longer can recognize his family and
he has mental deterioration. He no longer
speaks sense and is disruptive/aggressive at
times. Therefore often he is heavily sedated.
His dementia is irreversible.
5. It is the view of both the wife and son that
the ward would requested to be taken off the
machine if he were competent.
6. A lower court found that the ward should be
taken off life support given several
considerations including that he lived a
robust life, etc.
7. The fact that the family was/is very close
means that they would probably understand
what the ward would want. One thing that
goes against this is that the ward, when he
was competent did voluntarily go along with
the machine dialysis. However, things
change and life takes on new meaning after
being on a machine for more than 5 years.
8. The court found that he should be taken off
the machine given the above.
f. The substituted judgment test also aids in determining whether
organs should be donated, etc.
g. In the years after the Quinlan decision, most courts have
adopted the formula that a patient’s right to choose or right to
refuse medical treatment survives incompetence. It would be
more correct to say that incompetent patients retain the right to
have appropriate decisions made on their individual behalf.
An appropriate medical decisions is one that is made in the
patient’s best interest, as opposed to the interest of the
hospital, the physicians, the legal system, etc.
h. In both Saikewicz and Spring the courts explicitly disavow any
notion that the lives of patients with severe retardation or
dementia are somehow less valuable and worthy of
preservation than the lives of healthy normal individuals.
3. Objective treatment Standards
a. Objective treatment standards incorporate what society
considers to be reasonable medical choices. Objective
standards “reflect a societal consensus” or the perspective of a
reasonable person choosing as most people would choose for
themselves. Quinlan somewhat follows this test.
b. Objective standard typically become important when courts
and surrogate decision makers confront cases in which the
evidence of an incompetent patient’s former treatment
preferences is either nonexistent or ambiguous. In such cases,
decisions makers do not know how the patient’s personal
perhaps out of the ordinary, values and beliefs would shape
the treatment choice at hand. Instead the decision must be
made in light of broader community norms on what constitutes
appropriate treatment for incompetent person in the patient’s
c. Courts view the objective test as the least preferred method.
d. In re Storar
i. A hospital wants to give a blood transfusion to a
retarded man with terminal cancer. That patient’s
mother who is his legal guardian refused consent to
the transfusions because it would prolong his
discomfort and would be against his wishes if he
ii. He had been a patient since the age of five. His
mother lived by and came to visit him everyday. It
was found that he had cancer and they tried to fix it.
Unfortunately it was terminal and so he needed blood
transfusions to live. At this point, after a few weeks
of transfusions, his mother to back consent.
iii. He was to die in a few months and did not understand
what was going on (he had an infant’s mentality).
iv. He seemed to dislike the transfusions and the medical
community seemed to say that it would be no use at
v. Since he had the mentality of an infant, usually a
parent would be allowed to make a choice at this
point. However, no parent can deny life saving
medical treatment, here the State’s interest steps in.
vi. Thus on the record, we have concluded that the
application for permission to continue the
transfusions should have been granted. Although we
understand and respect his mother’s despair, as we
respect the beliefs of those who oppose transfusions
on religious grounds, a court should not in the
circumstances of this case allow an incompetent
patient to bleed to death because someone, even
someone as close as a parent, feels that this is best for
one with an incurable disease.
vii. The dissent finds that the mother would know the
best, and should be allowed to decide.
e. Cruzan v. Harmon (not the supreme court)
i. This case presents a single issue for resolution: May
a guardian order that food and water be with held
from an incompetent ward who is in a persistent
vegetative state but who is otherwise alive and not
ii. Nancy Cruzan’s guardians invoke her common law
right to refuse treatment and her constitutional right
of privacy as basis for their decision to stop feeding
iii. Where the patient is not terminally ill, as here, the
profoundly diminished capacity of the patient and the
near certainty that threat condition will not change
leads inevitably to quality of life considerations. The
argument made here that Nancy will not recover is
but a thinly veiled statement that her life in its present
form is not worth living. Yet a diminished quality of
life does not support a decision to cause death.
iv. The state’s relevant interest is in life, both its
preservation and its sanctity. Nancy is not dead, her
life expectancy is thirty years. Nancy’s care
requirements while total and not burdensome to her.
The evidence at trial showed that the care provided
did not cause Nancy pain. Nor is that care
particularly burdensome for her, given that she does
not respond to it.
v. Finally there is no evidence that Nancy is terminally
ill. The quality of her life is severely diminished to
be sure. Yet if food and water are supplied she will
not die. Given the fact that Nancy is alive and
burdens are not extensive we do not believe her right
to refuse treatment, whether that right proceeds from
a constitutional right or privacy or a common law
right to refuse treatment outweighs the immense,
clear fact of life in which the State maintains a vital
f. IN re L.W.
i. The issues in this case are whether an incompetent
individual in a persistent vegetative state has a right
to refuse life sustaining medical treatment and
whether a court appointed guardian may exercise that
right on the ward’s behalf.
ii. We conclude that an incompetent individual in a
persistent vegetative state has a constitutionally
protected right to refuse unwanted medical treatment,
including artificial nutrition and hydration, that a
court appointed guardian may consent to withdrawal
of such treatment where it is in the best interest of the
ward to do so. We stress that this opinion is limited
in scope to persons in a persistent vegetative state.
iii. This case is the more common judicial position that
treatment withdrawal from permanently unconscious
patients is permissible under the objective standard.
4. A fourth approach to end of life decisionmaking for incompetent
patients merits discussion in its own right even though it is closely
related to the substituted judgment and objective approaches.
