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If your facility is like most others, complying with the federal Patient Self Determination Act probably means little more than making sure patients are asked whether they have an advance directive, providing educational literature, and filing the forms in the chart.
But, failure to comply is leaving your facility vulnerable to a flood of lawsuits, experts advise.
"I am having a real hard time with our medical staff and some of our nursing staff accepting the right of a patient [to refuse treatment]," admits Charles Baggett, ARM, FASHRM, director of risk management for Mount Sinai Medical Center in Miami Beach. "If they do treat them, it is battery. It is providing treatment that was refused and denied. It is a lawsuit for wrongful life."
A recent survey among health care providers shows that advance directives are not being honored. As a result, hospitals and health care providers now are being confronted with a new wave of lawsuits seeking money damages for wrongful life. These lawsuits are a natural outgrowth of ignoring patients’ wishes and present a new risk for health care facilities, legal and risk management experts tell Hospital Risk Management.
According to the study of six medical centers, the results of which were published last fall in the Journal of the American Medical Association, large gaps existed between the kind of treatment patients wanted and the treatment they actually received. For example, the survey revealed the following startling statistics:
• Thirty-one percent did not want cardiopulmonary resuscitation, but 80% of their physicians either ignored or misunderstood their wishes.
• Forty-nine percent of patients who wanted their doctors to write do-not-resuscitate orders did not get their wish; those who did had to wait from 22 to 73 days for the physicians to comply.1
One outgrowth of this failure to honor advance directives is a stream of lawsuits, and risk managers are starting to sit up and take notice.
In a highly publicized case in Flint, MI, this year, a hospital was slapped with a verdict in excess of $16 million dollars for allegedly treating a woman against her wishes. According to news reports, the plaintiff, a young woman suffering from debilitating seizures, completed an advance directive providing her mother with the right to stop treatment if she became incapacitated.
After the plaintiff suffered a seizure, the hospital put the young woman on a ventilator and tube fed and maintained her through a two-month coma despite her mother’s directions to terminate the life support. The young woman was left permanently incapacitated and requires round-the-clock care.2 (For other "wrongful life" lawsuits, see story, p. 132.)
Legal and risk management experts say these types of lawsuits will become more common as hospitals continue to ignore advance directives. They caution health care risk managers to evaluate how their facilities respond to advance directives.
"This is an area where risk managers can work real well along the entire continuum to ascertain how compliant their admission staff is with the law, how the emergency department functions, and how other departments are meeting the law," says Faye Rozovsky, JD, MPH, DASHRM, director of risk management and legal affairs for AIG Healthcare Management Services in Wynnewood, PA. "Also, risk managers can help facilitate the development of appropriate practical policies and procedures to make sure that the mechanisms are in place to follow the requirements."