Physicians' Fears of Malpractice Lawsuits Are Not Assuaged by Tort Reforms

The September 2010 issue of HEALTH AFFAIRS is devoted to medical malpractice.  One article seems particularly appropriate to medical futility disputes.  Emily Carrier and colleagues found that "Physicians' Fears of Malpractice Lawsuits Are Not Assuaged by Tort Reforms."

“The consequences of being sued are perceived as potentially disastrous to one’s medical reputation, psychological well-being, and financial stability. Finally, physicians tend to view lawsuits as random events, unpredictable and uncontrollable, because they are not viewed as related to the quality of care provided. These factors may lead to a fear of suits that seems out of proportion to the actual risk of being sued.”

“Although many medical professional organizations continue to press for liability-limiting tort reforms, we found that many such reforms were not associated with a significant difference in physicians’ malpractice concerns.”

When is Enough Simply Enough? Shining Light on Medical Futility Through Bernstein v. Superior Court

Phillip L. Kim published a new note in the SMU Science and Technology Law Review (Volume 13, Number 2, Spring 2010: 231):  “When is Enough Simply Enough? Shining Light on Medical Futility Through Bernstein v. Superior Court.”  The Bernstein case is worth reading (I blogged about it here in Feb. 2009).  Kim reviews the case and provides a little critical commentary, but does not add much that is not already in the court's opinion itself.

Wawrzyniak v. Sunnybrook Health - More About Communication than Standard of Care

In a recent review of end-of-life conflicts, John Luce notes that healthcare providers are overwhelmingly successful when sued for unilaterally refusing life support.  Similarly, Barry Swadron, the Toronto lawyer representing Wawrzyniak in her lawsuit against Sunnybrook Health, says her suit "could be the thin edge of the wedge in terms of doctors deciding who’s going to live and who’s going to die.”  But, by focusing on the standard of care issue, both Luce and Swadron may be missing what is most salient about this case. 

In his article, Luce focuses only on actions for medical malpractice.  But that is not the only legal theory under which families might proceed.  As I have argued here and here, the theory under which families are most often successful, in lawsuits for unilateral refusal of life support, is intentional infliction of emotional distress (aka outrage).  

While unilateral refusal itself has never been held per se outrageous, this case has elements of wrongfulness above and beyond unilateral refusal. Specifically, based on press coverage of the lawsuit, provider conduct here appears to have been both insensitive and secretive: 

• The daughter was not just overruled but was overruled "without consultation"  [This is not allowed in Texas, Virginia, California, or any other U.S. state permitting unilateral refusal.]
• A hospital representative admitted that the end-of-life policy does not allow doctors to make unilateral decisions "without communicating with the family"
• The daughter attempted to bag her father herself, while a doctor said "nobody will come"
• The patient's chart was changed from full code to DNR without consent or even explanation.  When confronted, a doctor said "This is for his own good."

New Case: Wawrzyniak v. Sunnybrook Health Sciences

Many recent medical futility dispute cases both in the United States and Canada have been ex ante cases.  In these cases the patient is still alive and one side or the other goes to court.  Sometimes, the patient's family is seeking an injunction ordering healthcare providers to continue life-sustaining treatment.  Other times, it is the provider who goes to court to seek a declaratory judgment or to replace the decision maker (e.g. through the CCB) who will not consent to the less aggressive treatment providers think appropriate.  

On the other hand, in ex post cases, the family sues for damages after providers have already proceeded to withdraw life support without the family consent.  Wawrzyniak v. Sunnybrook Health Sciences is this type of case. Joy Wawrzyniak has filed a $1 million lawsuit against Sunnybrook and two of its physicians.  The lawsuit claims that while Wawrzyniak and her father had repeatedly requested that he receive lifesaving treatment in case of a medical emergency, doctors unilaterally overruled those wishes without consent or consultation.  (Toronto Star)  

Barry Swadron, the Toronto lawyer representing Wawrzyniak, said her suit could set legal precedent in Canada.  “This could be the thin edge of the wedge in terms of doctors deciding who’s going to live and who’s going to die.”  Maybe.  But it is worth noting that providers have won almost all the ex post futility cases that have gone to court.