Numerous states have enacted legislation explicitly permitting specified
family members to make decisions on behalf of their incompetent
relatives when there is no formal advance directive to guide decisions
on life sustaining treatment.
a. In re Jobes
i. In Quinlan we held that a patient’s family members
were the proper parties to make substituted medical
judgment on her behalf. We make the same
determination today. Family members are best
qualified to make these decisions because they best
know the motives and considerations that would
control the patient’s medical decisions.
b. However, empirical studies show that family members are
often wrong about what decisions they make for patients.
c. Another argument against allow family to make decisions has
to do with distributive justice in which a family member might
weigh money, etc, in front of the true interests of the patient.
8. Decisions on Life Sustaining Treatment – CHILDREN AND INFANTS, Dresser (266-299) and
Schneider and Brinig
a. Newmark v. Williams
i. Colin Newmark, a 3 year old child, is facing death from an aggressive form of
cancer. We are presented with a clash of interest between medical science,
Colin’s tragic plight, the unquestioned sincerity of his parent’s religious beliefs
as Christian Scientists, and the legal right of the State to protect dependent
children from perceived neglect when medical treatment is withheld for
ii. Law permits the State to take over when a child’s life is in danger, but exempts
parents when it is religious based rejection of medical treatment. The parents
also claim 1st amendment rights.
iii. The court concluded that the child was not neglected and they enjoy a well
established legal right to make important decisions for their children. The right
is not absolute, but the State has the burden of proving with clear and
convincing evidence that intervening is necessary to ensure the safety or health
of the child or to protect the public at large.
iv. Since the course of medical treatment is risky and has a large chance of failing,
we find for the parents.
v. There are two basic inquires when a dispute involves chemotherapy treatment
over parents’ religious objections. The court must first consider the
effectiveness of the treatment and determine the child’s chances of survival with
and without the treatment. The court must then consider the nature of the
treatments and their effect on the child.
vi. The best interests analysis has been used for some time for courts authorizing
medical treatment over a parent’s religious objection when the treatment is
relatively innocuous in comparison to the dangers of withholding medical care.
However, courts are reluctant to authorize medical care over a parents objections
when the child is not suffering a life threatening illness.
vii. The linchpin in these cases is an evaluation of the risk of the procedure
compared to its potential success. This analysis is consistent with the principle
that State intervention in the parent child relationship is only justifiable under
compelling conditions. The State’s interest in forcing a minor to undergo
medical care diminishes as the risk of treatment increase and its benefits
viii. The medical treatment in this case only had a best 40% chance of working, and
the most likely outcome was the death of the child. No American court, even in
the most egregious case has ever authorized the State to remove a child from hi
parents and subject him, over parental objection to an invasive regimen of
treatment with only a small chance for survival.
b. Two types of legal proceedings may arise when parents refuse medical treatment for their
children. As in Newmark state officials may seek legal authority to make treatment
decisions on the child’s behalf. Alternatively, prosecutors may charge parents with child
neglect and other criminal violations if a child dies or suffers serious harm because the
parents failed to seek needed medical care. Most states have enacted legislative
provisions exempting from prosecution parent’s refusing care on religious grounds.
c. One of the key questions is what a recognized religion is. Most courts have rejected the
claim that first amendment rights are being squashed by having the State administered
treatment to the child.
d. What about life extending treatment for a child with mental disability. This is the Becker
case, where a boy who was mentally retarded due to Down syndrome had a heart defect
which might have killed him. Surgery could expand his life significantly. His parents,
who had placed him in a residential care facility at birth refused the operation. Citing the
procedure’s 5-10 percent mortality rate, the court refused to declare Philip Becker a ward
of the court (so that the surgery could go forward).
e. The decision provoked controversy and a married couple that had gotten to know Philip
Becker asked a court to appoint them as guardians. The court granted this petition on the
best interest grounds saying that the biological parents had emotionally abandon their
child. The heart surgery was a success and Philip Becker is alive and well.
f. Newmark relies on the best interest standard because the advance directive and
substituted judgment standards are generally inappropriate for minor children. Unless
patients under eighteen are emancipated or mature minors, the assumption is that they
lack sufficient value and preference to serve as the basis of treatment choices made on
g. There are two legally recognized exceptions to the presumption that minors are
incompetent to make their own medical treatment decisions.
i. The law has considered emancipated minors to be adults for most decision
making purposes. With some variation, several statutes and case law define as
emancipated adolescents who have married, borne their own children, joined the
armed services, established residences apart from their parents, or otherwise
acted to achieve independent status.
ii. The mature minor is a more recent exception to the legal presumption that
persons under the age of majority are incompetent to make their own treatment
decisions. This doctrine applies to minors that exhibit the ability to understand
the choices they are making.
1. There is a limit to this doctrine that if parents disagree with the choice
of the child, then they can weigh their feelings in court.
h. Many of the most difficult decisions on life-sustaining treatment involve infants born
with serious physical and mental impairments. As with patients in other age group,
advances in medical technology have made it possible to extend the lives of many infants
who previously would not have survived.
i. During the 70’s controversy brewed over what the correct way to deal with defective
newborns is. Many argued that the parents should decide whether to forego life
sustaining treatment for these children.
j. Infant Doe sparked a new legal controversy when the parents decided to withdrawal
corrective surgery and intravenous surgery. The hospital tried to stop it in the courts, but
the parents won. The hospital then tried to appeal to Washington, but the infant died in
9. Decisions on Life-Sustaining Treatment: Children and Infants – Schneider and Brinig (578-582),
Heath v. Becker Brief
a. Heath v. Becker
i. Phillip Becker was placed in several facilities that were horribly run and his
parents never really took care of him because they thought down on him.
Finally a volunteer worker (Heath) saw him every day and worked on teaching
ii. The Heath’s got in close with him and brought him in as one of their children.
