Lawsuit showcases DNR liability twist for doctors

Medical and legal experts say the case raises issues about the standard of care with end-of-life directives.

By — Posted Feb. 5, 2007

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Physicians cannot always predict when it is time to act on a patient's advance wishes to forgo life-prolonging care, but a Florida lawsuit may foretell legal woes for doctors who don't anticipate the situation.

A family there is suing their grandmother's doctor for allegedly ignoring her directive not to be revived. The physician sent the 92-year-old to the hospital when hospice staff found her unresponsive in October 1995.

Internist Jaimy Bensimon, MD, then medical director at Joseph L. Morse Geriatric Center, was away from the hospice and told staff to call 911, the lawsuit states. Because there was no "do not resuscitate" order in Madeline Neumann's chart, paramedics performed CPR and intubated her. They took Neumann to a hospital where she was put on life-support for three days. She died four days after being taken off support.

Although these types of lawsuits are not new, the Florida case is believed to be among very few to proceed to trial, as most settle beforehand. A Feb. 9 hearing is scheduled for the judge to set a trial date. Plaintiff's attorneys said they want to hold doctors accountable for violating dying patients' rights.

Courts generally have sided with physicians who err on the side of saving lives. The Terri Schiavo case put the national spotlight on right-to-die directives two years ago. Now, legal and medical experts say the Florida lawsuit highlights factors that increasingly could land doctors in court. Advance directives are not always clear on emergency response, and they are not always translated into physicians' orders, experts say.

Traditionally, saving someone's life was not viewed as the wrong decision, but that standard could be in flux, said Lois L. Shepherd, a bioethics and health law professor at Florida State University. "Maybe we know [what the patient wants] once we look through the documents, but it is that window when a patient has gone into some distress and action needs to be taken quickly."

Most states, including Florida, have laws that recognize patients' rights to refuse life-sustaining treatment through advance directives, such as living wills or durable powers of attorney. But the statutes do not let patients sue to enforce them.

That is why Neumann's family accuses Dr. Bensimon of negligence for allegedly disregarding her living will and failing to put a DNR order in her chart. The lawsuit also has a battery claim against the doctor for ordering the 911 call that led to intubation.

Dr. Bensimon denies any negligence or other wrongdoing. Although aware of the living will, he wanted to have Neumann evaluated and stabilized before withholding treatment, said his attorney, James J. Nosich.

"For him to make a decision whether [Neumann] should be left to die in a nursing home or not needs a doctor's assessment," he said.

Neumann's directive also indicated she wanted to receive antibiotics, and Dr. Bensimon had been treating the Alzheimer's patient for seizures for nearly three years, Nosich added.

Because of an ongoing physician relationship, Dr. Bensimon should have known that Neumann's death was imminent and should have put a DNR order in her chart to enforce her wishes, said Marnie R. Poncy, a lawyer for Neumann's family.

"This wasn't a case where he didn't know what was going on with his patient," she said. Neumann's granddaughter also was listed as a surrogate on the advance directive, and there was no dispute about Madeline Neumann's decision, Poncy said.

"The law clearly says that what the patient wants prevails," she said.

Shephard said that if there is a huge delay or gross disregard for a living will, doctors could be held liable.

Determining the doctor's role

Rarely do physicians act with malice, said palliative care specialist Maria J. Silveira, MD, an assistant professor at the University of Michigan Medical School in Ann Arbor. But a gap exists between what patients express in an advance directive and how doctors put them into effect, she said.

"A living will is only half of an advance directive. It's a statement of patients' preferences, but it's not a doctor's orders," she said. Without the latter, medical personnel cannot withhold life-saving treatment.

In a 2001 study that Dr. Silveira conducted with the Washington State Dept. of Health, 60% of the nearly 500 physicians surveyed did not know that the state required a physician-authored DNR order for emergency personnel to forgo CPR; 79% did not know that patients' advance directives apply only in certain settings.

Doctors also say advance directives often leave room for doubt, and it is difficult to predict whether intervention will improve the patient's condition. "When in doubt, doctors can err on the side of being conservative, and then withdraw promptly once they realize what's going on," Dr. Silveira said.

Communication around those end-of-life decisions is key to protecting doctors and patients, experts say.

Doctors must help their patients understand exactly what it is they want, and what an advance directive permits them to do, said John G. Carney, Center for Practical Bioethics vice president of aging and end of life.

"It's also helping patients understand the different types of orders. A DNR is about resuscitation, not discontinuing treatment," he said.

Dr. Silveira recommends documenting conversations, following up with orders and including a family member or surrogate should the patient become incompetent.

American Medical Association policy supports advance directives as the best way for patients to ensure end-of-life wishes are respected. The AMA states it is physicians' responsibility to provide medical information to patients to help them plan those decisions.

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Reducing risk

Here is what medical and legal experts suggest when doctors discuss end-of-life advance directives with patients:

  • Know state laws on patient rights and advance directives.
  • Have an in-depth conversation with the patient about his or her current health status, what the patient is most likely to encounter and what the patient would want done under those circumstances.
  • Document the conversation in the patient's chart in case he or she doesn't sign a living will or advance directive.
  • Write a "do not" order to give the advance directive force should a medical emergency arise.
  • Involve a family member or other surrogate in the end-of-life plan to avoid disputes in carrying out the patient's wishes.

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External links

American Medical Association on advance care directives (link)

National Hospice and Palliative Care Organization's Caring Connections program for state advance directive documents and instructions (link)

Physician Orders for Life-Sustaining Treatment Paradigm (link)

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