Following the Patient’s Wishes
If a competent patient refuses care, either directly or through a living will or surrogate, the physician is bound to respect those wishes. This does not apply to euthanasia or living wills that violate state law. Until recently, however, physicians have been able to treat critical care patients against their will because the courts were reluctant to punish a physician for delaying a patient’s death. As the courts become more sophisticated about these cases, they are less willing to tolerate these intrusions on patient autonomy. One court has already assessed damages against a hospital that refused to terminate life support for a patient who was brain dead. [ McVey v. Englewood Hosp. Ass’n, 216 N.J. Super. 502, 524 A.2d 450 (N.J. Super. A.D. 1987).] Courts are also likely to assess attorney’s fees and damages against physicians who ignore clearly effective living wills in order to avoid terminating life support.
Physicians are already seeing patients and families who reject living wills and demand life support. Patients do not have the right to unnecessary medical care, including intensive care that cannot affect the outcome of their condition. If the patient demands all available care, the physician must be careful to document the therapeutic rationale behind decisions to deny or terminate life support for these patients. In all cases, it is easier not to start a therapy than to terminate it. This is a very slippery slope, however, as hospitals and third- party payers increase the pressure on physicians and families to refuse or terminate life support.
At least one hospital openly challenged the right of patients and their families to demand the application and continuation of life support. This hospital sought a court order to terminate life support for a patient whose clearly expressed wishes, and those of her husband, were to continue the life support. The court refused the order, finding no compelling reason to overrule the patient’s decision. Most hospitals apply less open but nonetheless real pressure on families and physicians. Physicians should be careful that it is medical considerations and not financial pressures that underlie the decision to refuse life support to patients. Many physicians correctly worry about the denial of resources to other patients with a better prognosis. This does not make physicians who are determining the care for individual patients the proper agents to refuse care to benefit society. Although MCOs stress cost-effective care, this is under the constraint that the patient must receive the same quality care. Only the government can change the legal standard and allow classes of patients to be denied care to benefit society as a whole.