He started pre-school, even though he was above that educational, he was not
toilet trained yet. The Beckers failed to help prepare him for school and they
eventually sent in the consent form for him to attained.
iii. After this, he was elevated to a special school where he was supposed to be
taught to live as a normal independent adult. He was moved to another school
and the Beckers did not care or even think he should be in an educational
setting. All the while the Heath’s drove him around and took care of him.
iv. The Beckers became upset that Phillip was spending some much time with the
Heath’s and so they suspended all his rights in this regard. Philip became upset
and detached because he could not see the Heath’s. He suffered severe trauma
because of this.
v. After the Heath’s tried to file for guardianship, the Becker’s decided to bring
him home for a few visits. The parents did not do this very well, and Phil did
not like them.
vi. Philip needed surgery on a heart problem that he had. Beckers did not allow it.
vii. Finally the court gave guardianship over to the Heath’s and he has lived with
them ever since.
b. Schneider and Brinig article
10. Health Care Professional’s Liability and the Problem of Assisted Suicide, Dresser 300-312 and
Compassion in Dying v. Washington
i. Although legislation and case law give patients and their surrogate decision
makers significant freedom to choose against sustaining life, this freedom is not
absolute. Court decisions and statutes include restrictions on withholding and
withdrawing of life-sustaining treatment, particularly when surrogate decision
making is involved.
ii. The willingness of health care professionals and facilities to implement
decisions by patients or their surrogates is also influenced by the civil and
criminal liability rules governing such conduct. Most significantly, patient and
surrogate autonomy in end-of-life decisionmaking is limited by criminal laws
prohibiting assisted suicide and active euthanasia.
iii. Additional constraints on patients’ and surrogates’ freedom of choice originate
in the personal and professional ethical principles governing health
1. Health Care Professional’s liability – Civil liability
a. Though physicians often express concern about potential
malpractice liability for participation in a decision to forgo life
sustaining treatment, the actual risk when the health
professional is acting in good faith is practically nonexistent.
b. At least three facts account for the small number of reported
wrongful death cases based on terminations of life-sustaining
treatment. There are three reasons for this-
i. Physicians in general tend to be conservative about
implementing decisions to forgo life support.
ii. Physicians typically will not withhold treatment from
an incompetent patient unless the family agrees.
iii. Existing case law and legislation provide explicit
immunity from civil and criminal to health care
providers forgoing treatment as long as the provider
complies with the relevant legal rules governing
when treatment may be withheld.
c. Medical professionals have generally been negligent, instead,
for failure to implement a patient’s request to forgo treatment.
A few courts have declared that health care providers may be
liable for administering unwanted life-sustaining treatment.
d. There are problems with this because of claims for ‘wrongful
life’ seems to be a confusing concept.
2. Health professional’s Liability – Criminal Liability
a. There has been only one reported case in which a court was
asked to impose criminal liability on health professionals
participating in a decision to forgo life-sustaining treatment.
b. Barber v. Superior Court
i. Patient undergoes surgery that is completed fine, and
then had a heart-attack in post-op. He was revived
and put on life support. During the next few days it
was determined that he was in a continual vegetative
state and would not recover.
ii. The family was notified an ordered he be taken off
life support. He lived on and so then they ordered
him to be removed from nutrition/hydration.
iii. Under the circumstances of this case, the wife acted
as a surrogate and would have qualified to make this
decision. In summary we conclude that the
petitioners omission to continue treatment under the
circumstance, though intentional and with knowledge
that the patient would die, was not an unlawful
failure to perform a legal duty.
c. Barber expresses strong support for family decision making
and refuses to require either formal legal or court authorization
for non treatment prior to a decision to forgo disproportionate
d. Barber adopts an analysis courts commonly invoke to
distinguish forgoing life-sustaining treatment from ‘active
euthanasia’ which is considered homicide. The act-omission
and causation analyses underlie the widely-accepted
classification of treatment withholding and withdrawal as
passive euthanasia which is legally permissible in maybe
e. Conversely, deaths produced by a lethal injection, medication
overdose, or other cause entirely unrelated to the incapacities
produced by the patient’s illness are classified as active
euthanasia or suicide.
f. There is one important exception to the rule prohibiting
clinicians from acting affirmatively to cause death. With
origins in Roman Catholic moral theology the doctrine of
double effect holds that it is sometimes permissible to perform
acts having both good and bad effects. Here, a doctor might
be attempting to hasten death but use drugs that will try to
save them normally. Posing as good, but really bad.
g. Physicians have been prosecuted for mercy killings but rarely
get convicted. Juries usually let them off.
h. One of the biggest issues at the end of this decade is whether
to legalize physician assisted suicide. A majority of the public
believes that it should be legal.
i. One of the negatives is that physicians would be seen as death
deliverers rather than healers. This might break the
patient/doctor connection. There could be abuse of such a
system and also less caring for those seriously ill.
3. Compassion in Dying v. Washington
a. Three terminally ill patients, four physicians and non-profit
organization brought suit against the state of Washington
seeking declaration that statute that prohibited causing or
aiding another person to commit suicide violated Federal
b. All patients were terminally ill and competent. All died before
the case. The doctors were given standing however to argue
c. We now affirm the District Court’s decision and clarify the
scope of relief. We hold that the ‘or aids’ provision of
Washington state as applied to the prescription of life-ending
medication for use by terminally ill competent adult patients
who wish to hasten their deaths violates the Due Process
Clause of the 14th Amendment.
d. The essence of the substantive component of the Due Process
Claus is to limit the ability of the sate to intrude into the most
important matters of our lives at least without substantial
e. Our conclusion that there is a liberty interest in determining
the time and manner of one’s death does not mean that there is
a concomitant right to exercise that interest in all
circumstances or to do so free from state regulation. Now
there is a weighing process between the liberty interest of the
individual and that State interest.
