Nevada ruling may compound end-of-life care decisions

A recent Nevada Supreme Court ruling may open the door for physicians' medical judgment to be questioned in end-of-life care decisions and make their role in such scenarios more difficult, some experts said.

The high court for the first time addressed the scope of a state law designed to help dying patients spell out their wishes to refuse life-sustaining treatment and enable doctors to honor such requests. Nevada's Uniform Act on the Rights of the Terminally Ill states that, in the absence of a written directive from the patient or a designated family member, the attending doctor can make the decision to withhold or withdraw life support from a terminally ill patient with consent from a relative.

About 20 states have adopted similar laws modeled after draft legislation created by the Uniform Law Commission. The nonpartisan group -- formerly the National Conference of Commissioners on Uniform State Laws -- helped develop the legislation in order to streamline consent mechanisms for end-of-life care across state lines.

The Nevada court affirmed that the attending physician is shielded from civil and criminal liability when the doctor acts in good faith to comply with the law. But judges distinguished that a doctor's determination as to whether a patient is terminal can be challenged in court because the statute still requires doctors to follow reasonable medical standards in their decision-making.

In the case before the high court, Las Vegas emergency physician Jon Darden, MD, concluded that 72-year-old Avis Maxey was likely to die after taking 200 prescription pills in a suicide attempt in 2002, according to court documents. Her ex-husband, who found her unconscious at home, said she did not want to be kept alive. Dr. Darden administered only palliative care. Maxey died three hours later.

Her sons sued Dr. Darden for wrongful death in 2005, alleging he was negligent in classifying Maxey as terminal. Dr. Darden denied any wrongdoing.

The Supreme Court sent the case back to a trial court to decide the issue, among other claims. Trial is expected to begin early next year.

End-of-life care concerns

David J. Mortensen, Dr. Darden's attorney, said the decision defies the purpose of the statute and could result in more litigation over end-of-life care.

"The intent [of the act] was to give physicians a level of comfort and make these difficult end-of-life decisions go smoothly," he said. "If doctors are going to be second-guessing themselves as to whether a patient is truly terminal, or if there's a 100th percent of a chance someone can be salvaged, it may impede the entire process."

Mortensen said the ruling could force physicians to seek a second opinion unnecessarily in an emergency. Even then, doctors still could face liability.

"Anytime someone says a patient is terminal, it could be an issue for a jury now, and there's always going to be some expert out there to say someone was salvageable," he said.

The ruling also could have a "chilling effect" on physicians' willingness in emergency settings to adhere to patients' desires to refuse treatment -- such as in situations involving attempted suicide -- regardless of the patient's condition, said Elizabeth Beyer, chair of the health care ethics program at the Nevada Center for Ethics & Health Policy. The center, located at the University of Nevada, Reno, was not involved in the case.

Courts typically have ruled that the physician at the bedside is in the best position to make decisions about a patient's status, said Beyer, a lawyer and registered nurse.

"Although the medical profession is best qualified to determine whether or not a patient is in a terminal condition and likely to die, those choices -- like any medical decision -- [are] subject to review ... to provide a process when those medical decisions are questioned," she said.

Jennifer R. Lane, attorney for Maxey's sons and her estate, agreed.

She said the statute was meant to protect doctors from liability when they, in good faith, carry out a patient or surrogate's request to withhold life-sustaining treatment and a family dispute later arises. Doctors should not have to question whether a patient or family member's declaration was valid, or whether the patient was competent when he or she signed a directive, Lane said.

"But when it comes to the medical decisions, they have to comply with the standard of care," she said. "There has to be something to protect patients in case some harm occurs."