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6-17-2008

Compliance With Advance Directives: Wrongful Living and Tort Law Incentives

Holly Fernandez Lynch Hogan & Hartson, LLP

Michele Mathes Center for Advocacy for the Rights and Interests of the Elderly

Nadia N. Sawicki University of Pennsylvania

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Repository Citation Lynch, Holly Fernandez; Mathes, Michele; and Sawicki, Nadia N., "Compliance With Advance Directives: Wrongful Living and Tort Law Incentives" (2008). Faculty Scholarship at Penn Law. 221. https://scholarship.law.upenn.edu/faculty_scholarship/221

This Article is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship at Penn Law by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact [email protected]. Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 O:10.1080/01947640802080298 DOI: online 1521-057X / print 0194-7648 euelf-utiigcr,ee hnptet olne aetecpct to capacity the have longer no patients when to even decisions care, including life-sustaining treatment, refuse regarding decisions patients’ to accorded be Copyright 29:133–178 Medicine, Legal of Journal The 90,hwvr htptetatnm ea ob setda central a as asserted the be until not to ethics. was began liberty medical It autonomy of of society. patient principle element American that of essential however, hallmark an 1960s, a as been autonomy historically personal has of recognition The INTRODUCTION M.Be. J.D., Sawicki, N. Nadia J.D. Mathes, Michele M.Be. J.D., Lynch, Fernandez Holly C W rejected, †† † 2 1 * ihl ahsi ietro dcto n eerha h etrfrAvcc o h ihsand Rights the for Advocacy for Center the at Research and Education of Director is Mathes Michele &J AND CIPLES OF TION generally See H See in Press MIT the by of published hfl[email protected]. those be at will Lynch solely care Ms. are health Contact in article 2008. conscience this of of October in conflicts expressed on book Law views Lynch’s Health was Ms. All for authors. article Center Bioethics. Petrie-Flom This and School’s D.C. Law Biotechnology, Washington, Harvard Policy, LLP, at fellow and Hartson, academic & an Hogan was she at while associate written an is Lynch Fernandez Holly h tia suso ogtr aeadcnitrslto.CnatM.Mte [email protected]. at Mathes Ms. Contact resolution. conflict and on care focuses term work long professional Her of Medicine. issues of ethical College the Department University at the Drexel in Program Instructor at Policy as Programs Social and Research Professional and Social Law of and Work the Social in of Lecturer School Graduate a Mawr University as Bryn the serves the and Mathes Pennsylvania Ms. of University School, the Law of Pennsylvania graduate of A Philadelphia. in Elderly the of Interests rsn iiay n ulchat otxs h eual xeineda oat oflcs Contact conflicts. loyalty dual experience regularly [email protected]. who at Sawicki contexts, Ms. health public and military, prison, research current Sawicki’s and Ms. University. School Brown Law of e Pennsylvania graduate of a University is and the respectively, at Medicine, Bioethics of School in degree Master’s and J.D. her completed ai .Swcii h ereSasodFlo tteUiest fPnslai a col She School. Law Pennsylvania of University the at Fellow Sharswood George the is Sawicki N. Nadia R MLAC WITH OMPLIANCE poe h rfsinl ea,adehclcntanso hscas nldn hs rciigi the in practicing those including physicians, on constraints ethical and legal, professional, the xplores EALTH ONGFUL AMES ai .Rothman, J. David H C 2 .C F. UMAN C ARE n oenehcladlglnrsgnrlyrqieta deference that require generally norms legal and ethical modern and G 08Tyo rni ru,LLC Group, Francis & Taylor 2008 IEIE O THE FOR UIDELINES HILDRESS A D S NALYSIS PRMN OF EPARTMENT L BET OF UBJECTS VN AND IVING ,P h rgn n osqecso ain uooy 5Ya Retrospective 25-Year A Autonomy: Patient of Consequences and Origins The 5 20)(otiigdtie icsino h ain uooymovement). autonomy patient the of discussion detailed (containing (2001) 255 ICPE OF RINCIPLES † B OEIA AND IOMEDICAL H P EALTH ROTECT 1 T B ,E T IOMEDICAL O OF ION †† ORT dy hsca aenls a enwidely been has paternalism physician oday, DUCATION A B H EHAVIORAL DV L 133 UMAN * , E AW AND THICS ANCE S BET OF UBJECTS W I R 5he.2001). ed. (5th NCENTIVES ELFARE ESEARCH :N D R ,T AT ESEARCH HE IONAL IRECTIVES B ELMONT C 17) T (1979); MISO O THE FOR OMMISSION R EPORT OM :E .B L. THICAL EAUCHAMP P RO P TEC RIN ,9 - - Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 nmn icmtne,i ilofrsgicn rtcint hs h have who those to clear. protection wishes significant their offer wishes made will stated patient’s it a circumstances, of interpretation many for in need the directives advance eliminate of or resolve utilization patients not low by to will leading living issues wrongful outstanding the for of recovery many allowing Although area. this commentators and in courts the perplexed difficult have that the or damages of to in relating some disregarded questions on battery guidance intentionally of offers or and variant directives Finally, recklessly advance living misinterpreted followed. have wrongful been a physicians of not where recognition have to situations for directive date argues refusals advance to the III an where reluctance Section in cases in courts’ contained living” examines care “wrongful for II of action Section of cause realized. hopes a those recognize be how describes to and yet care end-of-life have about choices patient reify to to right life. moral of and end legal the a one’s at takes enforcing not care doing, fully refuse so is more in toward life and step continued reasoning, important that that an rejects grounds article the This harm. on compensable remedies legal adequate denied f eeoe samasb hc ain’ uooyrgrigmdclcare medical regarding incapacity. autonomy patient’s such a survive which might by means a as developed omnct hs eiin oterphysicians. their to decisions those communicate 134 httoewse ilb irgre rinrdadta ain whose patient a possibility that distinct and a ignored is k or there disregarded so, be e done will have wishes they those that when even clear, makes a enn ipets.Frt thsbe ifiutt esaeptet to patients persuade to difficult been known. wishes has their it making by First, incapacity for task. prepare simple no been has c htptet nigtesle nti iuto aeruieybeen routinely have situation this in themselves finding patients that act pesdcoc a orfs iessann ramn ilnnteesbe nonetheless will treatment life-sustaining refuse to was choice xpressed p lv gis i rhrwill. her or his against alive ept 4 3 6 5 e infra explicitly.See stated is the indicating it to reference infra intended, physician a See is a Where decision-maker to treatments. surrogate statements life-sustaining a oral of of patient’s directive withholding appointment a advance or provision and term the the wills the to for living use and wishes written physician, we specific to the article, refer with this communicate to In to narrowly (proxy). unable more decision-maker if life-sustaining surrogate want specific a not which of does indicates and appointment wants individual she an or which he in treatments and instruments), incompetent). clear currently (instruction require is wills may patient living states the when that refuse but so care, to Aw medical wish patient’s refuse the to of right evidence convincing the have patients incompetent and See eto esotteiiilhpsfravnedrcie sinstruments as directives advance for hopes initial the out sets I Section notntl,hwvr rsrigptetatnm tteedo life of end the at autonomy patient preserving however, Unfortunately, rznv ietr isuiDpto elh 9 ..21(90 hligta ohcompetent both that (holding (1990) 261 U.S. 497 Health, of Dep’t Missouri Director, v. Cruzan r ntriooyi nodr h em“dac ietv”i eeal sdt ee ohto both refer to used generally is directive” “advance term The order. in is terminology on ord oe2 n copnigtext. accompanying and 25 note § 1. 4 6 hspolmi nyeaebtdb the by exacerbated only is problem This 3 dac ietvswere directives Advance 5 eod sti article this as Second, L NHE AL ET YNCH . Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 en feecsn popcieautonomy,” “prospective exercising of means htsrie etlincapacity, oneself for mental decisions survives medical making that in recogni- interest liberty Court’s constitutional Supreme a of States tion United the support—including judicial legislative and significant Notwithstanding end- envisioned. regarding originally choice than patient care effectuating of-life in successful less be to proved tably lotfu eae ago. decades four almost they interventions of intensity and kind the control w could patients which by av rnhn ea rcs eoeuwne ramn ol ewthl or withheld be heart- would a treatment endure unwanted to having withdrawn. before families process their public and legal patients raised wrenching of treatments prospect life-sustaining the of at continuation alarm or challeng- cases provision court reported the widely of ing number a 1976, un- in seemed Court it Supreme sey where situations in technology such of w use the tenuous and more ever life sustain on to holds technology medical of ability the over concerned ADVANCE OF PROMISE UNFULFILLED THE BACKGROUND: I. C iiglglrcgiint dac directives advance to recognition legal giving eiadfnst nomptet fterrgtt aealvn iland/or will living a make to right decision-maker, their surrogate and a of appoint Medicare patients federal inform receiving to funds providers Medicaid care health requiring (PSDA) Act DIRECTIVES 12 11 10 9 8 7 MLAC WITH OMPLIANCE udrciei hycudn ogrcmuiaeterwse ophysicians. to wishes their communicate longer no could they if receive ould ne ruwratd einn with Beginning unwarranted. or anted iigsmlrstain,icesnl aldfrtedvlpeto means a of development the for called increasingly situations, similar oiding hoeAPooa o eiltv n rcia Alternatives Practical and Legislative for Proposal Choose—A See 101-508, No. L. Pub. Cruzan (2001). B S F Cantor, L. Norman Kutner, Louis patient the what of analysis judgment substituted and a incompetent, either w on becomes based patient withdrawn herself or that withheld care when be disappear can medical care not that life-sustaining does even care refuse refuse to can right patient’s patient guardian); competent a a through that or levels, himself federal or and state the both at re In See 9(06 dsrbn h nfr ihso h emnlyIlAtadcrepnigsaestatutes state corresponding and making). Act decision Ill surrogate Terminally and the directives, advance of wills, Rights living Uniform recognizing the (describing (2006) 49 tt a ae drsigtergto nicpcttdpro orfs iessann treatments). life-sustaining refuse to person incapacitated an of right the addressing cases law state ate ERIOUSLY EDFELLOWS udhv atd rbrigta,abs neetanalysis); interest best a that, barring or wanted, have ould ate .Hce,Note, Hickey, B. Matthew h rtlglltrtr doaigteceto flvn il appeared wills living of creation the advocating literature legal first The nte16sad17s h ulcbgnt rwporsieymore progressively grow to began public the 1970s, and 1960s the In ,8J. , 9 ..261. U.S. 497 una,35A2 4 NJ 96 hlig ae ntecntttoa ih fpiayexisting privacy of right constitutional the on based (holding, 1976) (N.J. 647 A.2d 355 Quinlan, C :P ONTEMP :H 7 RO eperaie htti ol apnt hmto n nhpsof hopes in and too, them to happen could this that realized People u rcs fEtaai:TeLvn il Proposal A Will, Living The Euthanasia: of Process Due SPECTIVE OW .H A M rsetv uooy nteLmt fSaigOesPscmeec Medical Postcompetence One’s Shaping of Limits the On Autonomy: Prospective EALTH DV EDICAL oie at codified A ANCE TNM AND UTONOMY L .&P J kaoaAvneDrcieAt eyn hiet hs h Cannot Who Those to Choice Denying Act: Directive Advance Oklahoma URISPRUDENCE 8 D lhuhteedcmnswr ntal alda a as hailed initially were documents these Although IRECTIVES 2U.S.C. 42 OL e loI re In also see ’ Y 3(1992); 13 D 10 ECISIONS § asg ftePtetSelf-Determination Patient the of passage H 1395cc. 11 AS n h ncmn flw neeystate every in laws of enactment the and ory 8 .d10 NJ 95 hligta the that (holding 1985) (N.J. 1209 A.2d 486 Conroy, e also see I N NFLUENCED nr Quinlan re In A THE EAR R 9 OBERT E dac ietvshv regret- have directives advance DOF ND M 12 Cruzan ,59O EDICAL rsac a hw that shown has —research .O S. L , IFE KLA LICK , eie yteNwJer- New the by decided 9 ..a 7-8(reviewing 271-78 at U.S. 497 E ,44I 20) B (2001); HC AND THICS .L.R ,T AKING ND EV . ..59(1969). 539 L.J. . EN A 4,435,nn.37- 453-54, 449, M DVAN .R A. EDICAL CE ICH D ,S IRECTIVES P RACTICE TRANGE 135 Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 fTetet ooti etrudrtnigo h xeineo dying of experience the of understanding better hospitals. American a Risks and in obtain Outcomes to for Preferences Treatment, and of Prognosis Understand to Study even the choice patient known. with choice inconsistent a often made is has life patient the of when end the at care medical 136 ult fcr en rvddt yn optlptet.I subsequent a In patients. hospital dying and to provided nature being the care understanding of for quality information critical provided SUPPORT care. and future treatments, regarding life-extending wishes of treatment use patients’ the documented also concerning team care health patients the among and communication promote spe- to assigned Meanwhile, pa- were directives. nurses advance their trained of regarding cially presence information the and as CPR well on views as tients’ impaired, CPR, functionally surviving severely of being probability of and likelihood months, six probability patients’ to survival specific their of describing reports written given Physi- were patients. cians and improve physicians among to information of intended exchange and intervention quality the multi-pronged a evaluated and plemented, DR re n,i o hni a nee noteptetscat swell cardiopulmonary as want chart, not patient’s did the patient into (CPR). the resuscitation that entered knew was physician Resuscitate it the Not when whether Do as so, written if a and, had order in patient (DNR) experience the patient whether of including quality the context, mark this objectively most that care of aspects afo hscasi h td h eotdrciigwitninformation surrogates. written their their with receiving or information reported patients this discussed who actually study preferences patients’ the regarding in than physicians fewer DNR Moreover, of of preferences. timing patient half of the awareness in physician change in significant interven- or orders no researched was carefully there the implemented, after was however, tion Even tabulated, were startling. study were SUPPORT conclusions the of the phase second this of results eewitnwti w aso et.Tit-n ecn falPaeI Phase of all half than of preference. fewer this percent slightly understood but accurately Thirty-one CPR, physicians avoid death. their orders to of preference these a days of expressed 46% two patients orders, within DNR written had hospitalized were while died who patients 17 16 15 14 13 Id Id Id Nelson, Lindemann James & Moskowitz H. Ellen Investigators, Principal SUPPORT The iaie ains h td oUdrtn rgoe n rfrne o ucmsadRssof Risks and Outcomes for Preferences and Prognoses Understand to Tr Study The Patients: pitalized upeet 3(1995). S3 Supplement) . .a .atS4. amn (SUPPORT) eatment n18,rsacesudrokantoa rjc nw sSUPPORT, as known project national a undertook researchers 1989, In lhuhi aldt civ infiatcagsi n-flf care, end-of-life in changes significant achieve to failed it Although im- developed, investigators SUPPORT the results, these to response In t S4-S5. , 14 7 ....19 (1995). 1591 J.A.M.A. 274 h eerhr on ht vntog 9 fPaeI Phase of 79% though even that, found researchers The 13 nPaeIo h td,rsacesietfidfive identified researchers study, the of I Phase In 17 A otoldTilt mrv ucmsfrSrosyIlHos- Ill Seriously for Outcomes Improve to Trial Controlled h etLi Plans Laid Best The ,25H 15 ASTINGS C TR 16 L NHE AL ET YNCH .R hnthe When EP . (Special . Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 nossetwt hs ntutosa uha afo h time. the of half as remains much care as present, instructions are those instructions with the specific inconsistent of when health even passage to and unavailable after providers, still decades care are often two directives advance nearly that show and PSDA—data published were studies PORT il,41hddrbepwr fatre,ad11hdboth. had 151 living and attorney, had of who 358 powers these, durable patients Of had 618 directives. 411 advance wills, identified written investigators formal data, having SUPPORT reported on based study C sfra ecudtl,avnedrcie eeirlvn odcso making” decision to irrelevant providers. were medical directives advance by tell, simply, intensity could “[q]uite average we that as concluded bill, far investigators hospital as The stay. the of by the length or measured or therapy, a as of resuscitation resources have concerning hospital to orders of physician failed use either those directives on and resuscitation—advance effect wills forgo significant living to had who preferred population—those who the of subsets important n ubn a poigvesrgrigteknso iespot fany, if support, life of kinds the regarding views opposing had husband and lac ihptetwse tteedo ie 96suyo h impact ulti- the patients of treatments the study dismal impact received. 1996 same not mately did the a preferences reached life, these treatment that of life-sustaining conclusion end on the preferences at patient of wishes patient with pliance h eetcs fTeeaSchiavo. Theresa of case a surrounding recent of spectacle the lack public hopes, the than during reason plain its other made no was for This place alternative. if better them, to in confidence, continues its not public perhaps though the expectations, proponents’ fulfilled ujc favnedrcie,adterlvn ouetwsatal filed patients. two actually the only was of of document records mention relevant medical any the the included and in patients directives, these advance of of 36% subject only of records medical 23 22 21 20 19 18 MLAC WITH OMPLIANCE 2007). Tr hr a oedsgemn bu e odto hl h a tl lv,btteatpylf oroom no left autopsy the but alive, still was doubt. she while for condition her about disagreement some was There al., et Collins G. Lauren al., et Danis Marion Id Id Patients? Ill Seriously for al., Resources et Teno M. Joan H Directives ietvs hscasmyntb wr fte,adte rqetyhv iteipc nclinical on impact little have frequently they and them, of aware be decisions.”). not may physicians directives, 6 2005, 16, 07;Ab Goodnough, Abby 2007); 2005, OSP .at27. . amn n optlCost Hospital and eatment ept ayitrmefrst mrv ain uooyadcom- and autonomy patient improve to efforts interim many Despite s civ xse napritn eeaiestate, vegetative persistent a in existed Schiavo Ms. practice in not have directives advance that fact the despite However, .P vial at available ALLIAT , vial at available See 6 A 164 .C o .Thogmartin, R. Jon ARE RCH A tp/nrhonrgzteogdcmnsatpyeotpf(atacse o.6, Nov. accessed (last http://northcountrygazette.org/documents/autopsyreport.pdf 21 7,39(2006); 379 378, DV oFra dac ietvsAfc euctto eiin n h s of Use the and Decisions Resuscitation Affect Directives Advance Formal Do .I AP notntl,tdymr hnadcd fe h SUP- the after decade a than today—more Unfortunately, w.yie.o/050/6ntoa/6civ.tl(atacse o.6, Nov. accessed (last www.nytimes.com/2005/06/16/national/16schiavo.html ANCE NT h tt fAvneCr lnig n eaeAtrSUPPORT After Decade One Planning: Care Advance of State The r .M 20 civ uos asBan ihrd a Untreatable Was Withered, Brain, Says Autopsy Schiavo setv td fteIpc fPtetPeeecso Life-Sustaining on Preferences Patient of Impact the of Study ospective ,24C ED D . IRECTIVES 51 52(04 “vnwe ainspoiewitnadvance written provide patients when (“Even (2004) 1502 1501, eia xmnrsRpr:Atpyo hrs Schiavo Theresa of Autopsy Report: Examiner’s Medical RIT ,5J.C e also see .C ARE LIN M enr o&Rbr Steinbrook, Robert & Lo Bernard .E ED THICS . 81 85(1996). 1815 1811, 3 5(1994). 25 23, 19 utemr,ee mn two among even Furthermore, 23 eucttn Advance Resuscitating n e parents her and 18 , oee,the However, 22 ..T N.Y. ,23A IMES , ue13, June , 137 June M .J. Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 ie n,rltdy o ainst opeethem. direc- complete advance to to adherence patients other their for and in relatedly, physicians scrupulous and, for be tives incentives to effective providers any, care if health few, are there namely, eiltv,adjdca rnhso oeneta ohtesaeadfederal and state the involved. executive, both become the at had and government levels audience, of national branches family a judicial her before and die, itself legislative, to with allowed war was the in Schiavo By engaged Ms. circumstances. had and resolved the was under matter herself the for time chosen have would Schiavo Ms. 138 owa aycmettr osdrt ete“alr ftelvn will” living the of “failure contributed the arguably be has to consider remedies commentators such many of what instructions to lack the The with provided. comply have to failures patients physicians’ for remedies ad- effective of or status legal the endorsing and creating v clear. in the legislatures is wishes despite and their and courts life of support, make of role public to strong end patients despite encourage the however, Remarkably, to at known. way autonomy under patient are efforts protect Numerous to need the directives, ie n ponmnso urgt eiinmkr aehsoial been historically have decision-makers surrogate low, of appointments and tives 0,0 onod rmisWbst eadn dac directives. advance regarding over site received the Web NHPCO in its Moreover, the from families. downloads death, 200,000 own Schiavo’s their Ms. in following in likely period struggle directives, two-week similar across advance a people avoiding state-specific from of of e-mails hopes copies 2,000 requesting than country more processed the than and more calls fielded phone (NHPCO) 900 Organization Care Palliative and Hospice tional soitdwt o hs ttmnso ain ihsogtt eenforced. be to ought wishes patient of statements problems these as-yet-unresolved how the with of associated exploration further invites however, case, e 28 27 26 25 24 pne alfrtecmlto favnedrcie olwn h Schiavo the following directives advance of completion the for call xpanded nedrcie,nihrjde o amkr aeytfruae coherent formulated yet have lawmakers nor judges neither directives, ance A T tp/acienwmxcmacie/rils20///268stl(atacse o.6 2007). 6, Nov. accessed (last http://archive.newsmax.com/archives/articles/2006/1/5/125608.shtml 3J H J. 23 McClellan, B. Mark & Kessler P. Daniel dur- e.g. See, directives advance of value the of slightly discussion Spotswood, Wires,Stephen only broad pub- NewsMax.com still the and the years. notwithstanding 1990), case 15 in directives, in intervening Schiavo increase advance completed the 12% significant the had ing a from to population showing (up the reaction Although of instructions lic quarter will. written a living than preparing a more people had Americans of of percentage 29% that found A Fo 2007). 