PATIENTS' RIGHTS: LANDMARK LEGAL CASES

    “Americans have made progress in end-of life care by asserting their autonomy through the courts and legislation and have largely thrown off paternalistic decision-making by physicians through the realization of a number of patient rights. The right to refuse medical treatment has been supported in common law and by the U. S. Constitution. In a 1914 informed consent case, Justice Cardozo ruled, ‘every human being of adult years and sound mind has the right to determine what shall be done with his own body.(1) This ruling has been cited in numerous common law cases establishing a precedent regarded as necessary to sustain life. Other cases have based the right of self-determination on the U. S. Constitution’s implied right to privacy and on the liberty interests identified in the Fourteenth Amendment. The right to refuse unwanted life-sustaining medical treatment gained explicit constitutional recognition in the Cruzan case with the U.S. Supreme Court’s assertion that a competent patient has a constitutionally protected liberty interest in refusing unwanted treatment.(2)  

Patients have secured the right to refuse life-sustaining treatment even in the setting of non-terminal illness. In the case of Elizabeth Bouvia, a young woman with severe cerebral palsy, but without life-threatening illness, the California Court of Appeals ruled that she had the right to refuse treatment with artificial nutrition.(3) Patients have also used legislative action to establish the option of controlling health care decisions in advance of mental incapacity by completing advance directives or by delegating decision-making rights to another individual who can serve as a health care proxy with durable power of attorney.(4)

Finally, in cases where patients lack decisional capacity and formal advance directives or proxy designations, their right to be free of unwanted treatment can still be exercised through a hierarchy of two decision-making standards: substituted judgment, and best interests. The substituted judgment standard requires a surrogate decision-maker, usually a close family member, to make the decision he or she believes that the patient would have made, based on past statements made by the patient [the recent Terri Schiavo judgment is an example]. The best interests standard is used when there are no applicable past statements and the surrogate is asked to make decisions based on what is judged to be in the patient’s best interest.(5),(6)

“In the event that the patient has not appointed a surrogate in a written designation, many states provide for a statutory order of priority. For example, in Florida, the following individuals in order of priority are authorized to make medical decisions on behalf of the patient:(7)

The dissolution or annulment of the marriage of the patient revokes the designation of the patient’s former spouse as a surrogate. Generally, most state laws provide that a surrogate’s decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen, had he/she been competent,(8) and not one that the surrogate might make for himself or herself, or that the surrogate might think is in the patient’s best interests.(9) However, there is a developing body of statutes and cases that allow a surrogate to look at the best interests of the patient in the absence of evidence of the patient’s wishes.

The procedure that is generally followed is that, if the attending physician concludes that the patient lacks capacity to make health care decisions, another physician must evaluate the patient’s capacity. If the second physician agrees that the patient lacks the capacity to make health care decisions or provide informed consent, the health care facility must enter both physicians’ evaluations in the patient’s clinical record. The surrogate’s authority commences upon the determination and continues until a determination is made that the patient has regained such capacity.

The difficult question arises as to what to do in a case where the patient, while competent, simply never expressed a clear and specific preference as to his or her wishes.  The surrogate must consider the patient’s prior statements about and reactions to medical issues, all the facets of the patient’s personality with which the surrogate is familiar – with of course, particular reference to his or her relevant philosophical, theological and ethical values – in order to extrapolate what course of medical treatment the patient would choose.(10) In patients lacking in decisional capacity, controversy sometimes arises over what is perceived to be the patient’s preference for treatment. Clear communication among concerned individuals can often resolve any conflict and individuals commonly defer to the health care surrogate for a final decision. However, the patient’s family, the health care facility, the attending physician, or any other interested person who may reasonably be expected to be directly affected by the surrogate’s decision, may seek judicial intervention,(11) if that person believes:

Physicians are commonly concerned about liability in end-of-life situations, particularly when a vocal family member demands that “everything be done.” The physician is especially prone to worry about liability in the patient who is in a medically futile condition, such that no matter what "curative" treatment is attempted, the physician anticipates a bad outcomes with certainly and, thus, worries about liability. However, this is the very patient who needs for treatment emphasis to shift totally to palliative care. Clear communication with the family is critical in such patients: that everything of that is possible benefit to the patient should be done; that cure is no longer possible; but that it is possible to provide the patient comfort and a good death when death inevitably come

Historically, there has been almost no successful litigation of physicians for refusing to deliver futile, aggressive care.(13) There is, however, an increasing trend toward liability for failing to honor a patient’s Advance Directives or for performing a procedure without adequate informed consent (a physician may be liable for an adverse outcome, even if there is no negligence, if informed consent is not obtained). Ultimately, doing what is best for the patient is the safest legal course of action.

^[1] Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92 (1914).

^[2] Cruzan v. Director, 110 S.Ct. 2851 (1990).

^[3] Bouvia v. Superior Court, 225 Cal. Report. 287 (Cal. App. 1986).

^[4] Areen J, The legal status of consent obtained from families of adult patients to withhold or withdraw treatment. JAMA. 1987;258:229-235.

^[5] Sanbar SS, Gibofsky A, Firestone MH, LeBlang TR. Legal Medicine. 4th ed. St. Louis, Mo: Mosby. 1988:359-361.

^[6] Doty WD and Walker RW.  Medical Futility. Clin Cardiol 2000:Vol. 23 (Suppl. II),II-7 – II-8.

^[7] Fl. Stat. § 765.401.

^[8] Fl. Stat. § 765.205.

^[9] In Re: Guardianship of Browning v. Herbert, 568 So.2d 4,13 (Fla. 1990).

^[10] Matter of Jobes, 108 N.J. 394, 415, 529 A.2d 434, 444 (1987), aff’d 438 Pa. Super 610, 652 A.2d 1350 (1996).

^[11] Fl. Stat. § 765.105.

^[12] Basta LL, Doty WD, & Geldart MDD. Medical Treatment of the Cardiac Patient Approaching the End-of-Life. In: Gerstenblith, Gary, ed. Contemporary Cardiology:  Cardiovascular Disease in the Elderly. Humana Press Inc., Totowa, NJ 2005:367.

^[13] Fillit, H. On Being a Doctor: Sara & George & Justice. Ann Intern Med 2004;140(9):759-760.

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