4. However on cert - On certiorari, the United States Supreme Court
reversed. In an opinion by Rehnquist, Ch. J., joined by O'Connor,
Scalia, Kennedy, and Thomas, JJ., it was held that the Washington
statute did not violate the due process clause--either on the statute's
face or as the statute was applied to competent, terminally ill adults
who wished to hasten their deaths by obtaining medication prescribed
by their physicians--because (1) pursuant to careful formulation of the
interest at stake, the question was whether the liberty specially
protected by the due process clause included a right to commit suicide
which itself included a right to assistance in doing so; (2) an
examination of the nation's history, legal traditions, and practices
revealed that the asserted right to assistance in committing suicide was
not a fundamental liberty interest protected by the due process clause;
(3) the asserted right to assistance in committing suicide was not
consistent with the Supreme Court's substantive due process line of
cases; and (4) the state's assisted suicide ban was at least reasonably
related to the promotion and protection of a number of Washington's
important and legitimate interests.
11. Limitations on End of Life Decision making and the Problem of Assisted Suicide, Dresser – 353-
367, Washington v. Glucksberg
a. Netherlands have doctor assisted suicide rules that seem to work. Doctors must report all
cases of euthanasia. There are other very strict rules. There are questions of how much
the law is applied and how good the reporting process is.
b. The supreme court leaves legalization of doctor assisted suicide to the states. By 1999
only Oregon had legalized it though.
c. The Oregon law limitd access to physician-assisted suicide to a relatively small group of
patients, namely competent adults with predicted life expectancy of six months and the
physical capacity to self-administer the death-producing medication.
d. One difference between the Netherlands approach and Oregon is that the Netherlands
require someone to be in pain, Oregon does not.
e. Some argue that patients should just be better informed about resisting feeding and
hydration, and in that way they can control their own fate.
f. Washington v. Glucksberg
i. Basically states can disallow physician assisted suicide.
12. Request for Futile Life Sustaining Treatment, Dresser 368-411
a. According to the general rule governing decisions to forgo life-sustaining treatment, the
patient or surrogate, not the physician, is authorized to decide whether a particular life-
sustaining intervention’s potential benefits are sufficient to justify its use. In other words,
physicians cannot unilaterally determine that life-sustaining treatment should be
administered, based on their own assessment of its risk and anticipated benefits.
Discussions of futile treatment ask whether, and if so, when, physicians should be
authorized to withhold information on or deny a patient’s or surrogate’s request for an
intervention on grounds that it is medically inappropriate.
b. This would be trying to use CPR when it is impossible to resuscitate someone
c. Some futility situations involve giving a patient potentially life extending treatment, but
in a severely compromised state.
d. Some futility judgments reflect opinions on resource allocation. Since doctor’s have
stewardship over most of the medical resources available, they make important decisions
that distribute these. It is reasonable to claim that there are limits on an individual
patient’s entitlement to specific medical interventions, and that physicians should have no
duty to provide inappropriate treatment.
e. To date the predominant view is that physicians should have unilateral authority to forgo
treatment only when an intervention would be futile in the narrow physiological sense.
By contrast it is generally agreed that physicians should not have the authority to deny
requests for life-sustaining interventions if the reasons for the denial involve the patient’s
quality of life or the costs involved in giving the treatment.
f. Matter of Baby K
i. The hospital instituted this action against the family seeking a declaratory
judgment that it is not required under the Emergency Medical Treatment and
Active Labor Act to provide treatment other than basic care to a baby with only
a brain stem. Because the baby was presented to the hospital with respatory
care, the hospital must continue this care regardless of its futility.
ii. The mother would not allow the child to go without the help of the machine
when it had trouble breathing, even thought he hospital recommended it.
Therefore it was moved to a nursing home. Everytime it had trouble breathing it
was readmitted to the hospital to get the breathing under control.
iii. The EMTALA was put into effect because hospitals were trying to dump
patients on other hospitals without stabilizing their condition. This applies here,
where the baby must be stabilized with breathing before it is returned to the
g. What about ideas of the ‘slow code’ which doctors just do not rush to try to save
someone that they deem as being a futile effort? Also there is the idea of coercion, which
doctors may instill when presenting choices to parents, patients, and family based on the
doctor’s personal feelings concerning the futility of the treatment.
h. Some say that having more advanced directives and physicians working with the futility
of treatments in mind, then health care costs would go down. However, the estimated
savings is small, because the care at the very end of life is expensive proportionately.
i. Health professionals’ conscientious objections to decisions on life sustaining treatment
i. Treatment judgments reflect the medical and nursing profession’s general
agreement that forgoing treatment in such situation accords with professional
and ethical standards. But not all members of the profession share this view.
Individual physicians and nurses may have religious and other moral convictions
to the contrary. According to legal and professional ethics authorities the best
remedy for such conflicts is to transfer the case to another professional whose
moral beliefs are consistent with the patients or surrogate’s wishes.
ii. In re Jobes
1. Nancy Jobes got in a car accident in which her fetus was injured. In an
operation to remove it, she lost oxygen to her brain and fell into a
persistent vegetative state. Her husband and parents requested that the
nursing home that housed her remove her feeding and hydration tube.
The nursing home refused on moral grounds.
2. The trial court found through clear and convincing evidence that
removing the feeding tube was the right thing, but that the nursing
home was entitled not to participate. It was decided that the tube would
have to remain until she was transferred to another facility that could
complete the operation. Given the circumstances of this case we
disagree and we reverse that portion of the trial court’s order.