2006, R C m oMv On Move to ime OMMENT EP NNALS 25 ra olcnutdb h e eerhCne ewe oebr9adNvme 7 2005 27, November and 9 November between Center Research Pew the by conducted poll .3 hs lhuhmn ainsufruaeysilfi odatadvance draft to fail still unfortunately patients many although Thus, nasnl a uigtehih fteShaopescvrg h Na- the coverage press Schiavo the of height the during day single a in n 0 at nlsso h ayise asdb hscs,see case, this by raised issues many the of analysis EALTH , I 20) er .Perkins, S. Henry (2004); NTERN neaFgri alE Schneider, E. Carl & Fagerlin Angela tp/wwumdcn.o/ril.f?rilI=01iseD8 ls cesdNv 6, Nov. accessed (last http://www.usmedicine.com/article.cfm?articleID=1091&issueID=89 . 8 (2005). 383 E CON .M , ED . 4 A 141 1 (2004). 111 .5 ogesGape ihIse ruh u yShaoCase Schiavo by Out Brought Issues with Grapples Congress 1 NNALS 20) o&Steinbrook, & Lo (2007); I NTERN otoln et:TeFlePoieo dac Directives Advance of Promise False The Death: Controlling 24 .M lhuhcmlto ae o dac direc- advance for rates completion Although dac ietvsadMdclTeteta h n fLife of End the at Treatment Medical and Directives Advance ED . 5 (2004). 159 nuh h alr fteLvn Will Living the of Failure The Enough: supra P l:Mr mrcn aeLvn il,at Wills, Living Have Americans More oll: oe2;Ja .Teno, M. Joan 22; note h civ ae Symposium A Case: Schiavo The 28 h eeegzdand re-energized The dac Directives: Advance ,34H , ..M U.S. L NHE AL ET YNCH 26 ASTINGS ,22C ED ,July ., 27 , ONST C 147 — TR . , . . Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 cltetet upiigy orshv o rae hs ruet n more any arguments these med- f treated unwanted not for have paid courts fees surprisingly, the treatment; recovering ical of hopes breach in proffered have arguments families contract some of been, generally have claims such cessful ae a oetolt,tecretlglfaeokofr itespotfor support little offers framework legal current many the recovery. in late, that too relief come injunctive may of cases outside choices. that, autonomous find their usually of violations they the Unfortunately, such to for turn recourse may seek families to and patients system legal results, the physicians’ by by outraged Confused contrary. often the and to actions instructions clear be to consider what they despite imposed are treatments life-sustaining or life-saving when mayed LAW EXISTING BY OFFERED REMEDIES INADEQUATE II. C e ersnaie a rn ii cinfrdmgsudravreyof variety a under or damages his for or action recovery. patient civil of the a theories bring treatment, may unwanted representatives provided her already has and rective Directives Advance of Violation for Recovery of Theories A. useFutet mnmn ii ihscam o ilto fterliberty their of violation for claims rights civil Amendment Fourteenth pursue eurseiec f“xrm rotaeu conduct.” outrageous which or actions, such “extreme for of proof of evidence burden requires high the given sufficient dismissal facts allege withstand to to able been have few although distress, emotional of tion malpractice, exist. medical of approaches tort alternative negligent although the or battery medical of tort intentional 32 31 30 29 av MLAC WITH OMPLIANCE e,e.g. See, e.g. See, P U. Fo Fo imsa fa netoa nito feoinldsrs li asdb h uvvr fadeceased that a demonstrate of not “outrageous”). could survivors plaintiffs was the that grounds conduct by the defendants’ on raised wishes, claim his against distress resuscitated emotional was who of patient infliction intentional an of dismissal Gasner, Rose Treatment Sustaining Rodriguez, rigt ilteptetwe hyrqetdrmvlo iesupport). life of of mother removal her requested they and when plaintiff patient accused the publicly kill physicians to defendant the trying plaintiff, the where that claim distress alleged emotional daughter, of patient’s infliction intentional of dismissal court’s trial (reversing oteptetuo hsca’ res ept h atta h ain’ aiyadconservator and family patient). the patient’s of the battery alleged that with connection fact in the incurred expenses despite medical orders, physician’s provided a it services objected); upon life-sustaining for fees patient collect to the right its to forfeit not did home nursing a that (holding orably. r ra rtclyilptet n hi aiisaefeunl hce n dis- and shocked frequently are families their and patients ill Critically hnamdclpoie al ocml ihaptetsavnedi- advance patient’s a with comply to fails provider medical a When Fo ute icsino h aiu hoiso eoeyaalbeudrsc icmtne,seM. see circumstances, such under available recovery of theories various the of discussion further UB umr fcssi hc eiin o nucierle aebe ucsfl e elnF. Kellen see successful, been have relief injunctive for petitions which in cases of summary .L.R re , , 29 rc lz fGetNc,Ic .Ebu,13AD2 0(..Sp t p.Dv 1992) Div. App. Ct. Sup. (N.Y. 10 A.D.2d 183 Elbaum, v. Inc. Neck, Great of Plaza Grace atigv lnaeAvnitMdclCne,14Cl p.3 6 18)(affirming (1986) 961 3d App. Cal. 194 Center, Medical Adventist Glendale v. Bartling 32 Gr ape oepanif aesuh aae o netoa inflic- intentional for damages sought have plaintiffs some xample, un elhCr rvdr o aigLvs iblt o rvdn natdLife- Unwanted Providing for Liability Lives: Saving for Providers Care Health Suing EV ial,we tt cosaeagal novd litfsmay plaintiffs involved, arguably are actors state when Finally, agg F . nnilPnlisfrFiigt oo ain ihst eueTreatment Refuse to Wishes Patient Honor to Failing for Penalties inancial 9 (1992). 499 , 9 ..da 26(drsigpanifscamudrteFml xes c for Act Expense Family the under claim plaintiff’s (addressing 1286 at N.E.2d 696 A DV ,20J.L ANCE 30 h otcmo prahsaebsdete nthe on either based are approaches common most The EG D .M IRECTIVES ED .1 ,6 u see But .8(1999). n.28 rg .Clnr,66NE2 22(l.Ap 1998) App. (Ill. 1282 N.E.2d 696 Calandra, v. Gragg 31 ie o unsuc- how Given ,11S T .L 139 OUIS Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 motn ntemdclcnet o fi eeohrie aenls could paternalism otherwise, autonomy. were patient over it reign if easily for still context, medical the in important neddtevr c htwsntcnetdt;tu,bteyi ohn more nothing touching. is unconsented actor battery of thus, the tort to; whether intentional consented to the not than was instead that speaks act hos- but very personal injury, the any physical intended implicate any not require or does tility intent of requirement the Importantly, in liable is he which for damages.” assault, an oper- commits an consent patient’s performs his who without surgeon ation “[a] that explained Cardozo Benjamin Justice Battery and Assault 1. the for nexus dismissal. government withstand sufficient a to found action has claim federal a no however, such date, addressing To court treatment. medical unwanted refusing in interest 140 eas,bnfi rnt ocnetwsgranted. was battery, consent for no not, liable or be benefit because, will wishes patient’s a ev against treatment initiates who oee,tig aentbe htes,a ewl see. will we as easy, physical that practice, been of in not cases; absence have these the in things however, withheld in explicitly directive been even advance has successful, consent whose because be patient harm, a should by disregarded brought been action has battery a that appears it o n uhhrflo fesv otc eut,ete ietyo indirectly. or per- directly either another results, with contact offensive contact or offensive harmful such or and harmful son cause to intending context. acts medical person the to battery and assault of theories tort traditional of 39 38 37 36 35 34 33 ni h ramn liaeysvsteptetslf rcrshscondition, his cures or life patient’s the saves ultimately treatment the if en nildt opnaoydmgsfrtesfeig niiihdb esno h hsclbenefit physical suffering.”). the future of prevents reason it is as by A except thereby undiminished B operation. ear, suffering, by the the her the following upon upon period for conferred operates considerable damages B a compensatory anesthetic, for to an pain entitled under causing is but A harm while subsequent preventing Nevertheless, it. upon operation an 1 ..d14,15 Oi t p.1984). App. Ct. (Ohio 1051 1047, N.E.2d nnilassac,adhsia iesn i o euti yboi eainhpo ls nexus close Colo. (D. or 1535-37 1528, relationship Supp. F. symbiotic 676 a Hosp., Rehab. regulation, in Hilltop v. state 1987). Ross result that state); not the grounds and did the hospital the on licensing between hospital, hospital non-profit and private a assistance, defendant, financial of dismiss to motion the e infra See See recipient who the person thinks mistakenly a a he contrast, R as if in even person battery; intent, for another requisite intent the strikes w requisite possess who does the disease another lacks Huntington’s hugs spasm intentionally from bodily involuntary suffering an person of a result example, of 1914). way App. (N.Y. By 93 92, N.E. 105 Hosp., R York New of Society v. Schloendorff e.g. See, ESTATEMENT ESTATEMENT udcnett h hug. the to consent ould n “ saflce ihdans noeer h nom e hsca,B htsede o desire not does she that B, physician, her informs She ear. one in deafness with afflicted is (“A 2 and ntesmnlcs of case seminal the In codn othe to According R ESTATEMENT , § lvnv rzrCetrMdclCne,6 .Sp.2 3 ED a 99 (granting 1999) Pa. (E.D. 436 2d Supp. F. 60 Center, Medical Crozer-Chester v. Klavan 34 II(B). (S (S hsotqoe rnil evsa h onainfrapplication for foundation the as serves principle oft-quoted This ECOND ECOND (S ECOND ) ) OF OF ) T T ORTS OF ORTS ettmn Scn)o Torts of (Second) Restatement T ORTS §§ § 0,Cmeto lue()(97.Se o xml,Illustrations example, for See, (1977). (a) Clause on Comment 905, 3 8(1977). 18 13, § cledrfv oit fNwYr Hospital York New of Society v. Schloendorff 33 3 omn (1977); Comment 13, 38 hs rmadcrnlperspective, doctrinal a from Thus, e also see 37 hscneti particularly is concept This 36 codnl,aphysician a Accordingly, ,a saeo ec .Saio 469 Shapiro, v. Leach of Estate atr cuswe a when occurs battery 39 L NHE AL ET YNCH 35 , . Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 iesvn rlf-utiigcr gis h ain’ will. of patient’s imposition the the for against remedy care a life-sustaining seeking or law life-saving case nominal of most than context proven have the more that in anything factors problematic recover the precisely to are harm these Unfortunately, cognizable damages. legally a of sation therewith. compliance defendant’s the and care of testimony standard expert the require regarding generally suits proof negligence simple touching, than unconsented rather because, of under recover to difficult more therefore and h tnado aeadmyb ujc olaiiyfrnegligence. for liability to subject be with may comply to and failed care has of physician standard insuffi- the the or involved, incomplete risks an the on an of based makes disclosure is cient consent physician such the but consent, when obtain However, to treatment. effort provided informed the obtain to fails for entirely consent or wishes patient’s a of violation direct in ment Negligence 2. C n’ ih orfs ramn”we h ramn eut nte“unwanted the in results with treatment interference the intentional when e or treatment” in refuse negligent claim “a to a simply right from is one’s resulting rather but damages action, for of cause tort independent an not is living” raise. they delve questions article normative this the of into sections how literature, Subsequent deeply and courts. and more the suits law by these treated case of be nature the to the ought in they surrounding Both confusion tort. much new been has a there as described been claims often these have and violated, “wrongful been have for instructions end-of-life claims their independent when living” asserted also have patients some recovery, Living” “Wrongful Term the of Use 3. h udno rvn httedfnathdalgldt ocnomt a to actual suffered conform legal has plaintiff to the the and was damages. duty plaintiff, breach the legal by such suffered duty, injury a the that of had breached cause defendant defendant the the care, of that standard proving of burden the 43 42 41 40 tnino life.” of xtension MLAC WITH OMPLIANCE Integrity Strasser, Mark infra See negligence traditional a followed not generally R instead. have battery analyses on relying doctrinal either format, in their grounded be battery, may or care life-saving negligence unwanted involving claims recognized have courts although e.g. See, ohcuei-atadpoiaecause. proximate and cause-in-fact both ESTATEMENT oee,bt elgneadbteypanif utdmntaecau- demonstrate must plaintiffs battery and negligence both However, atr stepeerdcueo cinwe hsca rvdstreat- provides physician a when action of cause preferred the is Battery tti on,hwvr ti seta nyt eonz ht“wrongful that recognize to only essential is it however, point, this At of theories common-law well-established and basic these from Aside nieapanifalgn atr,apanifi elgneato has action negligence a in plaintiff a battery, alleging plaintiff a Unlike ,36S , 41 § atelv a ukr,72SW2 0,96(o p.18) ti ot oigthat, noting worth is It 1988). App. (Mo. 906 902, S.W.2d 752 Buskirk, Van v. Baltzell II(B). nti epc,angiec cincnb oedfcl oprove, to difficult more be can action negligence a respect, this In (S AN AJ ECOND D A rsrdnei iary nBtey rnflLvn,adteRgtt Bodily to Right the and Living, Wrongful Battery, On Disarray: in urisprudence IEGO 43 DV ) hs wogu iig sntigmr hnadescriptive a than more nothing is living” “wrongful Thus, OF ANCE .R L. T ORTS EV D . 9,12 (1999). 1021 997, IRECTIVES § 2A(95.Nt ht“ea as”i hscnetencompasses context this in cause” “legal that Note (1965). 328A 42 40 141 Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 fec or’ nlsspit nta orjcino opnainfrthis for compensation of reading rejection careful damages. to of a instead set life, particular points ac- of analysis of prolongation court’s “cause wrongful each the or of of living rejection wrongful a of as tion” circumstances such under recovery allow r‘rnflboe r, n utncsaiyivlea neligclaim underlying battery.” an involve or necessarily negligence of must of claim and “[A] arm,’ explained: broken helpfully ‘wrongful has or court one a least is living partic- at wrongful a As with facts. connection of in set raised ular claims tort traditional encompassing term 142 bd ysc eusswtotrsigliability. risking could without they requests that confident such not by were abide not were physicians precedents well-defined; related the sufficiently and these yet question in in recovery rights allow the to that noting unwilling contexts, initially were Courts family. patient’s or f Law Case Relevant B. significant any in accountable physicians held for being way. of door fear the without have rights opens those and rights violate their remedy to established often adequate an whose is without that patients violated been but leaves uncompensable, unfortunately is This to life fail message. generally continued matters that these explicitly considered already state have The compensated? that be courts often circumstances damages of what most non-traditional handful Under those action, should is: all, of article at this cause if how, of existing and heart an the of at question variant The a battery. dealing than are more we accordingly, nothing not; The are itself. with damages life the prolonged but is traditional, which is injury, then, an harm, to leading violated, been has care nw ne icmtne leel o a eoe rmtetm htthe care that of time refusal the from made removed patient far too the allegedly when circumstances under wishes known patient’s a against treatment Questioned Refusal of Contemporaneousness obtain. to 1. difficult incredibly remained the has for right recovery that well-established, of became violation care life-sustaining refuse to right 46 45 44 iue owtda iessann ramnsuo h eus fapatient a of request the upon treatments life-sustaining withdraw to ailures fTaylor of 0 .d10 9hCr 1983). Cir. (9th 1109 F.2d 704 e.g. See, ( ( 1996) 1992) App. (Ohio (Ohio 227 225, N.E.2d id 671 e.g., Inc., See, Hosp., George Francis-St. St. v. Anderson h aletcssseigdmgsfrtepoogto flf involved life of prolongation the for damages seeking cases earliest The refuse to right recognized patient’s the context, living wrongful the In oecut aedne eoeyfrteipsto flife-sustaining of imposition the for recovery denied have courts Some , atigv lnaeAvnitMdclCne,29Cl pr 6 18) otrv Tourtellote, v. Foster (1986); 360 Rptr. Cal. 229 Center, Medical Adventist Glendale v. Bartling xr ex .at el. 2 ( 228 T yo .Mni eia netr,77NE2 6,41(n.Ap 2000). App. (Ind. 471 466, N.E.2d 727 Investors, Medical Muncie v. aylor nesnI Anderson nesnIII Anderson damages ;Alr .Foe op,69NE2 6,53(hoAp 97;Estate 1997); App. (Ohio 563 560, N.E.2d 699 Hosp., Flower v. Allore ); 44 45 ;Adro .S.FacsS.Gog op,64NE2 4,846 841, N.E.2d 614 Hosp., George Francis-St. St. v. Anderson ); lhuhcut aeprsdterrlcac to reluctance their phrased have courts Although ocp,js sacamfr‘rnflwhiplash’ ‘wrongful for claim a as just concept, 46 oee,ee fe the after even However, nesnIII Anderson L NHE AL ET YNCH ). . Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 or fApasakolde hs ocrsadto oehtmore somewhat a took and concerns approach. these nuanced acknowledged Appeals of Court h iigadcrusacso e eua.Tefml rudta,because that, argued family The alive refusal. regarding kept her parties be of the to circumstances among wish and dispute timing not some the did was she there “that ad- although machines,” expressly physicians by her had and Leach hospital Ms. plaintiffs, the vised without the support to life According on her consent. placed obtaining later physicians that alleged arrest, monary a a olwn eiey e hscasoerd e euas fwihte were they which of refusals, e her overrode Werth physicians Ms. her when delivery, However, following behalf. her on she form e where refusal hospital another the signed at band products pre- blood written refuse a to w filed desire she her twins, of with registration pregnant became she when Accordingly, in example, For initiated. actually was care C obdl uooyi h eia ramn context.” treatment medical be the to right in patient’s ought autonomy the bodily and undermine to “seriously flawed could clearly in it see because is rejected will reasoning strenuously we such as those However, subsequently, than necessary. detail became circumstances more transfusion different the under when made place was was in refusal it patient’s the because that operable defense physician’s not the bat- Werth’s accepted Ms. and of claim dismissal court’s tery lower a affirmed Michigan of Appeals of n cneprnos ooerd h mle osn rsn nteface the informed in fully arising be consent necessity. to medical implied had urgent the refusal of override any to that held “contemporaneous” it and emergencies, in even care, epaigruiepoeue,nta iewe i perdta death that appeared given.” not “it were when transfusion a time if con- possibility a was a she at be while might not made procedures, were they routine because templating standard that met refusals prior 52 51 50 49 48 47 piil wr,adpoie transfusion. a provided and aware, xplicitly anesthesia general under while bleeding uterine life-threatening xperienced MLAC WITH OMPLIANCE uddlvr ssewsamte o eieytomnh ae,hrhus- her later, months two delivery for admitted was she As deliver. ould hoi eeaiesaefloigscesu euctto rmcardiopul- from resuscitation successful following state vegetative chronic eoa’ ins h eivdi sasnt eev lo transfusions. blood receive to sin a is it believed who Witness Jehovah’s saeo Leach of Estate Strasser, Id W Id W 3A 13 Annas, George (1994); a led curd hs h su fmtra-ea oflc a o etr ftephysician’s Pregnancy the During of Procedures feature Medical a care. Court-Ordered not of Reexamine was refusal to conflict patient’s Chance maternal-fetal the of override issue to the decision Thus, occurred. already had erth . .a rhv alr 7 ..d46(ih p.1991). App. (Mich. 426 N.W.2d 475 Taylor, v. erth vntog h or lie orcgieargtt euemedical refuse to right a recognize to claimed court the though Even drsigasmlrstainin situation similar a Addressing t M 2.Telvso s et’ hlrnwr nn agra euto e eua,bcuedelivery because refusal, her of result a as danger no in were children Werth’s Ms. of lives The 427. , .J.L.&M 7 ..da 430. at N.W.2d 475 supra oe4,a 1010; at 43, note , 6 ..da 1051. at N.E.2d 469 ED A . 1 (1987). 213 DV 52 h mato eia ehooyo h rgatWmnsRgtt Privacy to Right Woman’s Pregnant the on Technology Medical of Impact The ANCE h aiyo daMreLah ain h elinto fell who patient a Leach, Marie Edna of family The D IRECTIVES e infra see 49 h or a o ovne htM.Werth’s Ms. that convinced not was court The oe 3-5adacmayn text. accompanying and 130-35 notes See saeo ec .Shapiro v. Leach of Estate lcaOuellette, Alicia 48 W rhv Taylor v. erth 50 51 e eia ehooy A Technology: Medical New hrfr,teCourt the Therefore, , ,57A h ain was patient the LB , .L.R h Ohio the EV 143 . 927 47 , Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 hs ae i o nld naayi ftedmgsptnilyaalbeto available potentially claims. damages living care, the wrongful of life-sustaining bringing analysis plaintiffs refuse an to include not right did patients’ cases these the violated had defendants the ietv aeb s ec,a ela e eia odto ttetm the time the at support. condition life medical on her her as placed well hospital as Leach, Ms. a by make made to directive need would court trial the behalf, f Leach’s Ms. on brought claim the ol icmetteepeswse fatria ain ywiigt act critical.” to and waiting by physician comatose no patient “a was terminal support, else patient a life or the of consent, of wishes until to express possibility the refusal the circumvent that rejected could negate had would Leach emergency Ms. later if words, other osn omdcltetet h or oe htcnett particular a has patient to the if consent situations, that emergency in noted e even court implied, be the cannot treatment, treatment medical to consent could that situation emergency consent. no without was treatment there additional measure, justify sim- preventative provided been a have suc- as to appeared through ply support restored life been the and already resuscitation had cessful breathing and heartbeat Leach’s Ms. 144 e orsta aeeggdi uhaayi aelmtddmgsawards damages limited have minimum. analysis barest such the in to engaged have that courts few ecfly ntecneto emnlilescudsilb rae nan on treated be still die could crash. to automobile illness an desire in terminal the injured of if expressed basis context “generally emergency had the who in patient peacefully” consent a implied emergency, negate would an crisis” impending in an of advised fully patient ill context. emergency refuse the the for or into satisfied over accept be carry must to to refusal understanding, consent patient’s and knowledge informed both for including requirements care, traditional the that 56 55 54 53 culdtriaino h xc icmtne n otn fayadvance any of content and circumstances exact the of determination actual pesywthl osn ota ramn napeiu occasion. previous a on treatment that to consent withheld xpressly bann aae o eosrbehr,cut’rlcac odsusteqeto fdmgsonly been damages has of cases question the living discuss wrongful to in reluctance e courts’ plaintiffs with plaintiff harm, by connection the demonstrable faced in a to for challenge incurred available damages expenses greatest obtaining be claim medical the might a of that damages Act) Given stated the what Expense treatments. had of Family maintained the plaintiff the issue thereafter the (under the that recovery and address than found not consent other court did his appeals but The battery, without medical consent. patient for without a support on life on surgery patient heart awarded. physicians against be open claim Act might Expense performed Family damages a who of proceed dismissal what court’s to trial of negligence a reversed or which analysis 1282, battery at adequate N.E.2d on conduct based claims to living failed wrongful have allowed have that courts some Even Id Id Id aebtsteproblem. the xacerbates . . .a eas ete the neither Because lhuhrcgiiga mrec riaiygvsrs oimplied to rise gives ordinarily emergency an recognizing Although ywyo xml,tecutntdta,wieterfslo aterminally “a of refusal the while that, noted court the example, of way By t 1053. W erth nor Leach 56 orsrahdadtriainthat determination a reached courts sdsusdblw oee,the however, below, discussed As 54 oee,tecutstressed court the However, 55 codnl,t evaluate to Accordingly, e,eg,Gragg e.g., See, L NHE AL ET YNCH 53 , 696 In . Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 as—pcfial,ta i des elhcneune eereasonably were consequences court, health proximate appeals adverse demonstrated the his he if to that damages cause—specifically, actual According and such stroke. recover pain could Winter’s (including Winter Mr. Mr. expenses extraordinary to expenses, and related medical home, suffering) the nursing out the pointing by of issue costs damages the of rejection court’s damages. noting nominal and for defibrillation request his the withdrawn from had resulting he Winter damages that Mr. actual finding hospital, no the suffered of court had favor trial in the judgment however, summary remand, granted prox- On again actions harms. such compensable whether any so, caused if imately and, instructions Winter’s Mr. specifically by treatment defen- providing precluded the by negligence whether or of battery determination committed a had for dants back sent was It remanded. was case te am htwr esnbyfrseberslso h defibrillation, causation, the of chain of for the break recover results to to occurred foreseeable event able superseding reasonably be no were provided might Winter that Mr. harms that other determined court the because e iigsc amwsntcmesbeudrOi law. Ohio contin- under of compensable “harm” not the of was basis harm the living—such on recovery ued sought Winter Mr. that—to extent determined similarly the court the where appeal, on affirmed was holding swl smdcladohrexpenses. distress, other emotional and and medical suffering, as pain, more well as him two causing approximately constituted actions negligence, for nurse’s live and the that battery to alleged Winter on Mr. that went complaint, stroke his he In a but years. suffered side, he Despite right he days, chart. his when few paralyzed his Winter a Mr. on Within defibrillated fibrillation. entered nurse ventricular order a suffered Blue” instruction, Code clear “No indisputably a this in wish reflected a admission, was following that physician extraordi- his receive with to treatment not life-sustaining desire illness, nary emergency his his receiving discussed Before after he pain. deterioration Consequently, wife’s chest resuscitation. his for witnessed hospital had the Winter to Mr. who liv- patient admitted a wrongful Winter, been of Edward initially to subject had care the unwanted on of provision date the involved to ing, case complex) (and discussed widely Rejected Life of Prolongation for Damages 2. C ia,hligta teei ocueo cini hofrwogu admin- wrongful for Ohio living.’” ‘wrongful in i.e., action treatment, of medical cause life-prolonging no of is istration “there that holding pital, 60 59 58 57 MLAC WITH OMPLIANCE Id I Anderson III Anderson I Anderson .a ntescn pel h hoCuto pel epne otetrial the to responded Appeals of Court Ohio the appeal, second the On nesnv t rni-t ereHsia,Inc. Hospital, George Francis-St. St. v. Anderson h ra or ntal rne umr ugeti ao ftehos- the of favor in judgment summary granted initially court trial The t 845. , , 1 ..da 845-46. at N.E.2d 614 843. at N.E.2d 614 , 7 ..da 226. at N.E.2d 671 A DV ANCE D IRECTIVES 57 , ehp h most the perhaps 59 However, 58 60 This 145 the Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 fohr o hc hr ipysol en oeaycompensation.” monetary lives no the be affect that should life simply this there in which make for people others that of assaults, breaches technical even “indeed or concluded, duty court of the mistakes,” some are Mr. “There that ages. determined court the but W defibrillation, chest from from ribs burns broken or example, compressions battery—for the by caused directly damages h natdrssiaiemeasures. resuscitative from unwanted sequence” unbroken the and continuous “natural, a in occurring foreseeable, 146 befrseblt a edmntae ya“aua,cniuu n unbro- and continuous “natural, ke a by demonstrated be may foreseeability able any in stroke [his] to contributed or wa caused itself defibrillation the “that dence ev simplest “its called it what to question the form. condensed treatment then the provider It from medical procedure?” resulting the damages or is consequential instructions, foreseeable pro- patient’s all or the for treatment liable against patient life-prolonging a a to administers cedure asked: provider It medical appeal. discretionary a accepted “Where Ohio of Court Supreme the however, a ewudhv enal ocnuthssekn naeet u o the for but engagements speaking his conduct that to demonstrated able plaintiff been the have if would even he income, frac- (a) the lost for plaintiff’s only the liable for be would employed not defendant ture, reasoning the Ohio, the of Court to Supreme the According by conducting engagements. from him speaking preventing paid and pro- jawbone planned college his his fracturing jaw, punches the student in a fessor that Imagine clear. foundations erroneous or his and action tortious injury. more defendant’s own other, the her some between demonstrate connection must causal also in but direct, foreseeable actions, reasonably defendant’s was injury the the of of that light cause and suffered, but-for she a or was he action defendant’s injury the the that a only beyond reasoning, not court’s law, show the must tort plaintiff Under of determination. area cause other proximate traditional any the in recognized not requirement, additional 64 63 62 61 ne’ atr a hsclyhrls,ettighmol onmnldam- nominal to only him entitling harmless, physically was battery inter’s ni i nuiswr esnbyfrsebe eas epeetdn evi- no presented he because foreseeable, reasonably were injuries his if en n pnreview. upon Id III Anderson ( *5 at 1995), App. (Ohio 109128 WL III 1995 Anderson Hosp., George Francis-St. St. v. Anderson y .a eune fijre,teSpeeCuto hoefcieyipsdan imposed effectively Ohio of Court Supreme the injuries, of sequence” te hnb ipypoogn i life.” his prolonging simply by than other nrjcigteaplaecutscsoaydtriainta reason- that determination customary court’s appellate the rejecting In damages, requested the to entitled not was Winter Mr. that held court The court, trial the by reconsidered be could causation of issue this Before plcto fti eurmn usd fwogu iigmksits makes living wrongful of outside requirement this of Application t ... 228. s‘otne iig opnal injury?” compensable a living’ ‘continued Is , , See 7 ..da 229. at N.E.2d 671 7 ..da 2-7 ayageta h or vripie h seta question essential the oversimplified court the that argue Many 226-27. at N.E.2d 671 Strasser, supra oe4,a 1029. at 43, note 61 63 r itrcudrcvronly recover could Winter Mr. 62 L nesnII Anderson NHE AL ET YNCH 64 ). . Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 itato ytefito htlf sawy eet feshp htthings that hope offers benefit, direction. a right always the without is in autonomy, moving life are that patient fiction of the violation by as associated distraction significant situations the the these for from recovery recognize resulting allowed to have harms and willing battery been of Nonetheless, cases have precedent. textbook courts nearly as some reasoning that court’s fact the the of cannot analysis practitioners the and an scholars in from so reported benefit reporters, been legal have in than successful rather been media have news patients which in cases those ietvsb e elhcr rx otecontrary. the to despite proxy Hospital a care Joseph suffering health St. after her Genesys by at who, ventilator directives hydration a woman with and coma a nutrition two-month artificial was a and through She maintained Young. was 1992, Brenda in seizure of family the to orcvrmn ftedmgsrsligfo h natdpoogto of prolongation unwanted the from resulting life. damages par- plaintiffs the will, for of her many impossible same or effectively recover his it the to against renders inspire alive approach should kept this result It patient because credulity. a a ticularly is Such strains plaintiff income. tort the lost standard when such a concerns in of result context would foreseeable the jaw reasonably in his was upon it assault (b) the and that assault defendant’s by caused fracture C inwt rnfllvn cin aebe e n a between. far and few been have actions living wrongful with tion Awarded Damages Limited 3. wa this but likely, was recovery no unheeded. that went clear request became it once removed be support daughter’sk her that assured was but mere support, v life were want not to did physicians consented daughter told her she repeatedly that she treatments support; life the artificial actually whether or care” to “comfort as misled was proxy 67 66 65 niain uefeig ilss n eiainwr ipytetet to treatments simply were medication and dialysis, feeding, tube entilation, e e oecmotbe h rx loakdta e agtrslife daughter’s her that asked also proxy The comfortable. more her eep MLAC WITH OMPLIANCE aae o rlnaino ieaentrcgie ne holaw. Ohio under recognized not are life of prolongation for damages T case, one least at Notably, Die to all Right injury, Individual’s an an on causally as Infringement Physician’s be recognized a would for treatment is life-saving act. life” unwanted tortious defendant’s of “prolonged the imposition to if linked the after that occurring argued harms or have damages commentators some course, Of 9-0 (1997); 399-400 ,19,a Al. at 1996, 2, se mrLewin, amar 65 Fo Since s on wk rmtecm naprilyvgttv tt and state vegetative partially a in coma the from awoke Young Ms. v nulyrlae ohrmte’ ae u a erde n spent and bedridden was but care, mother’s her to released entually re ape n19,aMcia uyaadda$65mlinverdict million $16.5 a awarded jury Michigan a 1996, in xample, Anderson goig“ih oDe ietvs eia omnt sBigSued Being Is Community Medical Directives, Die” to “Right Ignoring e loinfra also see A DV ANCE , ae nwihdmgshv enaaddi connec- in awarded been have damages which in cases Allore D § IRECTIVES III(C). , 9 ..da 6,hsrle on relied has 563, at N.E.2d 699 e,e.g. See, , onDnhe omn,“ Comment, Donahue, John ,14J.C 67 ONTEMP nesnIII Anderson oal,M.Young’s Ms. Notably, rnflLvn” Recovery Living”: Wrongful .H EALTH , 66 ocnld that conclude to ..T N.Y. .&P & L. Moreover, IMES OL ’ Y , 147 June 391, Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 ik apatc utwt h oeta o infiatdmgs increased damages, significant for potential die to the her with or him suit allowing malpractice thereby and a patient risks a treat to not choosing other, the opinewt ains euaso aene o emtvtdb actual by motivated be not need care of malice, refusals patients’ with life compliance of quality in decline the precisely of fear experience. for ultimately saved those they be of lives to the want save not to do often unfortunate who too the used to are advances response effective technological that an consent, reality provide implied to and fails an generally causation be law about cannot current arguments itself through life indirectly that maintaining or known by injury negligence directly and either battery living, of wrongful variant as special the rejecting By outliers. the bu LIMITS SETTING AND CONSEQUENCES CREATING III. will. her was against Young hospital Ms. the treating that in finding battery court’s of jury’s trial guilty the the appeal, voiding On unfortunately me.” amount, “bury or except “water” speaking like aw not things screaming, say and occasionally thrashing to rhythmically day each hours 148 lv n nlf upr o i aso hthrfml ecie sunnec- will. as living described family her her of what violation of in days six suffering, for essary support Neumann, life Madeline on resident, a and keeping alive for Center Geriatric Morse L. Joseph h ain’ ihs are iko nylmtdsntoso liability; or sanctions limited only against even of life, risk patient’s a a carries saving a wishes, hand, reflect patient’s to one the likely On more risk. is of behavior evaluation physician rational Instead, best. is what patient the odvlpapa o eln ihM.Nuansdciei h aeo her of face the in decline failed Neumann’s had Ms. home with directives. nursing dealing advance for the plan that a found develop jury to the physician, Neumann’s Ms. 72 71 70 69 68 t n aiiisMs edPtetsWse,PnlRules Panel Wishes, Patient’s Heed Must Facilities ing Diaz, Missy http://www.elder-law.com/2007/Issue1439.html; ar Parker, Laura atr,o ains eua opyfrtecsso natdcare. unwanted for of awards costs the damages for limited pay consequences, to refusal employment patients’ sanctions, or battery, professional include may These e.g. See, Diaz, J Id a;Rodriguez, 1a.; P aeaesuiaeal eiet goelvn il,btisedte fe aedfclyinterpreting difficulty have situations). often particular they to instead applied but as wills, instructions living the ignore to decide unilaterally caretakers r a eue o$. ilo.Teprisltrstldfra undisclosed an for settled later parties The million. $1.4 to reduced was ard r wrs$5,0 o alr oFlo Directive Follow to Failure for $150,000 Awards ury arker, piit hudb xrml atosa et o hs ae pert be to appear cases these for best, at cautious extremely be should optimists .; e generally see hsi atclrysgicn hnw osdrta hsca non- physician that consider we when significant particularly is This claims, living wrongful for promise future some suggest cases two These iial,i 07 lrd uyrtre 1000vritagainst verdict $150,000 a returned jury Florida a 2007, in Similarly, supra 71 supra ,L ree yaptraitcble httepyiinkosbte than better knows physician the that belief paternalistic a by even or e win, oe6;Parker, 69; note oe68. note naCii,D-o-eieRqet o’ lasWork Always Don’t Requests Do-Not-Revive Crisis, a In supra supra , P tetWoWsKp lv ete u fCourt of Out Settles Alive Kept Was Who atient oe2,a 28-32. at 29, note oe6;Fgri Schneider, & Fagerlin 67; note 70 supra oe68. note supra ,S.F oe2 saigta hr sn vdnethat evidence no is there that (stating 27 note ,E LA J 69 r:Hm iltdLvn il Nurs- Will: Living Violated Home ury: .S LDER huhrln nfvrof favor in ruling Though ,D UN ESERET -S .I L. , ENTINEL S T USA 68 SSUES N EWS , ODAY , a.1,20,a 1A; at 2007, 17, Mar. , a.2,20,at 2007, 26, Mar. a ,19,a C4; at 1997, 1, May , e.2,20,at 2006, 20, Dec. L NHE AL ET YNCH 72 on . Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 l ifiutmtpyia usinntaeal osrihfradempirical straightforward to analysis. amenable not question metaphysical difficult bly context? this in mistake bad nwbe omr hnapioohclase oti usini possible. is question this to answer philosophical a than more no knowable, li hnawogu et li, n samte frs aaeet tis it management, assessment. risk her of with matter disagree a to as li[ving] difficult and wrongful quite claim,” a death have wrongful ad- “rather a hospital would than she One claim that reputation. starkly professional stated has to ministrator harm and payments, insurance C aebe,i scranyraoal ocos h ueta ol eutin fewest.” result the noted: would prevents aptly has that will Schneider to rule regime Carl legal not the professor “No law prefer choose As would to mistake. offensive who reasonable least patients certainly the saving is and it saved been, be have to prefer would who liability living wrongful of w rejection frequent courts’ favor case, in the stands that Were that life. rule of default current the change impermissibly would living Autonomy Patient and Rules Default A. goe ain’ la ihswl epretbihptetatnm sa as autonomy life. patient of reestablish end the help at will good who wishes primary physician clear a patient’s for a penalties that significant policy ignores promises A and care. liability life-sustaining civil or imposes respected, life-saving are forgo decisions to treatment decisions patients’ including that ensure to incen- developed stronger and are new tives unless change to unlikely is directives advance patient 76 75 74 73 MLAC WITH OMPLIANCE udb oeudrtnal.Gvntecoc ewe o aigpatients saving not between choice the Given understandable. more be ould illv itelne n htyul ee ehl conal fyuke h ain rmdying.”). from patient the patient keep the you that if is accountable happen held will be that never worst you’ll the that have, and shouldn’t longer you little and a intervene live do will you if that been has epann ht“fyudntitreeadteptetde,myeyuwl eliable be will you maybe dies, patient the and intervene don’t you “if that (explaining iei lasbte hndah(n hssol epeevdhwvrpsil) n hte there whether and possible), however preserved preferable. be death render should that thus existence whether of (and die, states who death some those than for are bad better be can always death is whether debates life that literature philosophical rich a is There Schneider, Carl Decisions Life-Support Physicians’ See Patients Reviving Greenwald, Judy rnfllf lis u htwsbsdo la iudrtnigo h prpit terminology; birth. appropriate or pregnancy, the conception, of to misunderstanding related clear torts to a referring on not based was was she that but claims, life wrongful ovnepyiin opymr teto oavnedrcie.I a locutrc h present the counteract also may fact in It may directives. awards advance damage to lawsuits, overtrea of attention to threat more tendency the pay by to motivated are physicians physicians convince that shown been has it hi hie bu hte owtda iessann ae;VciLn ailPollack, Daniel & Lens changed Vicki Interventions immune care); Psychosocial legally and life-sustaining be Remedies Legal withdraw would Directives: to they whether or about ensue would choices liability their that assumed physicians whether that er .Prise al., et Perkins S. Henry hte natdlf ruwne et stewreerri nincredi- an is error worse the is death unwanted or life unwanted Whether oecmettr emt erta loigrcvr o wrongful for recovery allowing that fear to seem commentators Some h eairo elhcr rfsinl n ntttoswt epc to respect with institutions and professionals care health of behavior The 76 fcus,bcuew antcmaetekoal oteun- the to knowable the compare cannot we because course, Of iblt o Life for Liability eia tisadRs aaeet iblt tLf’ n;PoiesRs ut by Suits Risk Providers End; Life’s at Liability Management: Risk and Ethics Medical ,B A US t....”). DV .I ANCE NS 75 ,My2,19.Tehsia diitao culysi htsepreferred she that said actually administrator hospital The 1996. 20, May ., e mato ea iblt,Fml ihs n te Etra atr”on Factors” “External Other and Wishes, Family Liability, Legal of Impact ver h usinrmis oee—hc steleast the is however—Which remains, question The D IRECTIVES ,34H rvn l a eut:tega stesse that system the is goal the results: bad all prevent ,89A ASTINGS 74 M .J.M C ED TR . .R 8 19)(rvdn miia aademonstrating data empirical (providing (1990) 185 EP . e,e.g. See, 0 1(2004). 11 10, ,24D 73 EATH , ols Lamont, Corliss S TUD e also See . 7,31(00 (“Because (2000) 391 377, Lewin, itknAttitudes Mistaken ... . supra h thinking The Advance oe67 note 149 Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 eiint ihrwlf-utiigtetet oee,i o ucpil of erroneous susceptible An not mitigated. is correction.” however, impact treatment, life-sustaining its withdraw or to corrected decision be eventually [care] . will quo terminate status decision to the not of decision maintenance a “erroneous in an results that noted Court the standard, ogti h n htms ol prefer. be would to most outcome that is the one avoided and the fear, be generally) is to people sought (or outcome Americans the most that that one such the helpful, be may preferences Eliciting 150 sda.S h neial ucm ftetetlvn iewihi not one is when which life life to a back treatment—living brought of be outcome w cannot undesirable one the but So “[o]ne alive, dead. that is is true is one it when Certainly well. die as can harms continued irreversible because it particularly with life, bring of may side life the on err always should we final, is and clear demand life-sustaining to or life-saving state forgo the to interventions. wish permitting patient’s a by of live evidence convincing to protect to desiring aimed Court patients the care, those medical in unwanted decision refuse Court’s to Supreme patients seemed the allowing concern behind finality force this driving fact, the In be death. against to of living finality than the worse of be because will must one’s will one’s against dying reprieve, welcome nerbe ti osbeta nuwne et ss a htfwrpeople fewer that bad find prevail. so they could is state outcome death a that unwanted in of an will fearful that their possible against if is living even it only avoid Further, unbearable, to death. life seek imagine prefer only would might can people and people most alive alone; currently preferences are they majoritarian because on rely we if 81 80 79 78 77 rhlvn—a ecretd ydeath.” By corrected. be living—can orth ob ovce.Prasi ssmlrybs oaotarl htalw o aypol ob saved be to people Savulescu, many for allows unwillingly. that die Id rule to person a single adopt a to for Cruzan than best person innocent rather similarly our one will for in is their than prosecution it free against the go Perhaps to on people convicted. placed guilty be proof hundred one of to for burden better high is it the system: justifying justice Savulescu, principle criminal Julian the treat.” finds to analogous later is is not, do This than to an often is thing more this or right that “usually, subjectively more argues die suffer Savulescu the to will death. living, prefer die from would worth to suffer who wishes life will patient live who either the to one in if wishes the harmed who question; be if one will empirical only patient the die one than to that life both notes from them he harm allow die, should deciding to we In both die. that them to but preferred allow have scenario, or would whom both of them one treat and treated to was whether he that happy be will whom of one Fo P T Wo h ult fLf,TeSntt fLife of Sanctity The Life, of Quality The eiin ne netit:TeVleo usqetEuthanasia Subsequent of Value The Uncertainty: Under Decisions wr Death oward HIL .a re rs ti,hwvr otwiet xlr ute h data,bcuedeath because that, idea the further explore to worthwhile however, is, It a be times at can death if even that, argued have some regard, this In .R t ape auec rsnsahpteia cnroi hc ems ra w ainsidentically, patients two treat must we which in scenario hypothetical a presents Savulescu xample, t 283. Death EV , 9 ..a 282. at U.S. 497 .3 supra 2 ,13H 80 18) rdFeldman, Fred (1988); ,62J.P 79 oe7,a 65. at 77, note hnepann h euessol ehl osc high a such to held be should refusers why explaining When ASTINGS HIL .2 C 9 TR 16) hmsNagel, Thomas (1965); .R EP .1 oePzlsAotteEi fDeath of Evil the About Puzzles Some 3 18) efMcMahan, Jeff (1983); ,8H ASTINGS 78 77 Death C ... oee,w ikasau u bias quo status a risk we However, TR 81 .R ,4N adi spsil ht wrong a that] possible is it [and EP .3 OUS et n h au fLife of Value the and Death 0 17) .PbtBattin, Pabst M. (1978); 3(90;RcadA McCormick, A. Richard (1970); 73 ,8B IOETHICS , 0 P 100 Tr 9 8(1994). 