Public Health Law Map - Beta 5 - Medical and Public Health Law Site

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