The current state of advance directive law in Ohio: more protective of provider liability than patient rights.

AuthorTyminski, Marie Ortman
  1. INTRODUCTION II. THE GROWING NEED FOR ADVANCE DIRECTIVES A. The Misuse and Fear of Futile Medical Treatments Have Increased the Need for Written Advance Directives B. The "Evolution" of CPR and Its Impact at the End of Life C. Medical Malpractice Liability Influences the Provider's Decision of Whether to Administer Futile Medical Treatment D. Conclusion of the Growing Need for Advance Directives III. HISTORY OF THE RIGHT TO REFUSE MEDICAL TREATMENT A. History of the Right to Refuse Medical Treatment Outside of Ohio B. History of the Right to Refuse Medical Treatment in Ohio 1. The Leach Case 2. The Modified Uniform Rights of the Terminally Ill Act IV. INSUFFICIENT COMMON LAW CAUSES OF ACTION IN OHIO A. Negligence 1. Allore v. Flower Hospital 2. Anderson v. St. Francis Hospital B. Battery 1. Anderson v. St. Francis Hospital 2. Allore v. Flower Hospital C. Intentional Infliction of Emotional Distress and Perkins D. Conclusion of Ohio's Insufficient Common Law Causes of faction V. PROPOSAL TO PROTECT THE OHIO PATIENT'S RIGHT TO AUTONOMY A. Repeal Civil Statutory Immunity and Codify a Patient's Right to Seek a Remedy B. Repeal Criminal Statutory Immunity C. Recognize a National Advance Directive D. Encourage Awareness of a National Living Will Directory E. Conclusion of Proposals to Protect the Ohio Patient's Right to Autonomy VI. CONCLUSION I. INTRODUCTION

    Edna Marie Leach was a healthy, energetic, seventy year-old woman who lived with her husband, Gifford, in a modest home near Akron, Ohio. (1) Edna and Gifford had two grown children who no longer lived with their parents. Edna maintained close relationships with her children and her siblings, and she had many friends in the community. (2)

    One day, Edna began suffering from lower back pain, followed by muscle weakness in her lower body. She began walking hunched-over and finally visited a physician to seek treatment for her ailments. Edna was diagnosed with a progressive, disabling disease of the nervous system, named amyotrophic lateral sclerosis. (3) Edna's physician informed her that this disease was terminal and would eventually physically incapacitate her. Edna's physician estimated that she would die from the disease within three to five years.

    Following her diagnosis, Edna informed family members and friends that she did not wish to be kept alive by artificial means, such as machines. She stated that the idea of being kept alive by machines terrified her. Edna made similar statements to her husband, sister, two cousins, and various friends. One month after her diagnosis, Edna's health rapidly deteriorated. Shortly after being admitted to a local hospital for respiratory distress, Edna suffered a cardiac arrest. Cardiopulmonary resuscitation (4) was successfully administered, and a respirator was surgically inserted into her trachea to facilitate breathing. A nasogastric tube was also inserted into her stomach to facilitate the administration of nutrition.

    Edna's physicians diagnosed her as being in a permanent, chronic, vegetative state. (5) Despite protests by Edna's husband and children of her intentions to not be kept alive in that state, Edna's physician informed her family that according to Ohio law, "life support could only be terminated by a court order." (6) Five months later, after an evidentiary heating that included the testimony of seventeen witnesses, (7) a court order was issued directing the termination of Edna's life support. (8) Three weeks after the order was issued, Edna's respirator was finally disconnected, and she subsequently died. (9)

    Following Edna's death, her family sought to recover damages from the hospital for "pain, suffering, and mental anguish" (10) on behalf of their mother and themselves. (11) Additionally, her family alleged that the hospital administered treatments without proper consent. (12) Prior to the Leach family's lawsuit in 1980, Ohio courts did not have Ohio statutory or case law to guide them in their decision regarding whether a terminally ill patient had the right to refuse future medical treatment. (13) While the Leach family did not successfully recover damages at trial, the leach court was the first Ohio court to proclaim that the right to privacy, as encompassed within the United States Constitution, protected the right of a terminally ill patient in a permanent, vegetative state, to refuse medical treatment. (14)