68 49, HIL Cruzan amn Limitation eatment .R L EV NHE AL ET YNCH . 0 (1991). 205 ,99E . h Least The While THICS . Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 ifiutcalne eurn urnl lea sitnefo oewilling more some even from an face assistance so illegal supporter. doing currently wish of requiring incapable who physically challenge, patients are difficult Those but lives physician. their a end of to assistance when the particularly ex- families, without an their undertaken is and death, patients passive for a choice as difficult result end traordinarily same the having despite which, suicide, ke h ua oyaiefrlne hnayraoal esnwudwant would to person it,” reasonable as inhabit any than to question longer for metaphysical alive to body the able human increasingly the with is “keep science left Medical avoided. again fiercely more once be should are which we and finality, of consequence. significant of matter a is time desired the C n oedsotd vnaltrdcso ogathmhsws antundo cannot wish his him grant to harm.” decision intervening later the a Even distorted. more and his perpetuated; avoid to is right existence the degraded f by own protected His qualities treatment. very medical “the unwanted of robbed alive is kept or will saved his patient against The irrevocable. effectively be may direction either patient’s that in result to withdrawn be may tubes, can will feeding that her or care or ventilator no a his death. be by against may supported saved be there to patient and enough a “fortunate” First, be meantime. not the in occur eiltrst eln oda uhdsicin nteron nta,the Instead, own. their often on so distinctions is such and courts death draw both than to for worse acceptable decline pass is being to it to of debate, legislatures reasonable category able to the been open into and have subjective fall ones fates loved which our of determination the that because However, unbearable. thankful became suffering their been before have we when 85 84 83 82 ml’ ufrn sporce;temmr elae eidbcmsmore becomes behind leaves he memory the protracted; is suffering amily’s MLAC WITH OMPLIANCE rsrigteiaeo nsl soepeest ermmee,a mg htcnb etoe by destroyed be can that image an remembered, be decay.”Id to in prefers steeped end, one “ignoble as an oneself of image the preserving Cruzan O.S.R. Act. Dignity to with free Death are its states through though has country, Oregon this as in practice, the suicide and legalize physician-assisted (1997) 702 to U.S. right hasten 521 protected to Glucksberg, v. constitutionally assistance Washington physician in held direct Court require Supreme thus The and systems life-support death. on protection their not equal denies are treatment, who of challenged withdrawal patients they ordering on to when by patients deaths permits argument their which similar law, hasten state to a the systems made that life-support argued (1997) They 793 suicide. physician-assisted U.S. on 521 ban York’s New Quill, v. Vacco in plaintiffs The scooial oedfcl oacp hnalwn asv et,ee ftetomyb morally be may two the if even death, passive allowing than equivalent. accept to difficult more psychologically v lnayadivlnayetaai r lea neeyAeia tt.Adtoal,atv iln is killing active Additionally, state. American every in illegal are euthanasia involuntary and oluntary .a hs oherr nfvro ieaderr nfvro et aeelements have death of favor in errors and life of favor in errors both Thus, oevr rmtepito iwo h ain,a roeu eiinin decision erroneous an patient, the of view of point the from Moreover, may damage serious and enough, soon come not may death However, t 82 9 Sai,J,concurring). J., (Scalia, 292 , uhptet ilhv og nlvn neste hoet commit to choose they unless living on go to have will patients Such 9 ..a 2 Benn . isnig.JsieBennas one u h motneof importance the out pointed also Brennan Justice dissenting). J., (Brennan, 320 at U.S. 497 83 85 n ti ieyta ecnec on oproa experiences personal to point each can we that likely is it and A DV ANCE 84 Fo D IRECTIVES r Id hs esn,aheigtedahoedsrsat desires one death the achieving reasons, these .a t 310. §§ V acco 2.0-9.Both 127.800-995. htteei no is there that 151 Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 ainst p u n aeteronassessments. own their allowing make by and autonomy Moreover, out individual behalf. opt preserves rule patient’s to rule default a patients the on this form, that assessments default-only protection, life stance its and of in unassailable respect quality the make of taking to worthy By refuses objectively die. evidence are to clear lives prefer absent all life would prolong patient to the works that that one it—namely, favors that oenetcnetn t eea ees flife of defense general its extend can government 152 opnaigptet o iltoso hi instructions. their fully of of violations capable is for that per- patients remedy that legal compensating life directives, a of advance without favor in meaningless in becomes physicians errs mission to patients that theory, instructions position make; in clear default Although, cannot their the make. through legislatures around cannot and contract patient to courts the permitted the one are is decision it a say is also it they that say than more can existence significant continued without that ev ignored deny types legislatures bear—are what and to and courts live not When consequence. to choose not would wish they would considered suffering they and lives of of clear sort themselves—their what about for decisions make patients assessments tive 86 88 87 rb opnal amb eetn liso rnfllvn,te do they living, wrongful of claims rejecting by harm compensable a be er tteEdo ie nosne ieSpotadteWogu ieAnalogy Life Wrongful the and Support Life Unconsented Life: of End the at h xsec fDRodr oaodtegnrlrl frssiain n tts rrgtvst fund to prerogatives states’ and resuscitation, of rule general the avoid f to orders DNR of existence the nu rma natdetnino ie n ocsptet rsroae orl nyo petitions on only physician). rely offending might the to that against surrogates action indignity or disciplinary patients or professional forces suffering seeking and complaints any or life” surpassing injunction of for value extension unwanted inestimable an an from be ensue must life of “preservation h a eeal aoslf,a xiie ylw uihn udrr,teCutsalcto fthe of allocation Court’s the murderers, punishing laws by exhibited as b life, favors generally law The aP W al., et Dworkin Ronald in suicide physician-assisted to right berg constitutional a advocating philosophers the to According berg T oto h ae,tedcosadhsiasdfn hi cin,asrigta aigalf snever is life a saving that asserting actions, their defend hospitals Lewin, alive); and law.”). patients doctors the against keep the to cases, the position of default most current the (affirming (1998) 685 &E ml lnigsrie htd o nld abortion. include not do that services planning amily re fpofin proof of urden et-ieYasAfter Years wenty-Five limC np rdHamilton, Fred & Knapp C. illiam tetsRgtt ieIfre Refusal Informed Give to Right atient’s hseietysnil prahcube,hwvr hntesubjec- the when however, crumbles, approach sensible eminently This htlvn n nteol a hycn ol ifiuerte hnehnetelvste had they lives the enhance than rather disfigure hasten would to can, they nothing way do created only the will others in Still Others on, soon. devise. living fight come that Some will can it lives. doctors pray their they their of if even value weapon death the every contradicts with which and death confirms against dying convictions different of very way embrace which beliefs, about ethical and religious different of people, [D]ifferent rb h a fgvrmn,o epeworjc it. relatives reject or who doctors people of on pressure government, the of by fiat either the imposed, by be or should None irrational. as dismissed THICS , and 2 ..a 702; at U.S. 521 V 8,14(01 ntn htterjcino rnfllvn niae ors esnn that reasoning courts’ indicates living wrongful of rejection the that (noting (2001) 194 182, acco ... . , hspeevto fatnm tteedo iei boueyesnil hynote: They essential. absolutely is life of end the at autonomy of preservation this oeo hs rmtclydfeetattdsaottemaigo et a be can death of meaning the about attitudes different dramatically these of None Cruzan h hlspe’ Brief Philosopher’s The V acco Quinlan: , , h supino mle osn o mrec eia procedures, medical emergency for consent implied of assumption the 2 ..a 793. at U.S. 521 AR Wogu iig:Rssiaina otosItreec with Interference Tortious as Resuscitation Living”: “Wrongful e iwo h uipuec fDahadDying and Death of Jurisprudence the of view ,19N.K , lda mc uieSpotn Respondents, Supporting Curiae Amici as filed Y .L.R See ... hlpG ees Jr., Peters, G. Philip EV w . n oedterlvswe hythink they when lives their end to ant 5 (1991); 253 86 87 ystigadfutrule default a setting by e also see h luino Autonomy of Illusion The 88 ,4 5 lmntn the Eliminating CAL R L. UCLA omnL Cantor, L. Norman supra L ,29J.L.M NHE AL ET YNCH oe6 (“In 67 note EV Glucks- Glucks- . 673, ED . . Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 e suacpal,fri al orcgieteitiscadinstrumental and intrinsic the recognize to fails it v for man- this unacceptable, in rule is default ner the to alternatives personal establishing of possibility C omte o esnbeterdcso od omyhv been. have may so do to decision their reasonable how directive, advance matter patient’s a no all violated and have living they wrongful whenever for consequences liable its providers of care may health it hold importance care, to refuse the appealing to seem right and professionals concomitant respected, the care and are autonomy health patient wishes protecting the of their that to ensuring patients for of responsible vulnerability the wishes, of-life Undesirability the and Directives Liability Advance Strict with of Problems Attach? Liability Living 1. Wrongful Should When take. should B. remainder it the shape recognized; precise the be Thus, explores to be. article ought this might battery of of wishes will variant those they living whatever wrongful that seriously, the such more directives, wishes structure patient incentive patient implementing appropriate take more with who a charged creating those those thus for saved, for liability be to death want wrongful not to do simply corollary would appropriate it an Instead, allowing establish approach. saved; sanctity-of-life be circumvent chosen not to government’s would damages want the living who wrongful of patients recovery tailored save carefully not encourage to would professionals damages living medical wrongful of acknowledgment that expect to rdc htsc ytmwudhv h eeca feto encouraging of accurately thinking. might effect wishes current their we beneficial their about communications letter, reflect the their have the that sure would to make to system directive patients a stated such patient’s intentions. incentive that a strong good predict a follow physician’s provide to would the liability physicians strict of for of regardless system a harmed because be Further, may patient the 91 90 89 le fproa autonomy. personal of alues MLAC WITH OMPLIANCE iigtp rbesi odatlvn il ihmr oeih) hsi nlgu otearguments the to analogous is This foresight). more with wills living draft to is problems living-type n hsca Autonomy which Physician in and cases marginal in resuscitation avoid patient’s might See they a the life, saved to of resuscitation oblivious quality whenever a poor pay predicted, a to was in had resulted institution outcome outcome but or poor good patient physician a a a if where when Further, resuscitate choices. it intervention would autonomous that avoid they Instead, in and wishes. attractive likely patient’s is seemed a structure with a comply to Such physicians followed. were wishes their w whether of regardless outcomes We See ain eeteeswnst esaved. be to wants nevertheless patient udb airfrptet ocvrtermdclepne,btteewudb oseilicniefor incentive special no be would there but expenses, medical their cover to patients for easier be ould tvnI dlsoe Note, Addlestone, I. Steven nlgto h eiu osqecso alr oflo ain’ end- patient’s a follow to failure of consequences serious the of light In reason no is there liability, death wrongful of threat the given Importantly, rcRakowski, Eric ih locnie ofutrgm nwihptet r opnae o a resuscitation bad for compensated are patients which in regime no-fault a consider also might A T DV kn n aigLives Saving and aking ANCE ,46V D AND iblt o mrprMitnneo ieSpot aacn Patient Balancing Support: Life of Maintenance Improper for Liability IRECTIVES .L.R 91 89 EV . 25 28(93 sgetn n a oaodwrongful avoid to way one (suggesting (1993) 1278 1255, ,93C OLUM .L.R EV . 03 13(1993). 1113 1063, 90 fe all, After 153 Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 h oeta nlt ftecneune fpyiin’dcsosregarding decisions of physicians’ light above, of in described consequences care laws, end-of-life the its of of finality applications potential will incorrect legislature the reverse the to where opportunity interpretation, the statutory have of context the in propriate 154 ovrey ain h at P,bleigta h ol aea70% a have would better. she it that understood believing he CPR, if wants want who would patient he a treatment in Conversely, is a recovery, full not denied a ventilation, being provide of artificial to needed danger accept briefly never is sometimes would it understand. he that not that recognizing do states they who that patient treatments “[A] about preferences strong express ten etvshsbe hw ob are oproscnieigwehrto whether considering persons to barrier di- a advance be of advance documents. reading these to draft draft dictatorial to shown a patients been of of has fear part rectives perfect the the more fact, on in In reluctance not altogether. resulting a directives backfire, in could instead to will but adhere living to drafting, a failure of for terms liability literal strict the imposing worrisome, most potentially ie eetcnuinoe h enn n mato aiu alternatives various of impact and meaning treatment. some- the for preferences over stated patient’s confusion a reflect that times evidence of light in inappropriate be revise to term. and short letter the consequences, the in undesirable least to and the at followed unintended for to being lead patients required are accordingly—could themselves—for directives be them manifest their would to that inevitably liability realize strict that to of time rule the a of did, implications they if instruc- Even their of tions. interpretation erroneous physician’s a override to opportunity 94 93 92 dac aePlanning Care Advance See supra See this with problems The text, laws. the future in drafting noted al., and et are in wrong Sahm directives things careful S. advance got of more court court context be the the the if to in regard, court approach legislature the this legislature the override the in to motivate as fails act do also simply to legislature should will legislature certain it the the Rather, a If encourage mind. wants in will instructions. had which legislature likely its said, legislature the in the if what precise at interpretation: guess and not statutory clear should of be context must the it in result, textualists strict by made Vi inn navnedrciewr eae owrista tmgtb sdinappropriately.”). used be might it that worries to related were directive advance an signing 9 (2005); 298 ramnsadhat ucms rte a aedfclyfruaigadepesn preferences expressing and formulating difficulty have may situations.”). they future about or outcomes, health and treatments eia Care Medical ew hr r,hwvr infiatpolm ihti prah is and First approach. this with problems significant however, are, There iea plcto ftetrso ain’ dac ietv a also may directive advance patient’s a of terms the of application Literal oadL arc tal., et Patrick L. Donald so n deec oAvneDrcie oprdt eia Staff Medical to Compared Directives Advance to Adherence oe 08 n copnigtext. accompanying and 80-85 notes e also see ,14J.M W 94 udTe olwWa a enLi on acrPtet’adHat Controls’ Health and Patients’ Cancer Down? Laid Been Has What Follow They ould Fo P re u .Dxe tal., et Dexter R. aul , ED 2 A 127 ape ice n olausfudta ainsof- patients that found colleagues and Fischer xample, .E 92 V THICS ldto fPeeecsfrLf-utiigTetet mlctosfor Implications Treatment: Life-Sustaining for Preferences of alidation ute,wieasrc etaitapoc a eap- be may approach textualist strict a while Further, NNALS 7,19([]poiaey2%o ains eevtosabout reservations patients’ of 20% (“[A]pproximately 179 173, I NTERN 93 .M ainsaentasrdo aigtesame the having of assured not are patients potnte o dac ietvst nuneAcute Influence to Directives Advance for Opportunities ED . 0,59(97 “ainsmyntflyunderstand fully not may (“Patients (1997) 509 509, infra ,8M . ED ,H ., EALTH L NHE AL ET YNCH C ARE &P HIL . . Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 ih o ati h nesodtetu ieiodo success.” of likelihood true she intervention the an understood to she subjected if being want of not danger might in is recovery, full of chance C 100 and illness of context the dying. in is time rather short but relatively sick a very merely constitutes longer what no Further, is patient a when determine prognostication. at and invites interpretation this subjective as of such degree care some for least instructions of statement conditional a Clearly, neddt nwrteeqetos u ako lrt a opoietheir compromise may clarity of lack value. instructive but questions, these answer to intended c,freape nldstefloiglanguage: following the includes example, for Act, seriously very a of do, life most the as prolong cease, to should to efforts patient willing ill when are times who are physicians for there Even that patient. accept the of wishes discern- and to intent barrier the a ing present itself may directives advance of language standard fot h ain ol attriae n when. and terminated want would patient the efforts 99 98 97 96 95 MLAC WITH OMPLIANCE plcto oapriua hieaotteptetscare.”). patient’s the about choice particular a to application n dac-aePann:Prpcie rmTreCutiso tisadEpidemiology and Ethics on Countries Three C from Perspectives executed.”); appropriately Planning: Advance-Care is and it circumstances what under and a nevninPeeecsi nAvneDirective? Advance an in Preferences Intervention T Nebraska. except state every by adopted been has Act Act Decisions This 2007). Care 13, Health Uniform Laws, State Uniform (1993), on Commissioners of Conference National A al., et Upadya Anupama Id al., et Teno M. Joan Directives Advance of al., Discussion et Fischer S. Gary rcs”aedfcl oapyi pcfi lnclsituations). clinical specific in dying apply the “prolong to to difficult serve are that interventions process” refusing language standard the containing documents that S t1432. at yohtclAtnm n culAtnm:Sm rbe ae novn dac Directives Advance Involving C Cases Problem J. Some Autonomy: Actual and Autonomy Hypothetical n tal., et eno OC LIN M ako lrt mn ains hscasadfml ebr bu htalvn ilmandates will living a what about members family and physicians patients, among clarity of lack .a .J.R ’ LIN sTn n olaushv bevd npatc tcnb ifiutto difficult be can it practice in observed, have colleagues and Teno As coses r(i)telkl ik n udn ftetetwudoteg the outweigh would treatment of burdens and con- become regain risks I not likely (ii) will e time; the I certainty, short (iii) medical relatively or of a degree sciousness; within reasonable a death to my and, in unconscious result will that condition Id Decisions Healthcare Uniform the by proposed will living model The the that given essential is interpretation for room leaving Additionally, t .E Y pce benefits xpected 508. 0,51(1997). 511 508, .E THICS o at ESPIR THICS o atm iet epoogdi i aea nual n irreversible and incurable an have I (i) if prolonged be to life my want not tp/wwlwueneublacie/l/nc9/90/hd9.t ls cesdNov. accessed (last http://www.law.upenn.edu/bll/archives/ulc/fnact99/1990s/uhcda93.htm supra 7,23(99 “Adac ietvsaetpclyntetrl la n eiiei their in decisive and clear entirely not typically are directives (“[A]dvance (1999) 273 271, .C 1 (2004). 319 RIT A oe96; note .C 98 oAvneDrcie rvd ntutosta ietCare? Direct that Instructions Provide Directives Advance Do DV ARE P ANCE ... tetKoldeadPyiinPeitoso ramn rfrne After Preferences Treatment of Predictions Physician and Knowledge atient P M tet hsca,adFml ebrUdrtnigo iigWills Living of Understanding Member Family and Physician, atient, . e also see ED 99 D . 40 42(02 “u aadmntaecnicnl htteeis there that convincingly demonstrate data (“Our (2002) 1432 1430, IRECTIVES ,13J.G ayS ice tal., et Fischer S. Gary EN 96 .I NTERN hyms eeteesdtriewhich determine nevertheless must they , 5 A 157 .M ED RCH . 4,42(1998); 452 447, a ol fCr eUe oPredict to Used Be Care of Goals Can .I e also see NTERN 97 e also See .M dac ietvsare directives Advance oneLn tal., et Lynn Joanne ED . 0,81(97 (noting (1997) 801 801, e also see Upadya, ,45J.A 95 ihlWreen, Michel supra M Dementia .G oe98, note ,10J. 155 ERIAT , 166 ,15 100 . Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 e 105 104 103 102 101 binding,” so be and to ambivalent document so the are want authors not whose to document court ac- likely “[n]o a with that enforce claim grapple to They life. to want of should continuing end the than at rather autonomy patient approach commodating patient the of interests forecast to them a allow will incentives of amount they no as that clearly perfectly. as possible wishes their is state it to reason can, great have patients if even Thus, end-of-life of statement patient’s be. a ever accurate can and wishes clear how about standard. concerns unattainable an to physicians contexts, hold end-of-life would many it in demanding a possible hence for of be and benefits application even literal against not that may risks indicates instructions one weighing questions patient’s can these when How of is Each burdens? person? balance and another correct risks mean- likely it the Is regarding what be? certainty know it of Should talk court? to in ingful testifying to medical opposed in cer- involved as of is degree decision-making physician the the Is when different certainty? outcomes medical regarding of tainty degree reasonable a is What death? 