Tell Me the Truth: Conversations with my Patients about Life and Death

In a book published earlier this month by Penguin titled, Tell Me the Truth: Conversations with my Patients about Life and Death, Australian oncologist Ranjana Srivastava discusses end-of-life communication.  


In a recent interview in the Sidney Morning Herald, Srivastava explains: "we do not talk to our patients as fully as we ought or when we fail to address their concerns that we know lurk beneath the surface - sometimes because we lack the time, but often because we are unsure how to do so.''  She continues:  ''We spend a lot of money on futile medicine and intensive care at the end of life and if we have limited resources like every nation does, we need to be thinking about how those resources are best allocated. I think investing in palliative care and boosting support services for sick people is very important. Those things should not be an adjunct."  

Cancer patients put up with the most and complain the least, endowed with an uncommon wisdom that is a privilege to observe. It is not simply that they see the big picture; if you spend long enough with them, they help you see it too.'

What really happens when someone hears the words, 'You have cancer?'  What has preceded it and what comes after? Written with great compassion and honesty, this is a rare view from the other side of the desk. Oncologist Ranjana Srivastava reflects on the very human side of the medical profession – the moral dilemmas, the anxieties, the empathy  – and shows us that the best doctors are the ones who keep learning by listening to their patients.

This book is much more than an oncologist's diary; it is an acknowledgement of the incredible courage of ordinary people as they confront the big issues of life and death.

Regulating Physician Behavior: Taking Doctors’ 'Bad Law' Claims Seriously

Sandra Johnson's superb article, "Regulating Physician Behavior: Taking Doctors’ 'Bad Law' Claims Seriously," was just posted to SSRN, making it more readily accessible to non-lawyers.  This article is a masterful review and elucidation of deep legal problems underlying medical futility disputes.  Here is the abstract.  

Physician behavior is a key target of government regulation intended to improve the efficiency, quality, and accessibility of health care. Yet according to physicians’ “bad law” claims, the legal effort to promote patient health and well-being has actually caused significant harm. These “bad law” claims - that malpractice litigation prompts defensive medicine, that patients’ rights policies prompt doctors to provide futile care, that controlled substance laws cause physicians to undertreat patients in pain - have diminished in significance due to the deconstruction of professionalism. Claims are often discarded as the cries of “bad apple” doctors or in the interest of creating a more egalitarian or consumer-oriented model of medicine.

This article argues that physicians’ “bad law” claims should be taken seriously. The way physicians react to legal requirements can negatively impact the effectiveness of the law and the quality of patient care. Thus physician behavior must be included as an important factor in the effort to evaluate and improve the performance of the law. Taking seriously physicians’ “bad law” claims is a first step to understanding how physicians react to legal risks and consequently, how well laws perform.

This article begins by addressing the dynamic relationship between the health law reform agenda and the medical profession.  Part II considers categories of physicians’ “bad law” claims, recognizing that some may be dishonest or misinformed but arguing that many claims have credence as legitimate responses to extralegal shadow systems or truly harmful legal standards.

Part III assesses common responses to physicians’ “bad law” claims. Providing specific examples, the article argues that current responses - e.g. educating doctors on the law; immunity statutes; safe harbor provisions - are inadequate because they fail to account for the realities of the medical professional or the nature of the law.

Finally, Part IV makes two recommendations for taking physicians “bad law” claims seriously and thereby effectively evaluating and improving the reform effort. First, it advocates evaluating the law through its population-based effects on physician behavior. Second, it recommends tailored monitoring and investigative processes that allow formal legal standards rather than policy decisions to govern the regulatory process.

Right to Know (aka R2K) Laws

Dominic Wilson at Oxford chastises the United States for enacting laws that "should not be."  He finds it "astounding that a state" -- he focuses on New York -- "feels that it is necessary to legislate to make doctors do what they should be doing anyway."  After all, Wilkinson notes, "the United States has enshrined autonomy as the keystone of medical ethics." 

Alas, common law duties of informed consent have not proven sufficient to induce physicians to discuss end-of-life options with patients.  Sure, New York's new "right to know" or R2K law is awkward (and perhaps offensive to healthcare providers) in that it legislates the content of the physician-patient relationship.  But the failure to empower patients about these very important decisions is so widespread that legislation has become necessary.  

