Ignoring living wills may lead to 'medical battery' suits Lawyers argue it's illegal to go against directives

June 02, 1996|By NEW YORK TIMES NEWS SERVICE

For the past four years, Brenda Young has spent her days in torment, rhythmically screaming and thrashing in her mother's modest house in Flint, Mich.

Since a seizure in 1992, Young, 38, has needed total care. She must be fed, bathed, diapered and, at night, tied into bed so she does not push herself over the padded bedrails.

Sometimes she manages a few intelligible words: "Water" or "Bury me." But mostly she screams, over and over.

It is precisely the kind of existence that Young sought to avoid by signing an advance directive, on her doctor's advice, one month before the seizure that left her so disabled.

Warned that the seizures she had been having were likely to worsen, Young gave her mother, Ramona Osgood, power of attorney to stop treatment if she became incapacitated.

But to no avail: After her next seizure, Young was put on a ventilator, tube-fed and maintained through a two-month coma, despite her mother's insistence that Young did not want life support.

In a lawsuit against the hospital, Genesys St. Joseph, Young, her mother and daughter won a $16.5 million verdict this year. Sue Zitterman, the lawyer representing the hospital, declined to discuss the case, except to say that the judgment had yet to be formally entered and that the hospital would seek to have it modified or overturned.

At trial, the hospital argued that the family had authorized the treatment Young received, that her doctors believed they were doing what was best for her and that they could not predict how disabled she would be.

Although the Michigan case is apparently the first of its kind in which a jury awarded substantial damages, hospitals, lawyers and right-to-die advocates say there is a new wave of lawsuits seeking to hold hospitals, nursing homes and doctors liable for ignoring living wills and other advance directives.

"The Michigan case is one of these jolts in the field that sets off waves of discussion and reminds us how vulnerable we are, because we are human beings whose training and background are in saving lives," said Richard Wade, a spokesman for the American Hospital Association.

"So it's going to take us a while to learn to deal with these end-of-life issues."

The legal theories in such cases vary, with some based on charging negligence and others on intentional infliction of emotional, physical and financial distress. But increasingly, lawyers are arguing that treatment given against a patient's will is a form of battery, an illegal attack on the patient's body.

"This is a new area of law, and the legal theories are still developing," said Anna Moretti, a lawyer with Choice in Dying, an advocacy group that tracks the cases.

"But most people are using a theory of medical battery. The idea is that patients have a right to refuse treatment, so if the patient has expressed a wish not to have a particular treatment or procedures, and the doctors and hospitals do it anyway, it's legally like an assault on the patient."

Advance directives do not always resolve what to do in an emergency, doctors and hospital administrators say, because patients and families often waver when confronted with imminent death and because it is often hard to predict whether emergency intervention will improve the patient's quality of life or consign him or her to a long, painful process of high-tech dying.

"No one acts out of malice, but these are very complicated issues. And except in the most clear-cut cases, everyone following an advance directive has some doubts," said Wade, the association spokesman.

"Even if you're sure this is what your relative wanted, you have some doubts, too. It's all a confluence of human judgments around a traumatic situation, and everything becomes different when it comes right down to it. No piece of paper tells you exactly what to do."

But right-to-die advocates argue that hospitals still do not pay enough attention to patients' wishes.

And, they say, the new lawsuits provide useful pressure to change a medical culture that too often insists on extending life, without regard to a patient's wishes or to the cost in pain and suffering.

Pub Date: 6/02/96

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