Better off dead than disabled?: Should courts recognize a "wrongful living" cause of action when doctors fail to honor patients' advance directives?

Washington and Lee Law Review, Winter 1997 by Adam A Milani

Adam A. Milani*

Introduction

In 1976, Americans celebrated the bicentennial of the Declaration of Independence, which proclaims that all people are endowed with "certain unalienable rights,"' including those of "Life, Liberty and the pursuit of Happiness. "2 That same year also marked the recognition in both case law and statutory law of a new right: the right to die.3 In the following two decades, almost every state has affirmed this right in its statutory law or case law,4 and the United States Supreme Court has found that competent persons have a "constitutionally protected liberty interest in refusing unwanted medical treatment."5 More recently, a federal appellate court held that recognition of the right to die necessarily includes a right to physician-assisted suicide.6

These cases and statutes have arisen because advances in medical technology have drastically changed the way physicians treat patients7 and how and where Americans die. In 1939, barely one-third (thirty-seven percent) of Americans died in hospitals or nursing homes.8 Less than five decades later, however, between eighty percent and eighty-five percent of Americans died in hospitals or nursing homes.9 Furthermore, seventy percent of these individuals did so after a decision to forgo life-sustaining treatment.10

Many of these people died after enduring treatments that were unheard of fifty years ago. Cardiopulmonary resuscitation (CPR) was not effectively developed until 1960 when it was introduced as an emergency means of restoring circulation in cardiac arrest victims." Soon, however, CPR became standard procedure in hospitals, and many hospitals established a requirement that it be performed in all cases except when a do-not-resuscitate order had been executed. 12

Iron lungs for polio patients were introduced in the 1950s, and respirators, or positive pressure ventilators, came into use in the 1960s. 13 These ventilators require either an endotracheal or tracheostomy tube. 14 Like CPR, intubation of patients in respiratory arrest became standard practice in hospitals unless the patient had previously executed a do-not-resuscitate order.

Widespread use of intravenous nutrition for patients that could neither eat nor tolerate gastrostomy tubes also began in the 1960s. Is Although not an emergency procedure giving rise to presumed consent, health care providers have often resisted removal of a feeding tube once it has been inserted, and patients and families have responded by suing to have their wishes honored. 16 These suits have sought equitable relief in the form of orders requiring health care providers to discontinue treatment and let patients die.

The widespread recognition of the right to die has also spawned another type of lawsuit: suits for damages alleging that patients who received unwanted life-sustaining treatment suffered a compensable injury when their right to die was violated. The majority of the suits seeking damages for the unauthorized provision of life-sustaining treatment have relied on traditional common-law torts, such as battery and infliction of emotional distress, or on a constitutional tort under 42 U.S.C. 1983.17 There has also been a call, however, for the recognition of a new tort: wrongful living.X8 Plaintiffs bringing wrongful living actions essentially claim that their diminished quality of life after or while receiving treatment makes their life not worth living, and thus, that they would be better off dead. 19 To date, few courts have ruled on the viability of such a cause of action.

Given the increasing use of living wills, durable powers of attorney, and other instruments memorializing patients' wishes to refuse treatment, however, the number of wrongful living cases is likely to increase dramatically. These cases will force courts to attempt to answer the question of whether a plaintiff's life is worth living. Their response may potentially have a profound impact on persons with disabilities that have historically been viewed as indeed having lives not worth living.

This Article argues that courts should reject a wrongful living tort because "life is not a compensable harm."20 In making this argument, this Article first examines the rise of case law and statutory law covering an individual's right to die.21 Part II then discusses the medical profession's consistent failure to honor patients' wishes to refuse life-sustaining treatment despite the existing law concerning the right to die.22

Part III of the Article reviews extant case law on wrongful living and the more abundant case law on "wrongful life" actions brought in the name of children with disabilities alleging that it would be better if they had not been born. Courts have been reluctant to recognize either action because of a conceptual unwillingness to say that "life, even with severe disabilities, constitutes an actionable injury"2' and because of the impossibility of calculating damages based on a comparison between life with a disability and no life at all.