3. Mrs. Jobe’s family had no reason to believe they were surrendering the
right to choose among medical alternatives when they placed her in the
nursing home. The nursing home did not inform the Jobes family of
this policy toward feeding tubes until it was too late.
4. We do not decide on if they had told the Jobes before hand if this
would be permissible. We do decide that he evidence indicates at this
point it would be extremely difficult to move Mrs. Jobes to another
5. We recognize that our decision will be burdensome for some of the
nursing home personnel. Nevertheless, in view of the immense
hardship that would fall on Mrs. Jobes and her family if she were
forced out of the nursing home, we are compelled to impose on it for
her continued care.
iii. Another similar case is the one of Beverly Requena who wanted to withhold her
feeding. The health provider would not do it. The hospital tried to move her to
another facility. When Requena did not take the transfer, the hospital took her
to court to compel her to leave. The court found for her on ground that he
interest in remaining in the facility that had become her home took priority over
those of the hospital personnel opposed to participating in her decision.
j. Decisionmaking Procedures
i. Procedural issues often arise in the course of end of life decisionmaking. One
set of questions involves when to ask a court or other authoritative body to
determine: 1) a patient’s competency to make treatment decisions; 2) the proper
surrogate decision maker for an incompetent patient; or 3) the proper outcome of
a request to forgo or continue life-sustaining treatment.
ii. The law generally does not require or encourage persons to seek advance
judicial approval of their actions.
iii. Health care providers have been advised to seek judicial review when the
following situations are present:
1. interested parties disagree about end of life treatment for a incompetent
2. a potential surrogate seems to be motivated by financial items
3. a surrogate is not being as protective as they should be
4. family members disagree
5. professionals disagree about care
iv. Not all courts take a conservative view on judicial involvement. Some make it
mandatory in certain circumstances. This may be true in nursing homes when
care is withdrawn.
v. The President’s committee on these issues recommends that ethics boards be set
up in medical facilities to help figure out these issues. Because of the
president’s report it was estimated that about half the hospitals had active ethics
committees. The alternative to this is to have an independent ethics consultant
that goes to hospitals to resolve these issues.
13. Medical Malpractice and the Regulation of Medicine, Havighurst 923-955
a. As a subcategory of the law of torts, the law of medical malpractice deals with injuries
arising out of medical care provided in doctor’s offices, in hospitals or elsewhere.
b. The system of fault based tort liability has traditionally been credited with securing two
distinct though generally compatible objectives.
i. First, the values of corrective justice and fairness require that losses that have
already occurred as a result of careless action should be shifted from the
innocent patient-victim to the culpable party.
ii. Second the prospect of being sued and having to pay for such losses will serve
as a financial and emotional incentive to doctors to provide more careful
treatment to their patients in the future.
c. The tort system is designed to compensate all losses of patient victims injured through the
fuel of their doctors but in fact it compensates losses of injured patients who cannot
establish physician culpability. Tort critics charge that this substantive policy accounts
for two crucial deficiencies of the system as a vehicle for compensatory insurance.
i. the most obvious flaw is that some people are really injured but do not win
ii. Big awards are put out for pain and suffering, etc.
d. There is one benefit too that is sometimes overlooked which is deterrence. However,
large insurance coverage might protect doctors from this.
e. There might be over deterrence in the system where doctors waste resources to ensure
that they will not open themselves up to liability.
f. Enterprise liability is placing blame on an entity for any liability matters, because that
entity (hospital, etc) could then try to change the system, rather than insurance
g. Collateral source rule hides from juries other forms of income a plaintiff may have
coming to him because of an injury (so they will not reduce their reward).
h. Review page 992
Iatrogenic Injuries - those arising out of medical treatment
Tort Law for Malpractice:
Compensation of patients:
Irony between malpractice insurance to losses to patients and large awards given
for non pecuniary losses (pain and suffering)
treatment costs reimbursed without any application of coinsurance deductible
burdensome to prove doctor’s fault
Prevention of negligence / Deterrence:
malpractice doesn’t serve to improve quality of care b/c
- insurance covers costs not docs directly
- awards low / high depending on the severity of injury not level of fault
Even optimal preventative practices have diminishing returns
spreads costs for injury
spreads societal costs of prevention
Over-Deterrence = Defensive Medicine - unnecessary and inappropriate tests
overestimate risk of being sued
many fewer malpractice cases then negligent adverse events (10/1)
most injuries short lived or person was over 70 years old
Carson V. Maurer - Supreme Court of New Hampshire
(New Hampshire) Statute setting forth rigorous standards for malpractice cases
2 yr. statute of limitations
notice of intent to sue 60 days in advance
established a fee scale for attorneys
collateral source rule not apply ( gets full recovery from tortfeasor and gets $ from
other sources such as insurance => this double recovery allowed under rule)
Equal Protection Violation - patients different from other tort victims
Test: are the classifications reasonable and do they have a fair relation to the object
Holding: won’t second guess reasonableness of classifications (much leeway)
Constitutionality and Test for reasonable/rational relation to purpose of statute
(Purpose - the containment of medical injury reparations system cost)
- Statute of Limitations will not begin to run until time when plaintiff discovers
both the injury AND it’s cause
- Notice requirement unconstitutional - no reasonable relationship to stated
purpose, already have service requirements (bureaucratic hurdle)
- Disallow use of collateral source rule - (no double recovery) results in lower cost
to docs for insurance and higher costs to public in health insurance
It is unconstitutional b/c puts greater burden on victim and discriminates to not
allow for only these people
- Damage cap for pecuniary loss - It is unconstitutional b/c disc. and not fully
cover costs to injured party (no quid pro quo here)
- Allowance for periodic payments to injured until dead, trying to ensure damages
are used for their intended purpose - It is unconstitutional b/c disc. for health care
providers b/c saving them much $
- Limiting attorney’s fees - It is unconstitutional b/c no proof that juries look at
this when arriving at damages number therefore not contain malpractice costs
and creates incentive for less attorney’s to do this sort of work
Fein v. Permanente Medical Group - US Supreme (CA)
CA Statute Caps medical malpractice damages at $250,000 for non-economic losses
(pain, inconvenience, other non-pecuniary damages)
Due Process Violation -
Holding: No b/c allows court to increase damages if in line with interests of state
Equal Protection Violation -
Holding: No b/c rational response to increasing malpractice costs (otherwise no one will recover)
Said there is quid pro quo:
Need this to cut back on common law rights
here => preservation of the viable malpractice insurance industry
but other states say there is no specific benefit to injured
Is the insurance crisis so bad and costs so high for docs. that leg. reform is necessary and
congress must step in?