156 aypyiin o nycnie tterrsosblt omk treatment make to responsibility their it consider only movement, not autonomy physicians patient the many into decades several being despite that, gests ae,btas hti sfnaetlyunmeetable. fundamentally is it How- “accurately that incompetent. also to but if able cases, want be would must they patients treatments ev that which state is lucidly” condition and crucial one work, to uh otettoewoelvswl ewrhlvn n o ra hs whose those treat not and living not. worth be will will lives lives whose those treat to ought xplain: eeto favnedrcie loehr doaigartr otebest the to return a advocating altogether, directives advance of rejection r hysgetti odto sntol ne ntevs aoiyof majority vast the in unmet only not is condition this suggest they er, Savulescu, overridden). wills living “perfect” Schneider, Id F al., et Sahm gri Schneider, & agerlin .at33. oecmettr aersoddt hs ifiute ymvn for moving by difficulties these to responded have commentators Some given desirable be not may directives advance to adherence strict Finally, adr hn si ocnueu rfrne o nuseial uueconfronted future unspecifiable an for treatments? preferences unpredictable with up maladies conjure much unidentifiable How to with choice. it well- to is lack fal- headlong gather, rush then, humans and we harder, We decisions, what guide human. ignore to and are preferences misunderstand considered They information, difficulty. gathering are decisions’ in illnesses ter the contemporary by about daunted decisions regularly contemporary making patients [E]ven supra supra supra 105 oe7,a 1(iigtefc hta aya 4 fptet r iln ohv even have to willing are patients of 54% as many as that fact the (citing 11 at 75, note oe7,a 60. at 77, note oe92. note nfc,mn hscasse od utta.Eiec sug- Evidence that. just do to seem physicians many fact, In supra 101 oe2,a 31. at 27, note F gri n cnie ru ht o iigwills living for that, argue Schneider and agerlin 104 102 n ru htphysicians that argue and F 103 gri n Schneider and agerlin L NHE AL ET YNCH . Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 n hte ofih et rscubt ti liaeyaqeto htex- spirituality, that question and a values ultimately encompassing is judgments, f it medical to beyond succumb far or tends death fight to whether and rvosyepesdisrcin eadn h rvso flife-sustaining of provision the regarding instructions expressed previously a be would standard interests best backward. paternalistic step a abandon- major of care, favor end-of-life in in far. entirely tools them too valuable ing goes uniformly are directives courts life advance and of that legislatures, agree end attorneys, the patients, physicians, at that preferences Given patient autonomous of rejection rne hudb goe hnte r nossetwt h physician’s the with inconsistent pref- are patient they that when believe assessment. also ignored but be patient, the should of erences interest best the in decisions C 109 108 107 106 hte vriigtedrciewudb nterbs interest best their in be that would fact directive the the deciding of overriding when leeway light whether significant have in to physicians even their directives—and prefer patients advance some of system current the antb ugdbsdo eia xets ln,btisedi nae de- area decisions; an value-based patient’s is a instead and but values patient’s alone, a expertise on medical pendent on based judged be cannot ml yais n esnlpredilections.” personal and dynamics, amily MLAC WITH OMPLIANCE F ain’ etitrss n htsc niqiywl eeal nov h rjcino te people’s other of projection the involve generally will inquiry an v such that and interests, best patient’s T n h nint asdb otne ramn,btasgicn ioiyddntwn hmt play to them want not did minority suffering significant and a pain but particularly treatment, account, continued instructions. into a by prior taken their caused be from indignity to deviate the factors to these and decisions members, wanted in suffering, family subjects account on or of into treatment majority pain taken of The be as impact These to financial such little.” the beliefs considerations treatment, “a religious new wanted their least a and they at of which possibility give the to would life, extent 19% of would quality the and surveyed leeway, in patients of give varied would lot” dialysis also 31% “a but of respondents directive, give 39% advance would their that 11% override leeway, found to leeway “complete” study no surrogates 1992 and a physicians their date, give of out admittedly Although Pollack, & Lens e.g. See, Action of Cause Living nHat aeDcsomkn:TeLmt fLegislation of Limits The Decisionmaking: Care Health in ietvswehrte r iln ohv hi hscasatcnrr otersae ntutosand, instructions stated their to circumstances. contrary what act advance under physicians their so, their in have if state to to willing encouraged be are should they patients whether that directives only rather but overridden, be should wishes le noteptet;Hackleman, patient); the onto alues ollowed? ii oa akea,Note, Hackleman, Jonas ricia role. hscnlso sbltrdb ueossuisfidn htpatients’ that finding studies numerous by bolstered is conclusion This oee,i em la htteporeyo ain’ eua fcare of refusal patient’s a of propriety the that clear seems it However, feto eia eiinmkn.Te ilb epce nywe hyaecnitn with consistent interests. best are best patient’s they patient’s little when the have the only of will views respected of wills physician’s be living the sense will wishes, They patient’s their decision-making. the medical on of on understanding effect based their decisions on than medical rather interests end-of-life make to obligated preferences patient respecting that believed w they when choice patient overrode often Physicians udntb nteptetsbs neet.I hscascniu obleeta hyare they that believe to continue physicians If interests. best patient’s the in be not ould See , swn egle al., et Sehgal Ashwini , egle al., et Sehgal 6 ....5,6 19)(onigotta hr sn osnu nhwt eemn a determine to how on consensus no is there that out (pointing (1992) 62 59, J.A.M.A. 267 106 supra A DV oe7,a 392. at 74, note ,64U.C ANCE supra D oe17 t5-1 hs eut ontncsaiysgetta patient that suggest necessarily not do results These 59-61. at 107, note IN V IRECTIVES oaino nIdvda’ ih oDe h edfraWrongful a for Need The Die: to Right Individual’s an of iolation o tityD ilssPtet atTerAvneDirectives Advance Their Want Patients Dialysis Do Strictly How .L.R supra EV . 35 375 (1996); 1357-58 1355, oe16 t1357-58. at 106, note ,53M 108 hs ept h aswith flaws the despite Thus, D .L.R e also see EV . 25 23(1994): 1283 1255, ai Orentlicher, David 109 —absolute 107 “[w]hen Tr 157 ends Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 tbe7%t 0 ftetm o pt w years, two to up for time the of 80% were to illness of 70% episodes hypothetical stable during care govern to expressed erences 114 113 112 111 110 life-threatening facing illness. actually when corre- made advance patients the in decisions stated the possibilities with preferences lated treatment patients’ closely and how illness documenting by of or scenarios hypothetical research presenting with by studies either subjects preferences These patient time. of over stability will the patient’s analyzed have the of expressions reliable remain care 158 mn hs h a iigwill. living and a treatment had accepted who than those rather among declined initially had who patients among evs ra es oiinta sspro ota edb n te party, other any by held that to superior is that position a least at or selves, preferences that stated suggest their they when harmed because disregarded. been liability are have living suits wrongful such bringing of patients purposes the for tant ujcsmd oeaeysal ramn hie htwr o matdb eethospitalization). recent by impacted not were that choices treatment stable moderately made subjects lnr Study plinary 2J M J. 22 dates. expiration have should directives advance that Tr suggested have commentators Some al., erences?, et Lee A. Melinda A e.g. See, See See hudntb bet idftr noptn evsbcuete r opeeydfeetpol with people different completely are they because selves incompetent interests. future different bind to able be not should bu ieSsann Treatments Life-Sustaining About o elhsae rtdb h ujc ob]wreta et.Ti euti ossetwt earlier with consistent is result treatment.”). This receive to death. choice the than than worse stable more be] is K treatment to forego to subject choice the the that by reports [rated Patrick states treatment.”); accept health to for preferences their than al., stable more et were treatment refuse to preferences l Patients Ill R ntal rfrigCRws8% u ny6%frptet ntal hoigDNR). choosing initially patients for 69% only but 85%, patients was for stability CPR preference preferring subjects, patient initially 1590 all among resuscitation for preferences of stability ih o qaewt hs fteuwl”.Ti oiin oee,cmltl eet h theoretical that the position rejects built. completely ethical-legal are however, directives position, an advance This for which unwell”). upon problem the foundation of serious those a with al., is equate not et it might Thompson cases, patient-centered.”); in many be incompetent interest in to to person’s threat arises purports a competent threat pose the they this interests, privilege If current patient’s forthrightly patients. incompetent or the over competent, certainty and when control had she interests with enidctdi epnet h yohtcl;Eaule al., had than et treatment Emanuel less hypothetical); or the same to the response either in receive indicated to been chose decisions treatment actual with preferences hiet eev ramn) .Mthl raye al., et Gready Treatment Life-Sustaining Mitchell for R. treatment); receive to choice al., response three et other the than Danis treatment of options”); declines among stability higher was there studied, we scenarios EP nehE oefl tal., et Rosenfeld E. enneth RCH ev .6 e tal., et Lee tvnLtrl n Sommerville, Ann & Luttrell Steven ie htptet r ntebs oiint aecocsfrthem- for choices make to position best the in are patients that Given rTopo tal., et Thompson or .I ,7 111 supra NTERN ED , 19)(Bcue[iigwls ihrcnuetepeetitrsso nicmeetpatient incompetent an of interests present the confuse either wills] [living (“Because (1991) id .Eaule al., et Emanuel L. Linda .E motnl,terslso hs nlsshv hw httepref- the that shown have analyses these of results the Importantly, 9J.C , 5 A 156 THICS oe9,a 1 “ocrac a eakbysal costeosrainlperiods observational the across stable remarkably was (“Concordance 516 at 94, note .M ,17P supra LIN ED RCH 0,12(96.Sm omnaoscam huh htpeetcmeetselves competent present that though, claim, commentators Some (1996). 102 100, ALLIATIVE e,e.g. See, . .E oe11 t20(oigta 5 ftesbet nti td oprn hypothetical comparing study this in subjects the of 75% that (noting 260 at 111, note 0 19) ihre al., et Fisher (1994); 209 .I THICS oPtet’TetetDcsosMthAvneSaeet fTerPref- Their of Statements Advance Match Decisions Treatment Patients’ Do NTERN supra elhPoesoas iw nAvneDrcie:AQaiaieInterdisci- Qualitative A Directives: Advance on Views Professionals’ Health , 5 (1998); 258 M F onA Robertson, A. John ,11J.C .M cosAscae ihCag nRssiainPeeec fSeriously of Preference Resuscitation in Change with Associated actors oe10(nigacoc ofrotetetwstiea tbea a as stable as twice was treatment forgo to choice a (finding 110 note ED . ED , 0,48(2003). 408 403, 2 A 120 dac ietvs tblt fPtet’TetetChoices Treatment Patients’ of Stability Directives: Advance . 58(96 fidn ht lhuhteewsa 0 two-month 80% an was there although that, (finding (1996) 1558 LIN .E e also see iiigRssb utiigRgt:ARsos oD.Ryan Dr. to Response A Rights: Curtailing by Risks Limiting NNALS THICS 113 supra I NTERN 3,39(02 “n2 f3 uget,participants’ judgments, 35 of 24 (“In (2002) 339 334, eodTogt nLvn Wills Living on Thoughts Second hs nig r atclryimpor- particularly are findings These mne tal., et Emanuel oe9;Mro ai tal., et Danis Marion 95; note supra .M culadPrevdSaiiyo Preferences of Stability Perceived and Actual ED oe12 t46(peeecso h well the of (“preferences 406 at 112, note . 6 (1994). 567 supra supra 112 oe10 t23(I h illness the (“In 213 at 110, note oe10(nigms study most (finding 110 note ihhge stability higher with tblt fChoices of Stability ,21H L NHE AL ET YNCH ASTINGS e,e.g. See, u see But , C 154 110 114 TR . , , . Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 ains eerhr on htol n ntredrcie a documented was directives three in a hospitalized one ill in only seriously example, that for For found directives researchers cases. advance patients, many of ev- effectiveness in that the meet conduct of cannot of study standard simply a they physicians suggests from idence demand might rule other any epnet h urn eia apatc system. malpractice in seen medical have current we the medicine defensive to of response sort rather the ministerially that in behave likely resulting would quite thoughtfully, liability than is of it fearful directives, overly from made deviate protection physicians to without decisions But, liability. reasonable living their wrongful of of goal proper the be cannot Instructions Stated from Deviation Permissible physician ambiguous. 2. are appropriate wishes of patient’s degree a a when recognizes cases in also contract discretion It clearly rule. to enough default is far the gone that have around concept who patients living those wrongful protect a to mechanism tailored propose the There- we through Alternatively, opaque. not liability. more abun- though strict are are enforced, of wishes wishes be whose must whose directives others those patient of of fore, benefit autonomy the the for sacrifice clear to dantly need no is there C 117 116 115 pnil o aln oipeettetetrfsl fwihh rsewas she or he which of refusals unaware. treatment reasonably implement to failing for sponsible htmgtidct emsil irgr faptetsdirective. patient’s a of disregard permissible a indicate might before that met be implemented. actually must and valid that as W acknowledged specificity patients be will hold and care we clarity of lest refusals of their leeway standard much impossible too afford an to to not not though, patient, careful, would the be patient of must the extension what not an clearly as but said act w patient to the what encouraged do be to to incentivized ought life of end and another avoided. for be must problem therefore one trades merely directives w advance of text the to MLAC WITH OMPLIANCE n.Dsrto—n h ilnns oeecs taebt seta.We essential. both it—are exercise to willingness the Discretion—and ant. and patients, of interests best the nor autonomy patient neither promote ould t hs osdrtosi id enwass h yeo circumstances of type the assess now we mind, in considerations these ith norc nomto rasmtos n odcso made). decision no and assumptions, or information incorrect h aaimtccs eei hntepyiini rsne iha noptn ain nan in patient window the incompetent eliminate an would saved. wishes be with patient’s could presented life the patient’s uncover is the to physician which time in the the taking when and is situation emergency here case paradigmatic The M 25 generally See Medicine? Defensive Practice Doctors Do V e.g. See, ltl apatc Environment Malpractice olatile ynwi hudb la htmcaia deec optetdirectives patient to adherence mechanical that clear be should it now By tams ai ee,i slkl nprpit ohl hsca re- physician a hold to inappropriate likely is it level, basic most a At hscasfcdwt ietvsrgrighwt ra ain tthe at patient a treat to how regarding directives with faced Physicians ED .L ,D . 4 20)(icsigcagdcrusacs neto orvk ietv,uncertainty, directive, a revoke to intention circumstances, changed (discussing (2006) 647 a i .Sudr tal., et Studdert M. vid .Wlmte al., et Willmot L. A DV ANCE 117 hscnlso spriual motn ie that given important particularly is conclusion This D IRECTIVES vriigAvneRfsl fLf-utiigMdclTreatment Medical Life-Sustaining of Refusals Advance Overriding , 9 ....20 20) ailP ese akMcClellan, Mark & Kessler P. Daniel (2005); 2609 J.A.M.A. 293 eesv eiieAogHg-ikSeils hscasi a in Physicians Specialist High-Risk Among Medicine Defensive , 1 ..E Q.J. 111 CON . 5 (1996). 353 115 omtcadherence Dogmatic 116 159 , Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 coscr settings. upon care basis across patients that no accompanying noted directives’ have also In advance have previously. impede physicians colleagues barriers these patient and inter-institutional Dexter chart, the existence. the its seen presuppose in have to directive which whom a of of none absence or physicians the attending few multiple staff, by seen house be and probably will patient hospital a tice, eaeugn,prasb eblydsusn h su ihaptetwhile patient a with issue the discussing verbally by perhaps intervention urgent, where physician point became the the to if prior case wishes patient’s the the be investigate to might time This had treatment. refuse ignorant to unreasonably desire patient’s is a a who of physician concealed a purposefully or who others provider from care preferences patient’s a to attach should liability living 122 121 120 119 118 record. medical permanent patient’s the in 160 freape ing tteptetsbdie niaiebaees necklaces, bracelets, on), indicative so bedside, and patient’s the for at system treatment signage effective example, life-sustaining (for an refusing directive directives implement advance with to existing patients failed an identifying or quickly have chart to patient’s failed the hospital in included a If have could known. reasonably made wishes patient’s been the if hospital or physician the absolve iiglaiiycudihbteegnyresponses, emergency inhibit could liability appropriate. living not is failures systemic to ascribable essentially is that norance cuaeyrcre nomto bu h ain’ ietvsadol 6 ftecat otie the contained charts the of 16% only and form). directives patient’s the about information recorded accurately ii ramn:TeNe o Portability for Need The Treatment: Limit Settings Care Acute to Ambulatory e l acrptet a rte dac directives). advance written had patients cancer ill rosrte hntecrlsns fidvda hscas sinn iblt oisiuin ol lead well”). would as institutions improvement to quality liability assigning system-wide physicians, to individual of carelessness the than rather errors W ailP Kesseler, P. Daniel e.g. See, Rodriguez, P P al., et Teno M. Joan (1997); ro n narne Suffering Unwarranted and Error htdcso pnteptetstase oaohrstig(o xml,nrighm ohospital to home nursing example, Lynn Joanne (for error. medical setting of definition another Medicine’s & of communicate to Institute to the transfer and within falls patient’s resuscitation, department) forgo emergency the to upon decision patient’s decision a that document to providers, health inform E rcdr sbudt nii mrec response.”). emergency inhibit to bound is procedure 5 A 154 c] otdcmnsta h ainsadsroae eott xs r o lcdi h medical the in placed not are exist to report surrogates al., and et patients Virmani J. the record.”); that documents most Act], xist.”); tetSl-eemnto c n h UPR Intervention SUPPORT the and Act Self-Determination atient u .Dxe tal., et Dexter R. aul THICS rigPpr1 20)(xliigta t h xetta eia rosaecue ysystematic by caused are errors medical that extent the “to that (explaining (2006) 16 Paper orking ahnE Goldstein, E. Nathan vntog hsapoc visoesae ocrsta wrongful that concerns overstated avoids approach this though Even RCH 7,18(03 “Evdnespot h eifta infiatitrisiuinlbarriers inter-institutional significant that belief the supports (“[E]vidence (2003) 178 173, e also see ,F e also see .I 121 gri Schneider, & agerlin supra NTERN htisiuinsol ehl responsible. held be should institution that T .Sa orsne al., et Morrison Sean R. .M oe2,a 1(Hvn ocnie l h aictoso mlyn life-sustaining a employing of ramifications the all consider to (“Having 21 at 29, note n tal., et eno h fet fteUS apatc ytm eiwo h miia Literature Empirical the of Review A System: Malpractice U.S. the of Effects The dac ietvsfrSrosyIlHsiaie ains fetvns ihthe with Effectiveness Patients: Hospitalized Ill Seriously for Directives Advance potnte o dac ietvst nuneAueMdclCare Medical Acute Influence to Directives Advance for Opportunities ED . 119 0,92(94 fidn ht2 f3 hscasddntko hi seriously their know not did physicians 38 of 27 that (finding (1994) 912 909, dac aePann o aa hoi lns:Aodn Commonplace Avoiding Illness: Chronic Fatal for Planning Care Advance eainhpo dac ietvst hsca-ain Communication Physician-Patient to Directives Advance of Relationship ne hs icmtne,ipsn iblt o ig- for liability imposing circumstances, these Under supra supra , 3 A 138 , oe9,a 1 “ept h SA[ain Self-Determination [Patient PSDA the (“Despite 311 at 96, note 7 ....48(95;See Miles, Steven (1995); 478 J.A.M.A. 274 oe2,a 5(nigta ny2%o h ain’ charts patient’s the of 26% only that (finding 35 at 27, note NNALS h ncesblt fAvneDrcie nTase from Transfer on Directives Advance of Inaccessibility The ,35J.A I NTERN M .M .G 118 ERIATR ED . nmdr-a eia prac- medical modern-day In 1,83(2003). 813 812, .S ,45J.A 120 OC ’ Y tde o necessarily not does it 122 4(97.I at alr to failure fact, In (1987). 74 M iial,wrongful Similarly, .G dacdDrcie to Directives Advanced ERIATR .S L OC NHE AL ET YNCH ’ ,14J.C Y 0,507 500, LIN . , . , Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 la h ain ol aemd ifrn hiei ett i rhrown her or his to left if choice different a made devices. seems have it was would when directive particularly patient coerced, advance the been the have clear to time appear the that at refusals or themselves made, for decisions such make to e oapyt h rsn iuto,a hnaptethsadrcierejecting directive a has patient a when as situation, present v the to apply to e optn rfmlaiighmefo esl ihaptetspeeecsas preferences patient’s chart. a patient’s the with in herself memorialized or himself familiarizing or competent C 127 126 125 124 123 rmtepeeecsepesdt htteptetwudhv wanted. have would patient the what the to by expressed extrapolate preferences to contemplated physician the the been from leaving document, have the in not addressed about been may or decision patient to a treatment surrounding understood end-of-life facts patient’s be of the could set particular that the directive comprehensive; than any given that not determination that has such ov logical circumstances, really a current of patient the on to interpretation the or inapplicable reasonable was instructions refusal a patient’s patient’s on the a based of treatment language provide the they if liability particular outcome. a of likely nature or its the mistake or a about on above intervention based described was sort or the informed of fully misunderstanding not was reason refusal has the physician that the believe if to justified patient’s be a may follow treatment to life-sustaining failure of will physician’s refusal standards a new then, straightforward and even However, appropriate professional, play. longer into care no come is health rule default other the or of application physician treating the by esr h eua ersnsatu xrieo h ain’ uooy and autonomy, patient’s the of not. does exercise it believe true to reason a has represents actually refusal the sure be pce oipeetrfsl rfee yptet h akdtecapacity the lacked who patients by proffered refusals implement to xpected ape tmyb h aeta h ain’ eua a ee intended never was refusal patient’s the that case the be may it xample, niainbtcnet oasreyta eursgnrlaetei,during anesthesia, general requires that surgery a to consents but entilation MLAC WITH OMPLIANCE rietedfutrl.A rvosydsusd aydrcie r less are directives many discussed, previously As rule. default the erride AND reports/past neednl ra yblcafimto ffihi h otx farlgoscongregation). religious patient blood a the of Choices? of by Unstated context refusal signed the al., was patient’s in et card a faith Emanuel that of L. of whether affirmation Linda relevant evidence symbolic be a only could as the it or card, independently if alert that medical noting a was and transfusions information, essential is refusal re In e.g., See, Ryan, J. Christopher the in behavior physician’s the supra with See problem main the indicates This ain rfrne bu euctto,btta nomtoa iceace hudb ruh othe to brought be should discrepancies informational attention). that patient’s but resuscitation, about preferences patient M E THICS EDICAL itk n orinaie hscasmyas prpitl avoid appropriately also may physicians aside, coercion and Mistake attainable reasonably are wishes stated patient’s the when words, other In B OEIA AND IOMEDICAL 5 7(1996); 97 95, 126 , AND oe 013adacmayn text. accompanying and 90-103 notes commissions/deciding L ooe 0 .d17,17 P.Spr t 95 saigta h otx fapatient’s a of context the that (stating 1985) Ct. Super. (Pa. 1278 1271, A.2d 502 Dorone, EGAL A ,32M I DV B etn orLf:A ruetAantCranAvneDirectives Advance Certain Against Argument An Life: Your Betting e also see SE IN SSUES EHAVIORAL ANCE dac ietvs a ains ttdTetetCocsB sdt Infer to Used Be Choices Treatment Stated Patients’ Can Directives: Advance ED .C T P D ARE REATMENT RESIDENT IRECTIVES R ESEARCH 9 (1994). 