    Because competent patients generally have the right to refuse medical treatment, a person has the option to express his or her wishes regarding future medical care in the form of a written document called an advance directive. In fact, many people plan for mental incapacity later in life by executing advance directives (15) that would take effect if they were declared incompetent as a result of disease or injury. (16) An advance directive sets out, in writing, a person's desires regarding medical treatment in the event that the person cannot orally do so as a result of a mentally debilitating disease or injury. It is a written declaration that a patient can use to accept or refuse future medical treatment. (17) When properly executed, an advance directive can be relied on by healthcare providers as a legal declaration of the patient's wishes.

    Edna Leach died almost twenty-five years ago. (18) Since that time, Ohio has adopted the Modified Uniform Rights of the Terminally Ill Act (19) which governs the use and execution of written advance directives as expressions of a patient's desire to consent to or refuse future medical treatment. However, the Act also includes a provision that grants both civil and criminal immunity to health care providers who do not comply with a person's written advance directive. Unfortunately, because of the grant of civil and criminal immunity encompassed within the adopted written advance directive statutes, Ohio law today does not afford any greater protection of a patient's right to refuse medical treatment at the end-of-life through the use of a written declaration than it did when Edna Leach's wishes, as orally conveyed by her family, were disregarded at the end of her own life. In 2006, Ohio citizens, when confronting their own end-of-life decisions and considering the use of written advance directives, cannot be certain that their families will be spared the grief that the Leach family endured while they watched their mother be kept alive against her wishes in 1980.

    This article will argue that Ohio law does not adequately protect an individual's right to autonomy when exercised through the implementation of an advance directive. In Part II, this article will examine the growing need for advance directives and attribute this need to the evolution of medical treatments, such as CPR, and the fear health care providers have regarding the inaccuracy and unreliability of a patient's orally expressed wishes regarding medical treatment as communicated through a patient's family members and loved ones. Part III will examine the history of the right to autonomy in Ohio, with specific emphasis on the Leach case and the Modified Uniform Rights of the Terminally Ill Act. Part IV will show how Ohio courts have undermined patients' rights to refuse medical treatment through the use of a written advance directive by prohibiting recovery to patients whose written advance directives have been blatantly disregarded and thus, have sued health care providers under Ohio's only permissible causes of action of negligence, battery, and intentional infliction of emotional distress. Finally, Part V will propose a four-part resolution, comprised of: repealing civil and criminal immunity; codifying a patient's right to seek a remedy; recognition of a national advance directive form; and encouraging awareness of a national living will directory.

  2. THE GROWING NEED FOR ADVANCE DIRECTIVES

    Patients can communicate their wishes regarding future health care decisions to health care providers through the use of advance directives in the form of either living wills or durable powers of attorney for health care, (20) which take effect in the event that the patient is declared incompetent. (21) While living wills expressly convey a patient's wishes to a health care provider in the event that the patient becomes permanently unconscious or terminally ill, durable powers of attorney for health care appoint an authorized person, such as a family member or loved one, to make medical decisions on behalf of the patient once a physician determines that the patient has become incompetent. (22)

    In most states, an advance directive must comply with certain formalities in order to be legally executed, and hence, deemed reliable by health care providers. An advance directive is intended to be a reliable and accurate reflection of a person's desires regarding difficult medical treatment decisions. Without a written document that clearly expresses an incompetent patient's wishes regarding medical treatment, the only method health care providers have to ascertain the patient's desires are the second-hand accounts of family members or loved ones. Because of the inherent reliability problems with second-hand accounts of a person's desires regarding difficult and emotionally charged medical decisions, health care providers often fear legal liability may arise if it were later discovered that the second-hand accounts were in fact inaccurate reflections of the patient's wishes. (23) Thus, advance directives are extremely useful as direct and reliable expressions of a patient's wishes.

    Because a patient must be legally competent in order to make a rational, informed choice regarding medical care, states may establish special procedural safeguards to protect incompetent patients from having treatment withheld that the patient, were she competent, would herself choose to consent. (24) Such safeguards may include, in the absence of a written declaration, the requirement of a court order, as in the case...

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