Should there be caps on recovery of a particular type or total recovery?
Review of Medical Malpractice Doctrine:
State courts can adopt a stricter standard for reviewing the constitutionality of doctrine
Fed. limited by “means scrutiny” standard - discrimination based on gender or illegitimacy
Jones Case - Idaho
state court trying to determine if there truly is a crisis in the medical malpractice cases to
justify a legislative actions that were taken
Federal Attempts to Reform Malpractice Laws
Because state court attempts fail on constitutional grounds
Need federal gov. to do (is it within their scope) - create more rational and predictable
system of malpractice legislation
Generally attempts are to:
lessen statute of limitation - AB rules on page 973
1. 2 years from time of actionable act
2. 1 year from time of discovery of injury
3. max is 8 years except for cases of foreign objects left in body or fraudulent concealment
- respect the state of repose
4. tolled during continuous treatment
5. apply equally to adults and minors (but minor’s rep. has until 18th b-day to sue)
cap damage recovery for 1 type of loss or for total recovery
Roa v. Lodi Medical Group - Supreme Court of CA
Limiting Attorneys’ fees in medical malpractice actions when using a contingency fee
- claim that law infringes on right of victims to retain counsel to sue to such an extent that
won’t be able to find counsel (cap low)
- defendants can pay market rate and receive competent rep. but plaintiffs limited
- instead claim sliding scale is better - if progressively higher amounts recovered
(otherwise conflict of interest with client)
Paul Weiler - The Impact of Malpractice Legislation
Effects on premiums paid by docs. -
mandatory screenings raised these premiums
Effects on frequency, severity, and total cost of claims -
Most - no collateral source rule - reduced severity by 50%
cap on damage awards - reduce severity by 19%
lowering statute of limitations - reduces claims by 8% per year the limitation was lowered
Effects on insurer costs -
Mandatory collateral source rule - 21% reduction
Cap on non-economic damages - 23% reduction
cap on total damages - 39% reduction
Standards of Liability (using informed consent vs. res ipsa, etc.) - least effective
Access Rules (statute of limitations, screening req., attorneys fees) - modest impact
Limits on Damages - most striking results
Legal Standards of Care
Generally tort theories applied and no COA based on contractual obligations.
Also, doctor and patient cannot contract to lessen legal duty of care
but can they contract to increase duty of care?
*award based on patients’ reliance
In medical malpractice cases must prove:
1. dutiful relationship bwtn. doc. and patient
- Docs. freedom to choose who he’ll contract with
- If physical for a job - doc./ patient relationship created
- Duties to third parties - failure to warn or treat patient put another at risk
- Good Samaritan laws - excuse physicians when acting in emergencies when not
obligated to act
- duty of non-disclosure
3. breach of a legal standard of care (negligence)
4. causal relationship bwtn. negligence and injury
Duty of Care:
1. reasonable and ordinary degree of skill and learning
2. commonly possessed and exercised by others
3. who are of the same school or system as the defendant
4. who practice in the same or similar locality
5. and exercise of the defendant’s good judgment
=> customary practice as defined by expert testimony
Jones v. Poretta - Supreme Court of Michigan
should a jury be instructed that a doctor or surgeon is not a guarantor of results as a part
of the standard jury instructions => court held it was okay here b/c after this statement
gave instructions for duty of care by doc.
Burden of Proof
Expert Testimony - links medical malpractice and scientific knowledge with legal system
Conspiracy of Silence amongst doctors
Broken down by Res Ipsa Loquitur - pits all defendant’s against each other by
shifting burden of proof onto them to prove they weren’t at fault
Buying experts or choosing partisan experts
Difficult even for experts to determine based on charts what happened
Expert Qualifications laid out by some states
Kramer v. Milner - Appellate Court of IL
doctor failed to tell patient to get a breast cancer screening (mammogram) while she was
under his care => patient died
- Doc. said he took other preventative measures like increased visits to check for cancer
- Expert Testimony - not following Am. Cancer Society guidelines violates standard of
care b/c at that time 80%-90% of doctors followed their guidelines
Holding: court considered the compliance rates as evidence of professional conduct standards
Question of Admissibility regarding guidelines, regulations as opposed to statutes or
- on the other hand - compliance with a guideline may not shield you from a malpractice action
Guidelines could be used as a complete defense for complying physicians
BUT they failure to comply cannot be admitted by plaintiffs
Hood v. Phillips - Supreme Court of Texas
injuries suffered by patient as a result of a surgery for emphysema that was not medically
accepted - carotid surgery
experts stated this surgery was used by very few doctors and was not beneficial, further it
could be harmful
other experts stated surgery could have beneficial effects
lower court: stated that if a respectable minority of physicians follow then not
malpractice if follow those same procedures
Holding: burden of proof on plaintiff/patient
other possible standards:
- when reasonable surgeons disagree...