895 to ’ forego S D C ,D ECISIONS MISO O THE FOR OMMISSION 124 123 CDN TO ECIDING xpf(ugsigntta hscassol override should physicians that not (suggesting tx.pdf nsc otxs h hsca cannot physician the contexts, such In 125 4 (1983), 242 iial,pyiin hudntbe not should physicians Similarly, F OREGO S vial at available UYOF TUDY L IFE -S W erth USTAINING E THICAL ae sepandbelow. explained as case, http://www.bioethics.gov/ P T R BESIN OBLEMS REATMENT ,22J.M :E M 127 THICAL EDICINE 161 For ED , . Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 epne,i e rsne hth i o athrt i,btta eddnot did he that but die, wa to her want not did w he that presence, Ms. husband her her and in that responded, Mr. testified Werth Ms. both believed. previously in had they fear than serious sparked question This dying. W actually were blood want prior she would her she if whether of specifically aware asked was and issue products physician blood at the of account, refusal transfusion Werth’s Ms. the physician In necessitated her litigation. that the and in procedure a husband, the was to her This prior Werth, immediately death. Ms. the imminent of among recollections faced occurring different she several conversation the which refusal given in however, her conclusion, that situation convinced dubious a not was to court over the but carried well, was she when products far. too taken is circumstances changed of context the in rdcsmd yaptetwowsapatcn eoa’ ins u who but Witness Jehovah’s Islam. practicing to a converted was now who has patient blood a of refusal by as made such products questionable, applicability its render to changed since wa 133 132 131 130 129 128 account. this with consistent entirely was testimony Werth’s Mr. required. be will ventilation temporary which 162 intgtayfrhrase rmhmi em fwehrh etta fit that.” at if it that left felt I he And whether mind. his of change terms might in he him I bad And from that now.’ became answer right “‘Not further responded: any simply get she didn’t bad, that thought she looked whether really her asked Werth things Mr. when that testified concern She expressed risk. husband the her about but no, said Werth Ms. transfusion, a to consent extremely be can allowed be to The ought practice. interpretation in for challenging room much how w hsi so, is this n e ohv lo.Ised ewne h lentv ramn hthe that treatment alternative the wanted he Instead, blood. have to her ant nsa gn h sual oajs n srgdt al,btdetermining but fault, a to rigid is and adjust to unable is who agent an ants rhbcuete etteqeto niae httepoeuewsmore was procedure the that indicated question the felt they because erth hs eussaeulkl ohl ne e icmtne bu hc h ain a o informed not was patient al., the et which Willmot about foresee); circumstances not new did under or hold to unlikely are requests those Id. physician. the from reassurance ld. W supra See Strasser, e.g. See, oiyn hi dac ietv uigsrey rrtiigi nieywtotchange). without entirely it retaining or surgery, during surgery, directive during directive advance advance their their surgery suspending need modifying death: nonetheless before who possible as but comfortable care as comfort them only make to chosen have who patients to options three (offering inswt dac Directives Advance with tients sa s erth neddt pl otepeetstaina n on,bttig have things but point, one at situation present the to apply to intended t430. at t493.Hwvr r et etfidta eddnttikdahwsral ik ae on based risk, a really was death think not did he that testified Werth Mr. However, 429-30. at w ealta s et,aJhvhsWtes a eetdyrfsdblood refused repeatedly had Witness, Jehovah’s a Werth, Ms. that Recall h hsca etfidta hnseakdwehrteWrh would Werths the whether asked she when that testified physician The one no since essential, is scenarios these in involved interpretation The , r te eoa’ inse a eevdi mrec situations. emergency in received had Witnesses Jehovah’s other are 7 ..da 426. at N.W.2d 475 , lvln lncDprmn fBioethics, of Department Clinic Cleveland supra 130 oe 75 n copnigtext. accompanying and 47-50 notes eosrtn h notnt eutwe hsca discretion physician when result unfortunate the demonstrating oe4,a 09(ugsigapyiinmgtb bet goeaptetsrqet if requests patient’s a ignore to able be might physician a (suggesting 1009 at 43, note , at supra http://www.clevelandclinic.org/bioethics/patients/dnr 129 W erth oe16 t651. at 116, note aeofr necleteapeo why of example excellent an offers case hnYuNe oHv ugr;ALte oOrPa- Our to Letter A Surgery; Have to Need You When 128 r tmyb htterefusal the that be may it Or, 132 133 L NHE AL ET YNCH surgery.html 131 . Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 C 136 135 134 eae esnbyi pligtedfutrl eas odcso about physician decision the no where because made. situation rule been a default had be the risks treatment to the applying appear about in not question reasonably does simple behaved desired This a was procedure. on care a based that conclusion withdrawn of a been draw had to However, refusal physician situation. the and current for the sound to not apply was to it refusal her intended in really transfusion patient the to inapplicable were contin- itself, and procedure earlier the question. months to several up begun right had the ued of which all blood, the that of of concluding refusals risk testimony, was prior the physician’s court over the the concern accepted of Nonetheless, and expression procedure wrong. Werth’s Werth’s Mr. things by Mr. getting moved described for seemingly liable should herself physician held physician the been the suggests have alone that failure was fact This partic- “wishy-washy.” who the as unreasonable, patient response of and a light irresponsible from in was obtained ularly conscious been and have competent could both one when answer crete oetn otepeetcnet fi sitninta atr,te omfor preserved. room then be matters, must that determinations care intention of these is refusal it make her If to or context. physicians present his the want to not extend would to patient a that conclude reasonably ihu erta ewudb ujc olaiiyfrdmgs lrt fthe of clarity damages, for liability to notwithstanding.” subject transfuse to wishes then be expressed physician and patient’s would a consciousness, he lost allow that had fear would patient without the that after doctrine until of wait simply “kind the toward dangerously the Thus, perhaps e preferences. (though own nevertheless her physician hand to the at but according expecting) acted situation was court the the precisely language the of using context not the in made been apeo h nplcblt ruetbigtkntofr eas tveers it because far, too taken being argument inapplicability the of xample MLAC WITH OMPLIANCE e supra See apyn h eal ue a prpit.Fradsuso fti ae e arneK Altman, K. Lawrence Surgery see the case, Devised this Table of the discussion on a surgery For the Man providing appropriate. in was behavior rule) their that default appears the it (applying possible, still clearer was it a while elucidate preferences to of attempted statement have should previously, physicians surgery his the Although want situation. life-or-death not imminently and did unresponsive clearly He was ambiguous. DeBakey been Dr. have bu time, to Dr. that appear but wishes By surgery, His However, reevaluation. days. death. suggested that few near a physicians without to in passed situation His admitted the weeks reevaluate event. was to two wanted initial and nearly he yielded, the that them he after told he Eventually weeks though disabled. refused, three DeBakey severely than required age more the his dissecting undergoing hospital of a that the fear suffered man for DeBakey a hospital Dr. leave the example. to would an admission surgery refused such initially provide he may but aneurysm, DeBakey aortic Michael Dr. of case The Strasser, W lmte l aeoiethe categorize al. et illmot t eas elf omfrreauto,i a o la hthsrfslsol aeapidt an to applied have should refusal his that clear not was it reevaluation, for room left he because twsasltl prpit o h or oiqieit hte the whether into inquire to court the for appropriate absolutely was It con- and specific more a elicit to attempt no made physician the That vns,teecranyaeohrstain nwihapyiinmight physician a which in situations other are certainly there so, Even supra oe16 t657. at 116, note oe4,a 1009. at 43, note A DV ANCE W D erth IRECTIVES 134 aea n nwihn eiinaottetethdbe made. been had treatment about decision no which in one as case nta,i em htacnrt eiinhad decision concrete a that seems it Instead, , ..T N.Y. IMES , e.2,20,a A1. at 2006, 25, Dec. 135 W erth aepeet good a presents case 136 ttevery the At 163 The Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 137 than rather hypothetical was refused was that care was the real. patient for the need when the expressed or patient’s was healthy a it ignore because to solely impunity permitted with be directive not should physician a however, minimum, 164 icmtne, n hsotncos obso h nocr fsaue with statutes those of only enforcers but the those bestow all to specify choose to often thus language and “(1) find circumstances,” (3) impossibly and apply, out to might carry it struggle which to legislatures asked as is Just party w another. one of when associated agency, instructions problem of basic the instance a every is nearly This necessary. with remain always will directives and Reasonableness Directives: Patient Interpreting for Recklessness Standards 3. possible. extent the to interpretation for minimize need and the surrogates, or physicians with whether charged wishes, those patient help implementing will steps about these Taking guesses want. would good patients make their will what preferences physicians refusal that treatment hoping their than express rather to accordingly, they them language encourage the and in in use, ambiguities resulting might potential to to circumstances autonomy them changed patient alert of preferences, of possibility changed protective they most as the be clear about likely as patients will be educate it to fact, them In encouraging ability can. while imperfect possibly desires, patients’ future accept their must predict we to paternalism, medical of standard to exceptions the allow rule. would directive the patient’s swallow a invalidate to them allow to r u xcl htrl hywn,()iaiealtecrusacsin circumstances the all imagine (2) want, they rule what exactly out ork ftesaiiyo ain eua preferences). refusal patient of stability the of u tlatoecmettrwudecuaeeatyta.Ryan, that. exactly encourage would commentator one least at But ls,esnilyt hs h a culyeprecdtesaeadtecr hynwepesa express now refusals treatment they valid care of the Sommerville, expression & the Luttrell and for state threshold the attainable rarely experienced w His actually avoid. had to available desire who all repeated those with to decision their essentially reconsider class, to chance perhaps a others, and for but net die, safety to a allowed has be information.” provide rather scenario will would imagined as it they hardship, the majority, that considerable that preference to the lead their now will state again this assess again doubt solicited must properly no be some they to “[f]or might that able preferences recognizes resuscitated and Ryan be treatment occurred. ill should their actually drafters is so healthy-then-sick patient that rule claims a a he once as Thus, written preferences. treatment those directives her only advance or abolish accepting his to preferences healthy, ought treatment we the that their argues by believe Ryan mistakenly written a circumstance, but and void decisions sick, time to treatment over become about stable sufficient they minds remain circumstances once their will change in well patients were change many they that essential fact when an the made of is light sick In care. to of healthy refusal prior from change very the that udpaeaptetsaiiyt lnfrteftr ngaeprl o rtqeo i oiin see position, his of critique a For peril. grave in future the for plan to ability patient’s a place ould 137 notntl,hwvr ynsagmn ol ii n-flf reo nyt eynarrow very a to only freedom end-of-life limit would argument Ryan’s however, Unfortunately, eetees nalbttecers ae,sm nepeaino patient of interpretation some cases, clearest the but all in Nevertheless, interests best a to preferable as autonomy patient recognize we as long So hs hne icmtne ol epeeti omn ae that cases many so in present be would circumstances changed These supra oe114; note e losupra also see oe 1-3adacmayn et(discussion text accompanying and 110-13 notes supra oe15 t9-8 suggests 95-98, at 125, note L NHE AL ET YNCH . Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 ti neegnycnet nwihata osn antb obtained be cannot as consent implied, actual be which to in contexts ought emergency care in to is consent it patient’s for the disregard then intentional wishes, or knowing patient’s exhibit the not did and reckless not were they owihwogu iiglaiiysol attach. should liability living violation unconsented wrongful is an which there care behavior, to of intentional the imposition or when the reckless rendering hand, of consent, other result implied a no the as On made damages. is treat living should to wrongful providers decision care for health liable the held and be consent, not withhold to meant patient the if oediscretion, some C 142 141 140 139 138 etwterpyiin ihsmlrflexibility. similar with physicians their bestow utiigcr rhv netoal irgre ain’ la refusal. clear patient’s a disregarded intentionally life- have or the or life-saving whether care providing ask in sustaining layered recklessly should behaved and court have providers nuanced the care First, more health liability. a living wrongful implement to to approach and standard negligence simple patient of reading avoid. mechanical to of hoping sort are discre- the we exercising precisely that in directives in confident result feel could to This need not tion. they will security phrase, the ambiguous an physicians room itself give allowing is simply which and interpretation,” passable, “reasonable often are for questions these her of or sides Arguments his ambiguous? both for truly on directive mean patient’s really the Was patient here? the apply Did to void? refusal suf- refusal circumstances prior significant in a change fact render the to of Was ficient wishes? mistake patient’s the particular change a to Was enough appropriate. is behavior pretive a ie la ntutosta nte uei ob olwd eshould We followed. be patient to the is unless rule life another preserving that of instructions favor in clear rule given default has the apply to ought MLAC WITH OMPLIANCE motnl,ti prahrtistebteyframework. battery the retains approach this Importantly, al., statement.”). relative et oral a Dietz or or patient Hunter document a when written Laura liable by held either be should care they refused But unclear. clearly is refusal the where cases in treatment profession. medical than avoid the to better of need always See mistrust the is surrogate of any life because a worsening continued rather and of but because judgment, into not that difficult feeding is and or subjective This leeway. consent enormously of an explicit is sort their which that death, without allow to patients physician great some a too for about likely are concerns death groups, choose minority to certain allowed of underlying to being pressures mistreatment its financial historical on that interest, and based of prefer care, conflicts instead likely discretion, minimal and would of give directive abuse who patient’s for die potential the to the of given However, patients content reasons. allowing exact and the saved of be regardless to outcome, want would likely who patients T F n te Healers Other and cncly hsro o iceinsol eal og ihrwy loigpyiin osv their save to physicians allowing way, either go to able be should discretion for room this echnically, Schneider, & agerlin Rodriguez, hs tmyb ett lo omfrpyiindsrto eoda beyond discretion physician for room allow to best be may it Thus, inter- of sort what to as arguments be sometimes may there However, supra A § 138 DV 6 (2006). 167 oe2,a 1([]yiin hudntb edlal o rvdn life-sustaining providing for liable held be not should (“[P]hysicians 11 at 29, note supra ehv enta ti ntebs neeto ainsto patients of interest best the in is it that seen have we ANCE mrec prto rTreatment or Operation Emergency oe2,a 34-35. at 27, note D IRECTIVES 139 142 ,61A nohrwrs physicians words, other In M .J UR .2 D hscas Surgeons, Physicians, 141 even 140 165 If Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 opoiecr nacrac ihtedrcieadrdcdhscr levels. care his reduced and directive agreed the hospital with The accordance directive. medical in earlier care he his provide point notified and to family note which Klavan’s his Dr. by of state, hospital later, vegetative the persistent days a Three to him. deteriorated were discovered, had measures resuscitate being extreme successfully where Upon room, to resuscitated. emergency be taken the to to a taken wish left was not and Klavan did Dr. suicide he attempted that Klavan extraordinary stating Dr. debili- refused later, note that completely years directive Four being advance measures. about an medical concerned executed and was father himself, Klavan his tated Dr. very witnessing the stroke, After to Klavan. a application Marshall suffer its Dr. consider of living, experience wrongful unfortunate for recovery of sibility liability altogether. strict liability either living to wrongful preferable of is rejection approach a of this will protection or least, drafted, similar very with the flexibly compatible At more extent other. greatest the are the directives to protected whose be patients each as well as clearly, 143 that than agent. relationship unthinking physician-patient and the master of model a efficient of resulting more ultimately contingency, far possible every a of in think to need the as right. well things as get their to desire on the depend and can input, deviation caring patients such expertise, wishes, for when end-of-life physicians instructions true stated patient’s If from the over-deterrence. deviate to advances to lead could free which are liability, unneces- physicians of imposing fear without and choose uncertainty would sary patient that however, believes contrary, physician the the To death. to preferable a always is the rejected life have patient’s who that patients a assumption protect implementing to ineffective be with may charged it that providers or directives, care health other and cians enough. instructions clear patient’s not the were care that withhold determination to faith good physician’s a respect 166 ekesessadr ist rsretepyiinsaiiyt owhat do to ability physician’s the preserve to aims standard recklessness dac aePann:Oecmn mtoa,Cgiie n kl Barriers Skill and important Cognitive, the Emotional, of Overcoming lack Planning: than issues. Care sensitive problem Advance these reason a discuss a of adequately not less and is be introduce e.g. may it to time system; need of patients. care is physicians lack health their skills who Further, American with communication care. physician, the wishes patient practice. reform end-of-life the poor medical to discuss accept of modern reason to to of another part fail demands simply the physicians the is many of on this result so However, time a why as of explains pressured investment perhaps time This significant extremely be a already require to likely may this course, Of mrv elhcr eieyna h n flife). will of changes, end system diminish the health and near larger delivery address with care to combined health barriers, mechanisms improve skill introducing and that cognitive, planning suggesting emotional, care but advance physicians’ meaningful patients, initiate their to fail with routinely discussions physicians that (explaining (2004) 818 817, , To hswl lmnt uho h erta n’ ietv ssti stone, in set is directive one’s that fear the of much eliminate will This physi- to leeway much too offers standard a such though as seem may It oehS enr&See .Cole, A. Steven & Weiner S. Joseph eosrt htti tnadwl o fetvl eto h pos- the destroy effectively not will standard this that demonstrate he rnilst mrv lnca omncto for Communication Clinician Improve to Principles Three 143 P tet h aesae hi wishes their stated have who atients ,7J. P L ALLIATIVE NHE AL ET YNCH M See, ED . . Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 ootaeu htwogu iiglaiiywudlkl eappropriate. be likely would liability living wrongful that outrageous so case difficult a this make it w attempt and who suicide those of of competence nature questionable that drastic the family, The instructions patient’s disregarded. clear the when intentionally with by avoid nonetheless faced verified they circumstances, were to regardless present physicians hoped care, the his had to extraordinary Thus, applicable there. he refuse got that to he condition how desire of the his it precisely expressed point, previously in that he was At He attempt. it. suicide to a from Klavan Dr. wa saving longer behavior. no their were for liability from free be should physicians his and wishes, wa eucttv esrs n r lvnte ufrdastroke. a suffered then Klavan Dr. extraordinary and used measures, again resuscitative hospital the however, worsened, condition his When C 147 146 145 144 to Winter. provided Edward care life-sustaining and Young, and Brenda life-saving Werth, the Cindy of said be could same The ihscudvr elhv endifferent. been autonomous have his despair, well extreme of very state despite could a questionable; in wishes was certainly he were while written stated was as wishes note care his the of time the rejection at note’s refuse the to by abide they if to even w refusal but him, room’s resuscitate emergency to the initially tried were, they when note suicide his of MLAC WITH OMPLIANCE rh fdbt,bti eeteesapasta h eodrssiainwas resuscitation second the that appears nevertheless it but debate, of orthy udlkl aebe prpit.D.Kaa’ etlsaeadcompetency and state mental Klavan’s Dr. appropriate. been have likely ould boueyicmail.Teeoe euetecs setal sahpteia ae nteversion the on based hypothetical court. a the as by essentially offered in case events existing the of as whether use him we about describes Therefore, confusion variously incompatible. significant absolutely record is court there the However, because clear, 1999). a were Pa, truly (E.D. wishes 439-40 Klavan’s 436, Dr. 2d Supp. F. 60 hssaeet rhritnin,ti a h ptm facerptetdrcie oehls,when Nonetheless, directive. patient clear executed a Duran of Ms. epitome the which was under this circumstances intentions, the her coercion, or about statement, question this no was there Because of stated transfusion It the transplant. the without of procedure anticipation in the who specifically transplant perform attorney part: liver relevant of to a in power of willingness durable need a its executed in She for patient blood. Witness center Jehovah’s transplant a Duran, her Maria chose of jurisdictional case on the court state consider to Also moved was case the as grounds. issue, an this not reached never was court directive the Unfortunately, advance] patient’s [a Savulescu, that afresh.” believe situation to reasons are e there “if that argues Savulescu in rendered opinion the from derived are case this of facts The s s peso fteptetsatnm,te ti prpit odseadsc ietv n sesthe assess and directive a such disregard to appropriate is it then autonomy, patient’s the of xpression essetvgttv tt n scryn ncnestoswt eia tf,dsrpin htare that descriptions staff, medical with conversations on carrying as and state vegetative persistent o ekes o i trflc nitninldseado r lvnsclear Klavan’s Dr. of disregard intentional an reflect it did nor reckless, not la hth ol o eanhspirqaiyo ieo ntigclose anything or life of quality prior his regain not would he that clear oee,we h hscaseggdi eodrssiain they resuscitation, second a in engaged physicians the when However, ti nla hte hs h rgnlyfudD.Kaa eeaware were Klavan Dr. found originally who those whether unclear is It iareetsol nn a ecntuda raigabgiyo ob bu h strength the about doubt or wishes. herein ambiguity my expressed creating of as wishes substance construed my or be friends with way or no and relatives in Family, beliefs should it. religious want disagreement not my do with I health, disagree or may life my preserve will therapy transfusion condition. medical my what matter I bouey nqioal,adrsltl refuse resolutely and unequivocally, absolutely, A DV ANCE supra D IRECTIVES oe7,a 211. at 77, note ... vni elhcr providers health-care if Even ... lo ne n n l icmtne,no circumstances, all and any under blood 145 hs h nta resuscitation initial the Thus, 147 lvnv rzrCetrMd Ctr. Med. Crozer-Chester v. Klavan ... eiv htol blood only that believe 144 ... .A ny such 167 146 , Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 raigaraoal erci ohncsayadpossible. and necessary dam- both required; living is not wrongful metric is of reasonable perfection a measurement considerations, creating perfect countervailing the no given is but there ages, that right be may 148 state. balanced more a to re- them of bringing capable and in be incentives resulting will those directives crafting lawsuits advance only of preferences, violations for than stated penalties rather their significant patients of save cost-benefit regardless to current die, incentive much the them widespread created the let be have in to resulted lawsuits has as prove that Just not ratio all. would at compromise them a allowing wrongful of however, the life, with associated of problems prolongation the prevent when and woefully resolve right be would to legal damages inadequate some nominal Because of injury. proven violation no the been has recognize there to awarded sums trivial compensation. are of level appropriate an there determine argue to critics way many reasonable of care, result of no refusal desired is patient’s the the the was disregard of fact to all in decision and the for while foreseeable, liable However, certainly held action. was is tortious life she prolonged the or of he consequences tort, foreseeable a reasonably committed has plight. defendant same a the when to patients future subjecting save thus to case, incentive every countervailing are in the patient balance physicians the to and incentive uncompensated real any left without for are left who remedy harms patients Consequently, appropriate serious courts. the experienced an perplexed have crafting has context of this task in harm of The the question intentional picture. difficult or the more the reckless enters warranted, deemed to damages is been liability failure living physician’s has wrongful directive a that clear once such However, patient’s step. a important by an abide is attach to ought Living Wrongful for Damages Remedy: The C. 168 erqie falpatients. all of required be the that sort eadfrteptetscniino eie.Hsoyetbihsta h ero iblt ok,and works, liability of fear the that without establishes life History prolonging desires. on or insists often condition w too patient’s that the the culture provide for medical may regard a Lawsuits change change. to needed for pressure mechanisms effective ‘incentive’ the represent treatment life-sustaining Rodriguez, should liability living wrongful which to case paradigmatic a represent would it own, attach. her behaved or court overridden his professional the care on but health a order, it Had overridden. court’s be the the to The directive Duran’s transplant, following provided. Ms. allowing hospital simply the in the was improperly after which it necessary transfusion, since the became appropriately, authorized behaved that then hospital transfusion Duran Mr. blood request. for a his guardian to granted limited court consenting emergency Duran’s of Ms. purpose appointed be sole to the Court Orphans’ the petitioned Duran Mr. rsquickly.”). orks sacmrms,te a ewligt lo oia aae,which damages, nominal allow to willing be may they compromise, a As Typically, problems. both of resolution the to essential are Damages liability living wrongful which in situations of sorts the Recognizing e nre In See supra W erth ua,79A2 9 P.Spr t 01.As,M.Drnsdrciewslkl the likely was directive Duran’s Ms. Also, 2001). Ct. Super. (Pa. 497 A.2d 769 Duran, oe2,a 3(Lwut gis hscasadpoieswoamnse unwanted administer who providers and physicians against (“Lawsuits 63 at 29, note or a okn o,bti sntcerta hslvlo pcfiiyi htogtto ought what is specificity of level this that clear not is it but for, looking was court L NHE AL ET YNCH 148 Critics . Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 h ol eyrcvr o iigepne n l u h otdirect most principles the basic but some misapplying all law. or and tort ignoring of expenses be to living seem for expenses medical those recovery but commentators, deny many she and would courts or who the he frustrated have die, to seems to what allowed is been had patient the w is if analysis here; Cause-in-fact expenses. straightforward medical quite extraordinary and living of costs v Damages Economic 1. C 152 151 150 149 as case Winter’s Mr. to apply should “eggshell” contexts to well. harms traditional for more liable tortfeasors in hold plaintiffs courts which by pre- reasoning and the life Winter’s Mr. caused acts e defendant’s the extent the to However, ti o urgost li httedfnat h goe i euasof refusals his ignored who defendants the that claim to stroke, outrageous his not to contributed is have it could that problems medical pre-existing from esrms aehsvci sh nshim. finds well-established he a as victim is his it take for must was feasor foreseen, occurred have actually that may harm defendant e the the if even than liable greater be to ought defendant the eedn’ c frssiain n httesrk culycttecausal the expenses. medical cut later actually to resuscitation stroke the the link the otherwise by that would caused that and not chain resuscitation, was resuscitation, of burns unwanted or act the defendant’s CPR after during days which few broken stroke, Winter’s a Mr. ribs that occurred as held court such The defibrillation. things during willing for sustained was only and recovery resuscitation, allow unwanted patient’s to the immedi- from stemming directly those and beyond ately expenses medical for recovery denied court itn eia odto ocniu n hscniinldt i stroke, his to led condition this and continue to condition medical xisting cpint h oeeaiiyrqieeto rxmt as httetort- the that cause proximate of requirement foreseeability the to xception reyo xessta ol o aeohrieacud nldn general including accrued, otherwise have not would that expenses of ariety MLAC WITH OMPLIANCE udnthv nurdayo hs euir xess rxmt causation Proximate expenses. pecuniary these of any incurred have not ould ihriigamnal rpyial adcpe hl onbtntdsbe—sarsl fthe of result a disabled—as not born—but child associated costs) handicapped rearing physically child mistake. or normal physician’s parents mentally beyond allowing going a sterilization, negligent (those raising of expenses with cases extraordinary in the reached for have recover courts to some results the mirrors This conduct, tortious generally defendant’s See a from other resulting (or condition harms mental physical ev or for physical recover pre-existing may a with characteristic) plaintiff relevant a rule, plaintiff’ “eggshell the Under Anderson Supra hs fadfnatpse litf nawyta ol o aecue n eiu nuyt a to injuries. injury extensive serious more those any for caused broken liable are have held which not be of many will would bones defendant thin that the extremely have way push, to the a happens by so in just plaintiff plaintiff that a but person, pushes typical defendant a if Thus, 5 o d82(l.1984). (Fla. 822 2d So. 450 nwe h am r o rae antd rdfeettp hnmgtraoal eexpected.” be reasonably might than type different or magnitude greater a “of are harms the when en 151 ealtecs fEwr itr icse previously, discussed Winter, Edward of case the Recall a with faced is she or he will, her or his against saved is patient a When h otosato euctto e nmto hi feet o which for events of chain a motion in set resuscitation of act tortious The oe 76 n copnigtext. accompanying and 57-65 notes I,61NE2 t225. at N.E.2d 671 III, R ESTATEMENT A e,e.g. See, DV ANCE (T , HIRD mro .Mgnat,69A2 0 RI 97;Fsolsv Ramey, v. Fassoulas 1997); (R.I. 409 A.2d 689 Magendantz, v. Emerson D IRECTIVES ) OF T ORTS § 1(05;R (2005); 31 152 ESTATEMENT eas r itrsuffered Winter Mr. Because (S ECOND ) OF 149 T ORTS nwihthe which in § 6 (1965). 461 169 150 Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 eto suits, apply. not ception does principle mitigation the however, issue, at one the than h niecs friiga nlne hl ona euto h defendant’s the of result a of as born recovery child allow unplanned to an raising willing of been cost have entire the courts These claims analyzing damages. when economic parent for a becoming with associated benefits emotional laintiff e 156 155 154 153 rationale in the benefit the precisely by is double provided This rule a bills. benefits the the represent pay behind not not will do they because existence context, of this joys simple the However, unless incurs, he expenses medical bu future all for liable a held be should care 170 o otk hs usit con hnassigeooi damages. economic assessing when account into sums those take to not moment. the e at focus our economic are purely which the life offset continued to from used resulting be harms were appropriately that cannot interests economic thus the and to harmed, relate not unwanted do following windfall. benefits is intangible extraordinary life these current care, an patient’s wrongful the offer the good relatively how to of matter point a appears no the However, living that from is expenses since living who onward, all one from resuscitation freed particularly be patient, to may life, a Some good for difficult. problematic more it somewhat becomes find analysis the however, living, iiaino damages.” of mitigation harmed was that plaintiff care for pay to families their will. of those their or against savings necessary life made their should deplete Winter to Mr. to like up have Patients not unreasonable, mistakes. even physician that recklessness) given (and of particularly reasonable point harm, the for the provided avoid is to leeway sought significant actively who patient the on pan:“Whntedfnatstriu odc a asdhr othep- to harm caused has conduct tortious defendant’s the “[W]hen xplains: ape rcncniu oer oeicm,i a nedb windfall a be indeed may it income, some earn to continue can or xample, uesdn as rastecua hi.I a emahrhoutcome, harsh a seem may It chain. causal the breaks cause superseding ta ihst eev o-elgn trlzto n brinsrie rt aeifre eiin for decisions informed make to pregnancy. or a terminate services the to including abortion whether freedom, and reproductive about to themselves sterilization rights non-negligent their receive of violation to for rights recovery seek parents suits, these In Id. R e.g. See, o iiihdb hwn htaohritrs a enbenefited.”). been has interest another that showing by diminished not tion 1(icsigtefc htWne eltdhs$0,0 iesvns hc eitne olaeto leave to intended bills). he medical which post-resuscitation savings, for life paying $100,000 death, his his upon depleted family Winter his that fact the (discussing A1 ESTATEMENT s epai added); (emphasis s5&6 pligti ue oecut aigwogu rgac n con- and pregnancy wrongful facing courts some rule, this Applying fteptetotisrylisfrwiigabo bu h rel for ordeal, the about book a writing for royalties obtains patient the If W ewe h ate twudb vnmr eeet moetecosts the impose to severe more even be would it parties the between ... t eadt lisfrgnrlepne soitdwt continued with associated expenses general for claims to regard ith ,D n ns on a ofre pca benefit special a conferred has doing so in and a (1979). i Margolick, vid (S 156 ECOND lhuhi h ioiy aergtystaietepotential the aside set rightly have minority, the in although ) e also see OF T ORTS P tetsLwutSy aigLf undIt Ruined Life Saving Says Lawsuit atient’s 155 , ,B omn “aae eutn rma naino n neetare interest one of invasion an from resulting (“Damages b Comment h au ftebnfi ofre scniee in considered is conferred benefit the of value the hntebnfi scnerdt nitrs other interest an to conferred is benefit the When NFTTO ENEFIT 153 P LAINTIFF ettmn Scn)o Torts, of (Second) Restatement R SLIGFROM ESULTING D EFENDANT , ..T N.Y. oteitrs fthe of interest the to IMES ’ S T , ORT a.1,19,at 1990, 18, Mar. L NHE AL ET YNCH § 2 illustra- 920 which 154 . Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 h otesrsol ehl epnil o h niels httetortfeasor the that loss entire the and for procedure, the caused. responsible faulty held a simple: by be is breached should was tortfeasor damages that the care extensive of duty these a expenses. owed awarding extraordinary were parents in other reasoning and medical courts’ to The limited just not negligence, C 158 157 nyfrmdclepne,te ol aeeeyicniet vi rigon erring avoid to incentive every liable have held would were they physicians expenses, objec- If medical an saved. for have if only to life likely of are quality who physical those excellent by tively even made from care discouraged of appropriately refusals are violating physicians which in situation a create will The well. as life. here continued apply be for to recovery not ought involve elsewhere should cases apply and these that causation rules that ex- fact proximate extensive the on have by Courts based blinded refuse. lines expenses to pecuniary drawing right the in the of perience of all violation care, for the recover of from to refusal resulting health permitted patient’s be a a should when violates patient principles, intentionally that tort or standard recklessly applying provider Thus, care right. an that drafting respect by to refuse otherwise not to would right that expenses e a living of had accrual the she and directive, or advance he that treatment life-sustaining iti utoeo ayfrsebecneune ftepyiinsfailure physician’s the of consequences foreseeable many of one just is xist MLAC WITH OMPLIANCE oss ntegonsta h cnmcbnfiso aiga natdcidwr insignificant. were costs. rearing child child foreseeable unwanted of recovery an g permit to having unwilling are of economic torts pregnancy-related benefits mitigate dressing to economic refused the also that and Marciniak grounds losses, the economic on against benefits losses, emotional offset to refused ona euto hsca’ elgneo raho otato Warranty or Contract of Breach or Negligence Physician’s of Result a as Born eemndta aet a o eoe o h yia ot fraigadeuaiga unwanted an educating and 1982)): rearing of costs typical Emerson the for recover not child). may parents that determined 3 Fo ocue htapyn mtoa eet oeooi osfist pl iia eet osimilar to benefits similar apply to specifically fails Court loss Supreme economic Mexico the New as to losses, The benefits child). emotional all healthy applying of a that recovery having concluded of allow benefits to eco- the emotional principles either or offsetting tort without nomic sterilization, traditional negligent applying from resulting (both damages foreseeable 1990) reasonably (Wis. to 243 birth N.W.2d giving 450 of borg, expectation reasonable a has sterilization seeking patient a the that notice structive 414; enerally ialdcid h niecs friigsc hl hudb recoverable. be should child a such raising of cost entire the child, disabled 19)(nlzn h aywogu rgac,cneto,adbrhcssi hc orshave courts which in cases birth and conception, pregnancy, wrongful many the (analyzing (1991) re loigrcvr flvn xessi diint eia expenses medical to addition in expenses living of recovery Allowing avoid to sought actively patient the actions, living wrongful in Similarly, necpint otlaiiywe h mato uha xeto ol marteexercise the impair would exception an such right. of protected impact support constitutionally the cannot a policy when public of assume liability But to . tort tortfeasor . . to a caused. exception of proximately to duty has an us he normal that ask the damages to the defendants policy, all The for public liability care. in to grounded medical child exception, negligent unplanned an an from out rearing results carve of birth expenses child’s the for the recover when to parents majority allow to is rule better [T]he e also see ape ndca the dicta, in xample, 158 , usl .Dnlsn Annotation, Donaldson, G. Russell 8 .da 1 Buce,J,dsetn)(iigOh .Brel,45A2 8,85(Conn. 885 883, A.2d 445 Borrelli, v. Ochs (citing dissenting) J., (Bourcier, 418 at A.2d 689 , 5 ..da 4-9 oee,sc eut r eaieyucmo;ms orsad- courts most uncommon; relatively are results such However, 248-49. at N.W.2d 450 Restatement oeaeMdclCne .Mne,85P2 0 NM 91;Mriikv Lund- v. Marciniak 1991); (N.M. 603 P.2d 805 Mendez, v. Center Medical Lovelace A DV ANCE requires. Emerson D IRECTIVES Lovelace or ttdta hnapyiini lcdo culo con- or actual on placed is physician a when that stated court , eoeaiiyo oto asn oml elh Child Healthy Normal, Raising of Cost of Recoverability 0 .da 1.Smlry h icni urm Court Supreme Wisconsin the Similarly, 613. at P.2d 805 ,8 Emerson 9 ... 4 A.L.R., , 8 .dat A.2d 689 TH 632, 171 See 157 § Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 160 of refusal one’s having with 159 associated harm the of part certainly actions tort are in and recoverable generally are damages nonpecuniary Nonetheless, directives, advance recognizing of point worth be the will is lives bu This of patients. sorts their which for regardless decide so living cannot do Physicians to right reasons. of the their fear patients of the competent beyond given grounds have many we only on outcomes; is care bad it harmed; refuse there Patients were even factors. and interests many magnitude, patient’s of of question one a the whether to only of relevant is question it health rather, the physical to be and relevant differently, cannot not lives that is their why outcome value good precisely subjectively a proves Individuals have case so. to Werth’s likely is Cindy who desirable, patient appears a save to discretion the because patients these for expenses medical recover. extraordinary to no be would there because How- outcome. bad a a have likely would who patients ev those for life of side the 172 eoeyfrwogu iigrssecuaigpyiin od utthat. just do to physicians encouraging risks living wrongful for recovery enaoddhdhso e ihsbe olwd h aae a esteep, be may damages The followed. been as bu wishes in her find or engage his only had to avoided been must courts court for the need intervention af Instead, the medical analyses. avoiding the quality-of-life of from controversial advantage ensues additional that life the of has quality the of irrespective rnfllvn omnaoshv enwligt urne nti point. this on surrender to many willing why been explains have this commentators Perhaps living suffering. wrongful and pain for damages with dealing Damages Non-economic 2. appropriately. behave to wishes end-of-life odotoe eadeso hte h ain a eue aeo not, or care refused had patient the whether of regardless outcome, good r hscaswudas aeeeyicniet aetoelkl ohave to likely those save to incentive every have also would physicians er, t t eal orcvri atr o h oto hi natdmdclcr.Tu,hsagmn against argument his Thus, care. medical unwanted claim their the of against cost not the is for living battery wrongful in recover to able be iig as fAto hnDcosFi oHnrPtet’AvneDirectives? Advance Patients’ Honor to Fail Doctors When Action of Cause Living” .R L. is disability a with life whether decide “to courts the require w would it because rejects he which damages, physician’s the of outcome appropriate. the was having behavior physician’s avoid the to whether important Fo to so as judgment is our it cloud why interventions explains also discussion This ramn ol et lo nyseildmgsfrtemdclepne n xrodnr costs extraordinary and expenses medical the for living.”). medical continued damages refuse plaintiff’s to special the right only to the allow incident of violation to the be for damages would general treatment award to inability or reluctance courts’ culmte httepteti aigcnrt xessta ol have would that expenses concrete facing is patient the that matter actual rhlvn. dmA Milani, A. Adam living.” orth loigptet h emt aego elhotoe oeconomic no outcomes health good have to seem who patients allowing htwl ipyecuaetoecagdwt mlmnigapatient’s a implementing with charged those encourage simply will that re lhuhi a ema huhti netv tutr estig right, things gets structure incentive this though as seem may it Although oevr loigepniepcnaydmgsfrwogu living wrongful for damages pecuniary expansive allowing Moreover, notntl,dfcl ult flf suscno eaoddwhen avoided be cannot issues life of quality difficult Unfortunately, EV ape iaimksa ruetaantwogu iig u ugssta ainsshould patients that suggests but living, wrongful against argument an makes Milani xample, . 