New York joins California and Vermont, which also have R2K laws:

• N.Y. A.B. 7617 (2009) (Gottfried), enacted as Ch. 331, codified at N.Y. Pub. Health Law 2997-C.
• Cal. A.B. 2747 (2009) (Berg), codified at Cal. Health & Safety Code § 442.5.
• Vt. H.B. 435 (2009) (Patient Bill of Rights for Palliative Care and Pain Management), enacted as Vt. Laws No. 25, codified at Vt. Stat. tit. 18 § 1871

Bills have been introduced in other states, Including Arizona and Maryland:

• Ariz. S.B. 1311, 49^th Leg. (2009).
• Md. H.B. 30 (2009) (Bobo & Manno)

The Growth of the "Bad" Patients

In her new book, The Empowered Patient, Elizabeth Cohen encourages people to "be the bad patient," one who pipes up and questions the physician.  This morning's USA Today, reports that more empowered patients question their doctor's orders.  The article focuses on diagnostic testing, but this greater involvement surely applies more broadly, including to end-of-life care.

Philip Nitschke: Upcoming North American Public Meetings

The Peaceful Pill Handbook Newsletter

New Digital Edition You can order the eHandbook from our website: Print Edition The book can be ordered from these vendors: Exit Safe Suicide Meetings & Workshops Nth America Tour 2010 Meetings & Workshops with Dr Philip Nitschke MD PhD Public Meetings provide an outline of the legislative history & current political status of Safe/ Assisted Suicide. These meetings are free & open events (11am - 12 noon). Safe Suicide Workshops follow immediately from Public Meetings & provide the latest end of life information for Seniors, the Seriously Ill & their Families based on the Peaceful Pill eHandbook updates on practical end of life issues (1 - 4pm). Topics Covered Includes the latest research on: •  The Barbiturates: Sources, Storage, Testing & the Ohio Single Drug Protocol •  Gases: Helium, Nitrogen, Argon - the physiology of hypoxia, flow rates & detection, the role of carbon dioxide •  Peaceful Poisons: Carbon Monoxide, Cyanide - Production, Risks, Safety Procedures •  Other Options - Prescription and Non-Prescription Substances - Combinations, Substitutes, Warnings Meeting Dates & Venues Vancouver - Canada Thursday 7  October, 11am - 4pm (Public Mtg 11am - 12 noon; Workshop 1 - 4pm) Unitarian Church of Vancouver 949 49 Ave West, Vancouver, BC, V5Z 2T1. Toronto - Canada Wednesday 13  October, 11am - 4pm  (Public Mtg 11am - 12 noon; Workshop 1 - 4pm) Workman Hall, 1st Unitarian Congregation of Toronto 175 Claire Ave St West, Toronto, ON, M4V 1P7. New York, NY Wednesday 20  October, 11am - 4pm (Public Mtg 11am - 12 noon; Workshop 1 - 4pm) Community Church of New York 40 East 35th St, New York, New York 10016. Orlando, FL Saturday  23  October, 11am - 4pm (Public Mtg 11am - 12 noon; Workshop 1 - 4pm) A Gathering Place, 1st Unitarian Church of Orlando 1901 Robinson St East, Orlando, Florida 32803. San Francisco, CA Friday 5  November, 11am - 4pm  (Public Mtg 11am - 12 noon; Workshop 1 - 4pm) Audre Lorde Room, Women's Building 3543 18th Street #8, San Francisco  CA  94110. Attendance Exit Members  - Free Exit Membership - $100 (per annum, includes workshop) (US$/ Ca$) Subscribers to Peaceful Pill eHandbook - $40 (US$/ Ca$) Non Members - $60 (US$/ Ca$) Bookings eMAIL:      contact@exitinternational.net OR CALL:        1-248-809-4435 OR FAX:          1-360-844-1501 OR MAIL: Download form (Canada & US)  - click HERE and Mail to:       Exit International US               PO Box 4250                  Bellingham WA 98227               Web: www.exitinternational.net          &      www.peacefulpill.com Note: Exit reserves the right to refuse entry to any person for any reason. Photo ID may be requested on the day.