- when competent medical authority is divided...
- when considerable number of professionals disagree...
- would a reasonable and prudent doctor not have done this surgery - this court
Gates v. Jensen - Supreme Court of Washington
Woman has glaucoma. Court finds that informed consent means that a physician has a
fiduciary responsibility to inform a patient of abnormalities with her body. This applies
to consent to circumstances other than treatment of a diagnosed disease.
Helling v. Carey - similar facts and questions
Reasonable prudence may require a standard of care higher than that exercised by the
relevant professional group
- moving from standard of the profession test to a general reasonably prudent person test
- the custom will not restrict courts in their determinations of negligence
Court basically forcing a change in the customary practice of medicine
- Pressure tests can be used to detect glaucoma but were only commonly given to people over
- woman in her 30s complained of bluriness, doc. not giver her tests and she went blind
- Court held that it’s negligence not to administer tests regularly to people under 40
Factors noted by court (very fact specific decision):
- glaucoma can blind a person without warning
- tests inexpensive
- harmless test
- blindness irreversible
Shilkret v. Annapolis Emergency Hospital Association - Court of Appeals Maryland
What is the proper standard of care?
Strict locality rule is-
1. the standard of care exercised by physicians in the defendant’s own community
Similar Locality rule is-
1. the standard of care observed by physicians of ordinary skill and care in either the
defendant-physician’s locality or in a similar community
Strict Locality Rule - problems with it:
1. wall of silence
2. low standard of care in some smaller communities
Similar Locality Rule still faces #2
Some courts stretch to the “medical neighborhood” - readily accessible information for
Justifications for this rule no longer exist - medical school, communication, literature, seminars
Holding: duty of care and skill which is expected of a reasonable, competent practitioner
in the same class to which he belongs, acting in the same or similar circumstances
Basically a national rule.
National Standard for Specialists came next
Trend to abandon locality for general practitioners as well
Hall v. Hilburn - Miss. Court
national competence based duty of care with a resources based caveat (if tech. not available)
Failure to Diagnose
Not a commission of an error but an omission
Courts hesitant in these cases b/c more likely that it’s a judgment call
Managed Care system is giving more credence to these cases - failure to test, time, etc.
How great must the % of lost chance be:
1. All or nothing approach - must show a better than even chance of avoiding injury
or death, if prove then get full compensation for whatever injury (not lost chance)
2. relaxed standard of proof approach - proof that a substantial or significant chance
of survival or better recovery was lost - once this threshold met, jury determines
whether causation existed by a preponderance
(Herskovitis - 14% chance of survival lost -actionable)
3. any loss of chance approach - no threshold, always apply if any lost chance at all
Proportional Damage approach
Liability for Defective Products
Porter v. Rosenburg - 650 So.2d 79, # (4th Dist. 1995) Dist. Court of Appeal of Florida
Porter arguing for strict liability for defective products should include physicians b/c they
profit from its distribution and share in profits, should also share in losses
- breast implants were defective
Strict liability for defective products based on:
- promote public safety by
- adequately compensate injured
- deter further production of defective products
- distribute the risk of loss
Reasoning for not including doctors:
- not in business of selling products
- expertise in treating illnesses
- not focus of physicians delivery
- if the medical services could not have been rendered without using product
(necessary to have that product) => strict liability not apply
- if predominant purpose of physician/patient relationship was for judgment, skill, and
expertise => strict liability not apply, general malpractice rules apply
- if however sales and distribution aspect predominate over the services aspect
Kozup v. Georgetown University - 663 F. Supp. 1048, # (DC 1987) US Dist. Court, DC
Plaintiffs want to apply Strict Liability to AIDS contaminated blood as an abnormally
Classify the Am. Red Cross as selling blood
Necessary for patients, great demand
impossible to screen everyone
not a sale of goods, providing of a service
Blood Shield Statutes - solves problem by forbidding strict liability for blood (products)
and blood should not be bought and sold, donated blood better
Negligence Standards for Blood
- if follow customs of care and industry standards - not liable
- necessary for life saving
- screening not a part of the standard of care early on
Deterrence Benefits of Negligence
- courts may not be able to successfully compel the right combination of practices
using a negligence standard
(incentives to donors with good records, fewer donors that are paid, test blood in
Deterrence Benefits of Strict Liability - reactions in 1 geographical area based on
Cunningham case (strict liability standard applied)
blood bank committees
hepatitis follow-up system
education for medical staff
use of single-unit transfusions
Duty of Care for Associations that provide safety guidelines in blood usage
Snyder v. American Association of Blood Banks - liable for negligently failing to
recommend surrogate testing of blood donors
- worry about chilling effect on associations promulgating guidelines
Standard of Care for Non-Physician Healthcare Professionals
Fein v. Permanente Medical Group
Standard of care is set among the different professions and sometimes duties overlap, here
nurses are also responsible for some examination and diagnosis of a patient (not just docs.)
