One of the defining principles of hospice care is honoring the wishes of terminally ill patients. Now, with increasing frequency, a health care provider’s failure to honor those directives can lead to litigation or penalties by regulators.
These issues come into play when a health care provider does not adhere to a patients’ advance care plan. This can prevent or delay hospice care for individuals who chose to receive it.
Some call these cases “wrongful life lawsuits” when they occur in the courts, though “wrongful resuscitation” may be the more accurate term.
“The courts for a long time were not receptive to these claims, because they couldn’t conceptually grasp how the patient was harmed if we literally saved their life. But now we recognize that people can make a choice,” Thaddeus Pope, professor at the Mitchell Hamline School of Law, told Hospice News. “It’s more likely to be successful in 2022 than it was five years ago.”
Alleged violations can occur due to negligence or error, according to Pope. A clinician may not not have realized they were acting contrary to patients’ wishes due to insufficient training, documentation errors or process breakdowns.
In other instances, a health care provider acts deliberately. They know the patient’s wishes were documented but chose to ignore them.
While the reasons for doing this can run the gamut, one of the more common threads is that the clinician believed that the advance directive did not apply to the patients’ current situation.
For example, if a patient who decided to forgo life-extending treatment or resuscitation due to terminal cancer is brought to the emergency department for a different reason, like a cardiac event, staff may assume that their documented wishes do not apply in this other circumstance, Pope told Hospice News.
Training for health care providers on advance care planning and the associated legalities is essential, according to Dr. Dan Morhaim, a retired emergency department physician and Maryland state delegate.
“You need to train your staff, right now — administrators, nurses, doctors, clerks, everybody,” Morhaim told Hospice News. “They need to recognize that and to involve the services like hospice care, and palliative care early, rather than at the very end, because they’re going to ease a lot of that burden.”
While in the past, lawsuits like these rarely resulted in hefty judgements, that appears to be changing.
A case in California resulted in a $200,000 judgment for the patient’s family, as well as a subsequent $1 million settlement in a related civil rights suit.
In that instance, courts found that a local agency, Humboldt County Adult Protective Services, had acted fraudulently when filing a petition to take over health care decision making for an elderly and terminally ill patient who had chosen to receive palliative treatment.
The patient was forced to receive certain medications against his documented wishes, and his wife was removed as his designated surrogate decision maker.
“In sum, Humboldt was not merely negligent in preparing its petition and request for an order compelling medical treatment under the Health Care Decisions Law; it knowingly and deliberately misrepresented both the law and the facts to the trial court,” the court’s opinion stated. “We would find such conduct troubling in any case. In the instant context we find it profoundly disturbing.”
This is just one example of several judgments in recent years against health care providers or other parties who sought to ignore or override a patient’s end-of-life directives, according to Morhaim. A number of these cases resulted in settlements or payouts in hundreds of thousands or millions of dollars, he said.
Effective documentation of end-of-life choices has been associated with higher likelihood of hospice enrollment and lower incidence of intensive therapies, even during hospital stays, a 2019 JAMA Network study found.
Not only do these factors have the potential to reduce health care costs, but they can help ensure patients receive goal-concordant care in their final days. Nevertheless, only about 45% of the chronically ill have documented their wishes, according to 2017 research in Health Affairs.
A health care provider who fails to adhere to an advance directive may face consequences without ever setting foot in a courtroom, Pope indicated.
State and federal authorities, including the U.S. Centers for Medicare & Medicaid Services (CMS), can impose regulatory sanctions or civil monetary penalties. Professional licensing boards also have the authority to discipline clinicians for ignoring advance care plans.
“You have a duty to ask if patients have an advanced directive and then to make sure that whatever’s in the advance directive gets reflected in the chart or electronic health record,” Pope told Hospice News. “You have to make sure that the records and the standing orders are consistent with the advanced directive and make sure that whoever implements the orders are actually aware of what the orders are.”
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