4,28(1997); 228 149, e also see etrOfDa hnDsbe? hudCut eonz “Wrongful a Recognize Courts Should Disabled?: Than Dead Off Better Donahue, e se per supra ,b trte gis h eoeyo anadsuffering and pain of recovery the against rather ut oe6,a 1 “ osbeslto omtgt the mitigate to solution possible (“A 413 at 65, note ,54W L NHE AL ET YNCH ASH .&L 159 160 EE . Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 hudntalworinrnet raetelglfito htteewsno was there that fiction legal the we and create values to relative ignorance their know our do allow we not making, should are we comparisons the of ewe h w ttssml antb achieved. comparison be necessary cannot the simply that is states argued two life have the many Because between not, nonexistence). is speaking, death tort the and generally the of knowable more of commission the those perhaps for with or not compare (life) if (death, to occupied state have have post-tort would patient’s would patient the the we position of however, harms context, and this benefits In the mak- difference. and condition the post-tort up the by ing to calculated condition pre-tort meta- generally victim’s is are the damages comparing damages non-economic Compensatory of impossible. determination the physically itself, life is pensated withholding for justification in adequate entirely. damages an damages as non-economic such treated calculating be not of should difficulty context this the Thus, ignored. care C 162 161 es ujcieywreta et n h rsraino iemyconsti- may life of at preservation injury. be the actual may and an conditions death tute some people than some worse for there- subjectively and matter, least situations policy some a as in recognized that already fore, have and, We interests rights. liberty statutory constitutional often, patients’ implicates treatment sustaining MLAC WITH OMPLIANCE orsta iemyntawy epeeal ononexistence”). to preferable be always not may life that courts otn,12Cl pr 3 Cl 92;Hreo .PreDvs n. 5 .d43(ah 1983); (Wash. 483 P.2d 656 Inc., 1984). Parke-Davis, (N.J. v. 755 Harbeson A.2d impairment. 478 1982); or Cillo, (Cal. v. disability 337 Procanik the Rptr. with Cal. associated avail- 182 expenses limiting Sortini, though extraordinary claims, to life damages wrongful permit able Jersey New and Washington, California, However, See that grounds the on violation claims a these than reject rather jurisdictions existence, Most very self-determination. their a medical essentially to is Thus, right compensation aborted. their seek been of have they should which or diagnostic for conceived a harm been misinterpreting never the have disabled or not delivery, should cases, they in or that conception negligence these argue with provider’s test—essentially In condi- associated hereditary medical risks suits. a the a misdiagnosing life misrepresenting example, from parents—for tion, wrongful child’s resulted the of to allegedly information context birth accurate providing the or in conception whose made children been have arguments Similar e.g. See, eiltrshv led aetecuilplc eiinta h rlnaino iei o lasa always not is life of Dilemma? prolongation Life the Comment, that Belsky, decision J. policy Alan crucial blessing.”); the made already have legislatures hl antb amdb life. by harmed be cannot child oecmettr aesgetdta hnteijr ob com- be to injury the when that suggested have commentators Some oee,cut aeakolde httergtt eueee life- even refuse to right the that acknowledged have courts However, ohn fdaho ohnns’sml antafi rc a onon-life.” to tag price a affix cannot simply impossible. nothingness’ or literally death is of however, nothing endeavor, an Such of nonexistence.” trier of the require “would defendant damages the of if computation have directive: A advance would f dead. the be he would honor which plaintiff to in the failure acted, position provider’s not the care had health in the patient for the not put if can been that available damages no are There Strasser, c omauetedfeec nvlebtenlf na mardcniinadte‘te void ‘utter the and condition impaired an in life between value in difference the measure to act , Milani, supra ,22U.B supra A oe4,a 0 Peters, 70; at 43, note DV ANCE ALT oe10 t222: at 160, note 162 .L.R hrfr,ee fw ontko h xc values exact the know not do we if even Therefore, D EV IRECTIVES e,e.g. See, . 8,23(93 “ih-odecsseiec oecneso by concession some evidence cases (“Right-to-die (1993) 223 185, nuya atro a:I hsteAse oteWrongful the to Answer the This Is Law: of Matter a as Injury , supra oa .Uie tts 5 .d41 7 7hCr 1981). Cir. (7th 474 471, F.2d 658 States, United v. Robak oe8,a 9 “tteedo ie tt orsand courts state life, of end the (“At 691 at 86, note 161 ... Ma woknows “who [M]an See T ri v. urpin 173 Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 166 165 164 163 living. created wrongful to doctrine jurisprudence “blessings” pregnancy-related the of import context not the must in we can life Therefore, of continued this injury. matter again, an of burdens; a the recovery be as outweigh no that, always or case life be of the his could benefits be the there cannot against law, it and However, alive alive damages. kept off of type better patient particular is the patient by the will, experienced outweigh her suffering truly life and only continued pain offsetting of benefits the be hedonic would the If benefits harms. nonpecuniary nonpecuniary because unproblematic, is benefits relative com- the damages of life. of comparison continued measure of a burdens proxy elements: and a knowable using entirely by of wishes prised patient’s a from resulting of injury the violation recognize can we Instead, all. at injury non-economic 174 fpol noigpeieytoesrso lives. of sorts those precisely groups lives enjoying vulnerable of for people results types dangerous of to certain lead that could which idea lived, be the not of ought inevitably endorsement would governmental it a fear to They amount advocates. rights disability worries assessment objectively is she or he harm. that of that court view subjective is the however, to issue, or prove difficult he must more w why patient The place. precisely the recover, first was the to balancing in this care assume refused she can we because mination, n hudb opnae o aigbe amdi hsway. this in harmed been having for compensated be should and e b ainsaebte f ed nta,te ol ipyb inln agreement signaling be simply would they Instead, dead. off better are patients ihsdebate, rights f c htatnmu niiul hudntb sda an ntedisability the in pawns as used be not should individuals autonomous that act prec fBed on) h ain rl a aebe etrofdead off better been have may truly patient the Young), Brenda of xperience reso otne ieaes a st uwihtejy prasa nthe in as (perhaps joys the outweigh to as bad so are life continued of urdens reof o orsaentstse oaaddmgsbsdo patient’s a on based damages award to satisfied not are courts for off, orse rnfllvn asso cinwudb nprpitl ermna odsbe populations). disabled to detrimental inappropriately be would action of causes living wrongful 0H 40 lcaOuellette, Alicia generally See Hospital: George Francis-St. St. Daniel v. Je injury); no Anderson is there al., otherwise because et dead off Pollack better Murtaugh, be would T. they that Michael show must patients blessing. Event,”claim, “Blessed a a always for is Remedy See child a a Determining of in emo- birth Dilemma for the Courts’ recovery The parents’ that the Birth: ground limited Wrongful the or rejected on have damages claims birth tional wrongful with faced courts Many iig a nyeiti h ieoei etwt swreta o iiga all”). at living not than worse is with left is one life the if exist only can living’ R EV ihLglPerspective Legal wish . ee h sm neet”picpeo the of principle interests” “same the Here, nupiigy aigcut novdi hssr fqaiyo life of quality of sort this in involved courts having Unsurprisingly, deter- this making patient the about wrong inherently nothing is There h orswudntb nonigapbi oiyta eti ye of types certain that policy public a announcing be not would courts The Peters, ARV 4,28(2007). 258 241, . ..CL .R L. C.R.-C.L. supra W 166 nyF Hensel, F. endy iaiiyadteEdo Life of End the and Disability oe8,a 9 ntn htmn omnaosageta,t i rnflliving wrongful a win to that, argue commentators many that (noting 696 at 86, note hsfa sunfounded. is fear this EV ,45C . 4 20) Milani, (2005); 141 LEV h ialn mato rnflBrhadWogu ieActions Life Wrongful and Birth Wrongful of Impact Disabling The .S T .L.R EV . ,85O 2,65(97 agigta dmgsfr‘wrongful for “damages that (arguing (1997) 635 621, supra R .L.R oe10 t14(run htrcgiinof recognition that (arguing 154 at 160, note EV rnflLvn rma mrcnand American an from Living Wrongful . 2,16(2006). 176 123, 165 Restatement oee,aiefo the from aside However, ’s 164 eetrule benefit L NHE AL ET YNCH 163 7P 27 fthe If ACE L. . , Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 opri h otesrt oc eeto nte gis i rhrwill. her or would his result. rule against the a of another such application when on create required benefit is damages intended a of not victim’s mitigation force no explicitly the to Thus, is ensure tortfeasor it and the incurred, windfall actually permit harm a to previ- the prevent saw to to limited we intended is While is recovery problem. rule of the sort that this ously precisely for accounts that clause o esg htohrptet ihasmlrponssms eln care.” decline must prognosis similar a with patients other respected, that be message must a rights not patient that message a “send would assessment that of ihteptetsonassmn htacranqaiyo iei seta,an essential, themselves. is for make life to of right the quality have certain patients that a assessment that assessment own patient’s the with C 169 168 167 trampled. autonomy and ignored beliefs religious fundamental having fact their from the of damages emotional some of com- real light suffered Nonetheless, certainly in have dead. insufficient patients such seems off that alone time better damages difficult been economic a for have have pensation would will they they that outcome, establishing medical favorable their Given text. other any for more are they no than living be wrongful will and of tort. context they pain the subjective, because in prove Additionally, somewhat to care. difficult always refuse are to damages not burden suffering prefer not would would them who recognizing and those calculable way some in are plaintiffs anyone. to cause threat the a of pose recognition not injurious, does is life action of of sort particular a that appropriate, else someone not was wish patient’s w the life- that receive conclusion to e the wished wrongful on for patient recovery based withhold a could death court if the no if denied, personally; was only but it evaluation care sustaining this made make already to opportunity had an patient have would courts fact, In cp ehp ftecr a emdt eftl.Bcuewogu living wrongful Because futile. be to deemed was care the if perhaps xcept MLAC WITH OMPLIANCE udntrqieacuto n te esnt neednl eiefor decide independently to person other any or court a require not ould R Peters, Peters, eoehso e oyt atclrproe o xml,srigGd n hudnthv damages have not should and value. God, to of serving entitled example, version be else’s for to someone purpose, ought damages particular patient by have a a to mitigated Similarly, to value.” entitled body market not her their is to or use added his the devote has with he continue interferes that to who fact entitled person is the the he by and purpose, mitigated particular purpose, a that to for devoted them has he use that to chattels or land has person a “When nweg httepteto e rx etcraneog bu h amuns fteunwanted the of harmfulness life.”); the longer about a enough of certain chance felt the proxy forego her to or treatment patient the that knowledge ti ttmn bu htidvda ny htfrti esn ihti itr,ti xeine and experience, this history, this with person, life. wanted.”). this person’s not for another is that of treatment only: value the individual the existence, that this about about judgment statement a a not is is It treatment terminate to preference person’s ESTATEMENT nfc,the fact, In con- this in problem unique a pose Werth Cindy like patients However, living wrongful by experienced damages suffering and pain the Thus, supra supra (S oe8,a 695. at 86, note oe8,a 0 “na cinfrucnetdtetet h uysts saddb their by aided is task jury’s the treatment, unconsented for action an (“In 700 at 86, note ECOND A Restatement DV ) OF ANCE 169 T ORTS eas rnfllvn litfsseiclysought specifically plaintiffs living wrongful Because D IRECTIVES § 0,ct 17) hscmetpoie h olwn example: following the provides comment This (1979). f cmt. 902, ’s eetrl a n“qial considerations” “equitable an has rule benefit e also see Ouellette, supra oe16 t12(“One 182 at 166, note 167 Enforcement 175 168 Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 rpsl ugs h lmnto fnncnmcdmgsaltogether. damages noneconomic of elimination the suggest proposals 173 172 171 170 life, wrongful of context the in inappropriate are damages suffering comes it when impotent. But, is restored. money again be suffering, once and can pain state, lost to money pre-tort comes it because a when harms accomplished to economic easily possible to is goal as This “whole.” closely plaintiff the as making intended plaintiff are the damages Compensatory restore suffered. to harm actu- the not for will damages compensate monetary ally wrong- that the argument in the namely, recoverable context: be living should ful suffering and pain for damages that thereafter. clude proceed lives to their refusal permitted well one’s how be having of to with regardless associated violated ought care harms they of dignitary them, serious upon the for conferred recover “benefit” the avoid to 176 o l ftepcnayadnneuir ossflwn rmtetortious the from flowing responsible losses be nonpecuniary would and and living pecuniary behavior. wrongful the for of liable all held patient, for a be saving could in she inappropriately or behaved he has granted. physician be must a agents have when as room However, physicians would allowing that they of discretion interpretive casualty when of unavoidable sort an saved the are for be errors such they thereby but may die, if to patients preferred that, Some assured liable. rest held be could Physicians crafted. av have we variant living offer. can we of best form the inadequate often an treat is to be it reason but may no compensation, Money can is differently. there they plaintiffs contexts, assuming all living in entitled, wrongful changes generally policy are that Until victims proven. tort be which to package the nnilaad be such awards Once financial injury. the for [plaintiff] less the the a compensating but of damages, large capable for is award claim more the the “The stronger damages: general the for impairment, argument the the serious of heart Steinbock the example, at For paradox living. a asserts wrongful to applicable equally are arguments panif a eoee o i rhrmdclepne,hwcnfurther can how expenses, medical her or his for recovered has [plaintiff] i ekeseso netoa irgr faptetswse,te ilnot will they wishes, patient’s a of disregard intentional or recklessness oid R ftepyiinbhvdpriual al,pntv aae a eaporaea well. as appropriate be may damages punitive supra badly, particularly behaved physician the If King, H. Joseph Steinbock, Bonnie supra See EV . oecmettr aerle nti imtht ru htpi and pain that argue to mismatch this on relied have commentators Some con- can we before overcome to hurdle additional one is there Finally, tti on,i ol ehlflt umrz h oto wrongful of sort the summarize to helpful be would it point, this At of part are damages suffering and pain that remains fact the However, obdigueo iessann rcdrsi hrebewt osiu,koigdisregard instructions knowing patient’s conscious, a the with disregards chargeable who is and procedures life-sustaining patient of the use treat forbidding to continues who physician The 6 (2004). 163 oe10 t25n.355: 225 at 160, note 173 oe11(icsino hs claims). these of (discussion 161 note P i n Suffering and ain h oia aefr“rnflLife,” “Wrongful for Case Logical The compensation , oeooi aae n h ol fTr Law Tort of Goals the and Damages Noneconomic ?” 171 nsmlrgons oetr reform tort some grounds, similar On H ASTINGS C TR .R PT ,Ar 96 t1,20. 15, at 1986, Apr. ., 170 L NHE AL ET YNCH ,57 n these and See M L. SMU 172 Milani, . Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 C 175 174 save to safer always is it which in situation a created have They complicated matters. unnecessarily have unique courts the somewhat issues, a presenting damage merely resolvable) torts (though is traditional living more wrongful of that their instantiation to recognize against particular to impotent saved proven failing By has being problem. structure are this legal resolve current patients The the frequency. some and with fulfilled will not often are others wishes in but want, would us. patient told the already what has possible. guess patient extent only the fullest can the we goal to cases, The autonomy contrary. some patient the In permitted preserve to be to statements be clear should always made rule patient have should this who the those that assumes out reason crowd that no to least is rule very the there the at However, or statement, unproblematic, supportable. is unclear care life-sustaining statement an or no life-saving made only desires has patient or a be wishes When life. can of of favor care the in weakening might without rule of who and default of herself, party refusal traditional or himself other use patient’s for any choice the different A on a through impact made them. have detrimental care of a medical having one without refuse enforced not to is right directives the advance but remedy, a without suit. CONCLUSION to death able wrongful be a to longer suit no living will wrongful a counsel prefer hospital they die, that to assert them allowing than rather W fwihhsetece h uei ao flf smr hnjs default. a just than more as life of favor in rule fear the the entrenched death, has wrongful coun- which for excellent of face an currently provide physicians would liability also the It to capable. terweight is law tort that extent fullest MLAC WITH OMPLIANCE t h osblt fsgicn aae o aigpol gis hi will their against people saving for damages significant of possibility the ith goe,btalwn ekrrcvr sbte hnalwn orcvr tall. at wishes recovery end-of-life no one’s allowing having than with better is associated recovery injury weaker realization full allowing progressive but the for ignored, hope for, may compensation We pecuniary compen- none. appropriate of fully than than recovery and better less allowing of, are be illogical), arena will this it if in though (even changes function, great Incremental deterrent satory. sufficient too a are serve injury likely will an alone is damages life patient’s a that ration supra See Hackleman, nldn osqeta aae o anadsfeigrsligfo rlnaino ie dignitary appropriate in life, damages punitive of and survival, cases). prolongation by caused from costs medical resulting distress, mental suffering on and based damages pain for damages consequential including notntl,eiec ugssta,ee nteelte ae,patient cases, latter these in even that, suggests evidence Unfortunately, remain must policy, public of reasons for that, rights some be may There hscmiaino amnswudcmest h ain othe to patient the compensate would payments of combination This oie ril antb oeae.Pntv aae r prpit nteecss regardless instructions. cases, patient’s these the in disregarding appropriate in are motives caregiver’s damages the Punitive of tolerated. good for be whether cannot right, legal ill, patient’s or the for motives disregard knowing Such right. legal patient’s the of oe 27 n copnigtx.I ulcplc ocrssronigacutsdecla- court’s a surrounding concerns policy public If text. accompanying and 72-73 notes supra A oe16 t17 sgetn iia nebeo aae o rnflliving, wrongful for damages of ensemble similar a (suggesting 1370 at 106, note DV ANCE D IRECTIVES 175 177 174 Downloaded By: [University of Pennsylvania] At: 16:48 17 June 2008 antakfrmore. for ask cannot n eia ntttoswudpoieahlflsiti h ih direction. right the in shift helpful a provide would institutions professionals medical of care and health refusals against clearest if living the wrongful changes even for to recovery important adhere Permitting those to care. failure drive for the to exist by consequences though, possible real as no little, closely is as There guided are desires. herself patient’s or himself for speak longer new no finding and adapt, or change might w they how and wishes upon end-of-life reflect people their helping directives, advance improving in made be still must 177 176 practice.” medical good with patient accordance act that in to by and be expressed family, would patient’s as wishes the do patient’s or to the thing with consistent prudent faith, legally good potential “only in facing the Instead, behavior. fronts, physician both of on driver liability a liability be of fear to then cease living, may al- wrongful itself we and If death wishes. wrongful perfect end-of-life both that for of fact expression liability low the the in for achieved room be leaving rarely still can status clarity while intolerable this their the accomplish changing of toward could violation way It the long quo. a from go flowing could harms care the refuse of to right all for recover to patients ing avoid. to sought specifically had they harms other the and bear to care patients leaves This suit. death e wrongful a risk than rather patients 178 traiiso ht“lyi-ae etlt—aey h ot fmedical of costs the mentality—namely, “play-it-safe” that of xternalities y oesr httoersosbefrdcso-aigoc ain can patient a once decision-making for responsible those that ensure to ays Fo Gasner, ramnsw ilfidwrhhl n hc ild omr hnpeev si tt fmisery. of state a in us preserve than more no do will which no and is See worthwhile there find euthanasia, will an voluntary from we even predicting, with treatments or associated difficulties suicide inherent physician-assisted the for of remedy direct possibility the without life, of re oee,rcgiino rnfllvn sntapanacea. a not is living wrongful of recognition However, oee,bcuebhvo siflecdb h heto iblt,allow- liability, of threat the by influenced is behavior because However, Savulescu, ape lhuhrcgiino rnfllvn liswl epipoeatnm tteend the at autonomy improve help will claims living wrongful of recognition although xample, supra oe3,a 504. at 30, note supra oe77. note ex ante 177 esetv,which perspective, uestrides Huge L NHE AL ET YNCH 176 We .