Generally held to standards of those within your own practice
Expert Testimony by 1 professional for another group of professionals (ex. orthopedics
for podiatrists) - debatable
can do where principles, techniques, methods, practices, or procedures of one branch are
equal to those of another
standard of care:
1. if licensed by state then held to standard set by experts within that practice group
2. if not licensed then by conventional medical standards to lay standards
ALTERNATIVE TO MALPRACTICE LITIGATION
Designed to evaluate malpractice claims prior to going to court
- constitutional (further state’s interest in avoiding non-meritorious suits, cure crisis)
but in some states effects of law held unconstitutional, burdensome to litigants and
not effective to hold back unmeritorious claims
- early, authoritative, but non-binding assessment of claims
- to encourage settlements
- in some states admissible as evidence in cases, voluntary submission
Currently - repealed or invalidated in most states
Thomas B. Metzloff, Arbitrating Malpractice Disputes: Insights From the Real World,
Duke Law Magazine, Spring 1996, p.7
Binding - can’t go to trial if negative results from this
Non-binding - traditional jury trial still available if plaintiff desires
- more qualified decision makers
- inability of lay juries to resolve complex medical issues
- shorter trial time
- discovery time and evidentiary conflicts lessens b/c less formal of a process
- lessen emotional toll, private and shorter
Negatives , why not use:
- arbitrators can ignore some parts of law b/c no formal review process
- judicial hostility to arbitration
- statutes did little to promote (restricted when would be enforced)
- repeat players that are comfortable with outcomes in regular system
- not change many objectionable qualities of litigation (contingency fees, determining
damages for pain and suffering, high awards)
- not a policy priority
- arbitrators often come to a compromise which does not fully vindicate either side
- perceived as unfriendly to plaintiffs’ side
Colorado Permanente Medical Group, P.C. v. Evans - 926 P.2d 1218 (1996) - Sup. Ct. of CO
wrongful death and medical malpractice suit - is k clause requiring arbitration enforceable
=> Kaiser required by contract arbitration of any claims brought by the policy holder
Section of Health Care Availability Act (HCAA) requires all contractual arbitration agreements
to be 10 font size in contract, and allows insured to rescind with 90 days of signing
BUT HCAA provision only applies to K’s between healthcare providers and patients
Issue 1: is Kaiser a healthcare provider
Holding: HMOs covered under the Federal Coverage Act and also must comply with HCAA
Issue 2: HCAA is preempted by Federal Arbitration Act
Holding: issue not raised in trial court so off limits now
HMO is not a healthcare provider - can contract with and employ healthcare providers
under state definition (Kaiser not certified and licensed to deliver healthcare)
Many state statutes allow private waiver agreements of right to sue
Federal Arbitration Act - arbitration clauses in K’s are valid and enforceable
=> therefore this federal law preempts any state law prohibiting arbitration
but may be able to restrict it in some cases
Madden v. Kaiser Foundation Hospitals - 17 Cal.3d 699, # (1976) - Sup. Ct. of CA
- State Employees Retirement Act delegated the administration of the act to a board
who had power to contract with different healthcare carriers
- when state signed on with Kaiser no arbitration requirements
- in 1971 initiated mandatory and binding arbitration for all claims arising from the
violation of a legal duty incident to this Agreement and sent mailing to all members
- patient had her bladder perforated during a hysterectomy
- later contracted serum hepatitis b/c of this
Issue: did the State Board have implied authority to negotiate binding arbitration as an
agent for the employees
- arbitration is a reasonable restriction
- agent as a fiduciary has power to agree to arbitration
- benefits to choosing arbitration for patient - costs of plans lower overall, speedy
Issue: is this a contract of adhesion such that enforcement would be barred
Holding: this is not a contract of adhesion b/c board had bargaining power and elected to
represent the employees
Contracting out of Liability
Tunkl v. Regents of the University of CA
- hospital presented to all incoming patients a release document clearing them from all
negligent or wrongful acts
- patients had no realistic choice to turn down the agreement and go to another hospital
therefore not valid, no bargaining power with hospital
Emory University v. Porubiansky - 248 Ga. 391, # (1981) - Sup. Ct. of GA
- patient had an impacted tooth removed by a doctor employed by a dental clinic
- her jaw was broken during procedure
- patient signed an Information Consent form that barred any actions
- an attempt to relieve the clinic its employees and students from a statutory duty of
care for licensed professionals frustrates the policies of the state as expressed
through the General Assembly
- dentistry is licensed through the state
- but as a part of a teaching facility can try and limit liability
but doesn’t allow for an exemption from the duty to exercise reasonable care
- will allow people to contract as they wish (docs can enter into binding K’s w/ patients)
unless they are violating public policy and clearly harming public
- but here strong public policy of state to protect the health of its citizens
- Price Concessions in Doctors’ services in exchange for a liability waiver
- Other forces that would come into play if all malpractice preempted by contracts
better solutions if all options given to the doctor/patient
collective vs. individual choice
No-Fault = Strict Liability
Sweden and New Zealand have
quality problems addressed in marketplace or by regulatory means
No Fault Compensation - compensate victims w/ xyz problems regardless of cause
No Fault Liability - shift injury cost from injured person to providers (they can spread out cost)
- remove fault issue from equation b/c expensive
- many unfortunate cases needing $ but not attributable to negligence as legally defined
but w/ reasonable costs the injuries can still be prevented (incentive to prevent and
Designated Compensable Events Proposal (DCE)
cover a pre-determined list of mishaps resulting in injury and leave rest to tort
liability system, strengths:
- strong impetus towards prevention
- quick resolution to claims
- reduce practices of defensive medicine some
- flexible list
what events are covered?
Issue of Avoidability - if have little control regarding a specific outcome, less likely to
be on the list (issue of fairness)
Are the benefits of maintaining the opportunity for determining fault worth the
cost? (presumption of fault shouldn’t be there for all recoveries)
- frequency for therapy induced injuries (iatrogenic) vs. preventable injuries
- should be preventibility through medical knowledge or unexpected
Quality of Care
- the hospital and medical staff will have an incentive to work together to take
Hospital - infections
Individual Physicians - if bear primary responsibility for medicine reactions
both will bargain together to prevent all of this from happening
- social insurance - spreading of cost
- less victimization feeling among docs
- allow costs to lie with patients if injury is their fault - not following docs. orders, etc.
- administrative simplicity