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

Mr. Elbaum refused to pay for any further treatment, and Grace Plaza sued to recover payments for services rendered to his wife after October 1987.97 Mr. Elbaum then sued Grace Plaza to remove Mrs. Elbaum's feeding tube.98 The trial court initially held that there was insufficient evidence that Mrs. Elbaum wanted the feeding tube removed,' but an appellate court reversed and ordered Grace Plaza either to transfer Mrs. Elbaum to a nursing home that would enforce her wishes or to enforce them itself." Following this decision, Mrs. Elbaum was discharged from Grace Plaza and died shortly thereafter.101

Grace Plaza's payment action continued after her death, and Mr. Elbaum argued that he rightfully refused to pay because the nursing home should have stopped the treatment as soon as he told them that his wife would not have wanted artificial nutrition and hydration. i He further argued that continuing to furnish the nutrition and hydration constituted a battery against his wife.'o3 The appellate division disagreed:

The rule which prevents physicians from recovering payment for medical services which are not desired should not be applied in a case where, because the patient is comatose, her desires cannot be known, but can only be deduced, with a greater or lesser degree of certainty, from evidence of her past conduct and past statements. 104

More specifically, the court held that:

[U]nder the law as it stood at the time this case arose, [Grace Plaza] committed no legal wrong, incurred no legal liability, and forfeited no legal right, when, in the absence of judicial guidance, it continued to provide life-saving medical treatment to a comatose patient over the objections of the patient's conservator. 11

Prior to reaching this holding, the court addressed the moral hazard argument:

It is asserted that, in light of our decision today, all health care providers in charge of competent patients will have an additional financial incentive to prolong the lives of such patients over the objections of the patients' families. This may be true, and the potential evil which we see is that some beleaguered families may, regrettably, be forced to litigation .... What is not noted is that, if Mr. Elbaum's conduct in this case were condoned, health care providers would have an additional financial incentive to obey, without question, the orders of those conservators who might prematurely despair of their conservatees' recovery, or the orders of those conservators whose judgment might be tainted by motives less altruistic than Mr. Elbaum's. The potential evil we see resulting from this, i.e., the possible death of one patient whose life might have been saved, is infinitely greater, in our view. 106

Judge Rosenblatt, in dissent, strongly disagreed with this statement. He stated that the court's ruling "allow[ed] a nursing home to profit financially, while ignoring a patient's wishes, as it imposes its own ethical standards upon her. "'07

III. Wrongful Living, Wrongful Life: Can Plaintiffs with Disabilities Recover Damages When They Argue That They Would Be Better Off Dead?