Appellate court may decide suit over an unwanted resuscitation Death: A lawsuit begun after a dying man's wish was ignored questions hospitals' and doctors' regard for living wills.

December 30, 1998|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

Over 10 days in July 1994, Robert "Terry" Wright suffered a painful death from the complications of AIDS that he had tried to avoid, unaware even that the mother he moaned for was beside his bed.

"He didn't want to die like that," said his mother, Jeanette Wright.

She and her husband, Robert Wright Sr., have pressed what amounts to a wrongful revival lawsuit against Johns Hopkins Hospital and its physicians.

If the Court of Appeals takes on the case, judges for the first time could rule on whether health care providers can be held liable for not honoring, under some circumstances, a patient's advance decision to die, and whether the law protects hospitals if they mistakenly revive patients who want to die.

In February 1993, his health fast failing, Terry Wright signed a living will he got from Johns Hopkins. It said that once two doctors certified he was terminally ill and his death was imminent, he did not want his dying artificially prolonged.

On a hospital planning form, he checked "do not resuscitate."

He named his parents, with whom he lived in Baltimore, to make health care decisions for him if he was unable to make them himself.

But July 20, 1994, when the 33-year-old's heart stopped in a reaction to a blood transfusion, doctors did resuscitate him and Wright emerged from the crisis brain-injured.

What happened amounted to battery and negligence, the Wrights say in a $1 million lawsuit. Doctors should have known not to revive their son, they say.

The medical professionals say no order was included in his chart to let him die, despite the living will. If they erred on the side of life, the law covers them with immunity, the doctors say.

Baltimore City Circuit Judge John Carroll Byrnes dismissed the Wrights' lawsuit in January. He said state law backed the hospital and doctors, that while death is a legal harm, continued life is not. The Wrights appealed to the intermediate appellate court to allow their case to go to trial. The health care providers asked the Court of Appeals to tackle the issues, and it heard arguments this month.

'Medical battery' alleged

The unusual case unfolds against a backdrop of heightened awareness about the quality of death and under what conditions patients want high-tech care available to sustain life.

It is one of a small but growing group of lawsuits nationwide accusing the medical community of not following through on patients' advance requests to withhold treatment.

Like the Wrights' lawsuit, these suits argue that unwanted treatment is "medical battery." While winning damages is difficult, in one 1996 case, a Michigan woman won a $16.5 million judgment against a hospital for contradicting her wishes and leaving her daughter alive but incapacitated. The two sides settled out of court for an undisclosed figure.

"It is just the beginning of a trend -- there is not a lot out there on it," said Carol Sieger, an attorney for the advocacy group Choice in Dying, which follows these cases.

A 1995 national study found a gap between patients' dying wishes and how they were treated. The Robert Wood Johnson Foundation found 31 percent of the patients in its study said they did not want cardiopulmonary resuscitation, but 80 percent of the doctors either misunderstood or ignored them. Half the patients who wanted their doctors to write "do not resuscitate" orders were not obeyed.

"They are the toughest end-of-life issues we deal with," said Richard H. Wade, spokesman for the American Hospital Association. "The hospital gets thrown into the middle of all this."

Some patients say they want no cardiopulmonary resuscitation if it would leave them impaired. But health care workers often cannot predict if revived patients will be disabled or brain-damaged -- or if they will return to the exact condition they were in before the crisis.

Jack Schwartz, the Maryland attorney general's chief counsel for opinions and advice, said making choices for the end of life has grown more complex, "but our model is the cancer patient of the late '70s" whose disease progress was predictable. Treatment for AIDS, pulmonary disease and heart diseases changed that.

"People with these diseases have crises and they sometimes survive the crisis and get better. But one of the crises they die from. It's very unpredictable when that crisis has arrived," he said.

When admitted to the hospital July 18, 1994, Wright was not near death, said Carol A. Zuckerman, lawyer for Hopkins and its physicians. When transfused July 20, 1994, the AIDS patient felt better and was about to be discharged. None of the terms of his living will was met. His reaction to the transfusion -- and he had had many transfusions before -- was an unexpected emergency, she said.

Responding to judges' questions, Zuckerman said the law has to be interpreted to protect a doctor or hospital that revives a patient in good faith.

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