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

The results of this study may be due in part to physician resistance to advance directives.83 A study of physicians in California and Vermonts84 identified three reasons for physician failure to honor patients' advance directives regarding the withholding of treatment: "(1) fear of liability; (2) the perception that directives interpose an unnecessary additional control over, and interfere with, the physicians' professional actions; and (3) the perception that directives implicitly question the physicians' judgment of the patients' best interest. "85

Another recent article reviewing trends in health care decisionmaking shows that physician ambivalence towards advance directives still exists: The evidence suggests that physicians generally still consider it their responsibility to make treatment decisions that they believe are in the patient's best interest and that patient preferences should be ignored if they are inconsistent with the physician's view of the patient's best interests. In other words, it appears that end-of-life decisions are frequently driven by the physician's values rather than the patient's values. 6

C. Financial Incentives to Treat?

It is not surprising then that a newspaper article on the SUPPORT study stated that the study "calls into question a central tenet of the 25-yearold right-to-die movement: that if patients express their wishes about endof-life care in advance through such documents as living wills, doctors will abide by them."' The article quoted Joanne Lynn, the director of the Center to Improve Care of the Dying at George Washington University Medical Center and a coleader of the SUPPORT study. Lynn stated that one of the problems with the current system is that "it does not hold itself accountable for badly handled deaths. `If I, as a doctor, do it badly, nothing comes down on me.... I get paid well. The family is left behind in grief and goes away. The patient's suffering counts for nothing."'"

The existence of financial incentives to continue treatment for a patient on life-support systems was addressed by both the majority and the dissent in Grace Plaza of Great Neck, Inc. v. Elbaum.1 Grace Plaza, a long-term care facility, admitted Jean Elbaum on September 19, 1986 following hospital treatment for a stroke.90 When Grace Plaza admitted Elbaum, she received nutrition through a gastrostomy tube and was in a persistent vegetative state.9' In October 1987, Elbaum's husband sent a letter to Grace Plaza stating that "it was his wife's wish that she be allowed to die naturally should she fall into an `irreversible vegetative state"'9 and instructed Grace Plaza to remove Mrs. Elbaum's feeding tube.93

Grace Plaza responded to Mr. Elbaum by noting the absence of a clear indication of Mrs. Elbaum's wishes regarding removal of her feeding tube.94 Grace Plaza also stated that "its own ethical standards would . . . prohibit it from withdrawing life-saving medical treatment from one of its patients"95 and encouraged Mr. Elbaum to transfer his wife to another nursing home if he wanted her feeding tube removed.96