Informed Consent, Termination of Medical Treatment, and the Federal Tart Claims Act-A New Proposal for the Military Health Care System

• Author: by Captain Stephen E. Deardorff
• Pages: 01

1545 hours, Friday, 13 September 198X, Tort Branch, Litiga. tion Division, Office of The Judge Advocate General, Washington, D.C. The staff judge advocate, Fort Leonard Wood. Missouri, reports that the local hospital commander has been served with a temporary restraining order preventing the removal of Sergeant First Class Gary Brawn from mechanical lifesupport systems. A few days earlier, Sergeant Brown's military doctors, believing him to be terminally ill with no hope of recovery, contacted his spouse. Jane Brown, to get her permission to remove the lifesupport equipment keeping Sergeant Brown alive. Pursuant to Army Regulation 40-3,' the physicians obtained Jane's written consent and wrote orders to remove all mechanical equipment and tubes from Sergeant Braan's body, to include intravenous IIVi and nasogastric (NGI tubes carrying nutrients. Before this could bedone, Sergeant Brown's eldest son filed suit seeking injunctive relief. He alleges that Mrs. Jane Brown is estranged from Sergeant Brawn and that he is the lawful next of kin.

FEDERAL TORT CLAIMS ACT-A NEW

'Judge Advocate Genera3 Corps, Umfsd Sfam Army. Currently airlgned as S p e d Assistant United Stales Attorney, Western Dlrtrxt of Texas. Formerly assigned a8 Bngade Legal Advisor and Legal Aisutance Offleer, V-I1 Colps. Ludwigsbmg. Federal Republic of Germany. 1981 to 1985, Senior Defense Counad. Stuttgart. Federal Repubhe of Germany. 1982 to 1984 Senio~ Trial Counsel and Adminmnariw Law Attorney. Gffm of the Staff Judge Advocate, Fort Gordon, Georgia. 1979 to 1982. Medml Servlee Corps officer, Munson Army Hospntal, Fort Leavenworth, Kansas, 1971 to 1976 enhifed service, 1970 fo 1912 B.S, Southwest Miasovrl %ate Unnernty. 1974: J.D., Urvversiiy of M~~rourl at

Kansas City, 1979. Honor Graduate. 34th Judge Advocate Officer Graduate Course. 1966 Graduate 90th Judge Ad%oeats Offimr Basic Course, 1979 Army Medical Dmartment Gificer Basic Course. 1975. Author of Cesenore Tiadthonoi

~~~ ~

Cbriaftcohdn of Enfrmfs on Land A More Flrribie Standard ZJ beeded. 16UYKC L Rev 162 119771. Member of the bars of the s f a ~ of Kanaas, the UnitedStates Dmuim Court for the District of Kansas. the Umled Stater Dminci Court for the Western Dmtiict of Texae, the Umtsd Staces Court of Appeals for the Fifth Cucuit, the United Stater Court of Ydlitary Appeals. the Unlted States Army Court of MLLary Review and the Lmted Stater Supreme Court Ths artrcle was Drlglndy suhmtied m sawsfacc~m af the thesis electrve of the 34th Judge Advocate Officer Graduale COYTJ$ Captan Deardarff was Lhe co.recipmnt of the award for the bear therir of the 34th Graduate Course

'Dep't of Army Reg No 40 3. Medical, Dsnral and Vetennary Cue 115 Feh

19851 [heremafter AR 40.3).

1550 hours, Friday, 13 September 198X, Office of the Staff Judge Advocate. Fort Bliss, Texas. The claims officer advises the staff judge advocate that MIS. Elizabeth White, age twentyfour, has filed a $1,000,000 claim. Mrs. White alleges that she is an avid mateur athlete and that she can no longer participate in marathon racing due to the negligence of Colonel IDr.) Burgundy She claims to have developed urinary stress incontinence as a result of an abdominal hysterectomy performed by Dr. Burgundy on 22 April 198X-1. She does not claim that Dr. Burgundy erred in performing the surgery. Rather. she COmplainS that Dr. Burgundy did not tell her everything he should have told her. She alleges that, had he done so, she would not have had the surgery.

Dr. Burgvndy was first assigned to Fort Bliss land the state of Texas) on 31 March 198X.1. On 1 Apnl 198X-1, Mrs. White cme to the hospital complaining of severe abdommal pain. Medical tests revealed that she probably had a malignant ovarian cyst. Dr Burgvndy properly advised her of the need for immediate surgery and of the scape of the necessary procedure. He informed her that he might have to remove her ovaries and her uterus. Mrs. White asked Dr. Burgundy to perform the operation and to do whatever he believed was necessary. Dr. Burgundy returned to his office and dictated a detaled summary of his conversation with Mrs White. He obtained Standard Form 5W2 the Army consent form, from the Patient Administration Division and rerurned to Mrs. White's room. He explained the form to her and answered all of her questions. She voluntarily signed the form The next morning he skillfully performed a total abdominal hysterectomy. Pathology later confirmed the presence of cancer.

Texas statutes require the use of a specific form and the disclosure of specific information about abdominal hysterecto. mies.3 Dr Burgundy WBS not aware of this. Some hospital personnel were aware of Texas law, having been repeatedly cautioned by the Fort Bliss legal office. Few of the doctors have attempted to comply with Texas law. Instead. they have chosen to rely upon the eonsent provisions set out in Army Regulation 40.3.'General Sen Admn 8 Inreragency Camm on Medxal Records. Standard Form 622 Requesr far .4drnmmfr~~1mof Anerfheaia and far Performance ai Operations and Other Procedures lOct 19161 [heremafter SF 6221

For I defslled diicusiron of how Teras iL~cuLe9 provide for a cause of actron aguunsr rha doctor far lnlure to use these procedures. QBIinfm notes 251 6 306.and accompanying text See also infra Appendix A af the Addendum to chis BlflCk

19871 INFORMED CONSENT

1655 hours, Friday, 13, September 198X, the Staff Judge Advocate, Fort Lee, Virginia calls the Administrative Law Division, The Judge Advocate General's School, Charlottesdle, Vir. ginia. far assistance. His hospital ethics panel representative is at the Fort Lee hospital and in need of help. Lieutenant Colonel iretiredl Green is in the hospital and is terminally ill. She has been pleading with her doctors to let her die. She has a very painful farm of lung cancer which is causing her to very slowly drown in her own body's fluid, The strain on her heart has caused two cardiae arrests in the last 24 hours. Each time she was defibril. lated "back to life.'' Her husband and two children are not emotionally ready for her to die and have therefore argued that she is not competent to request a do-not-resuscitate IDNRI order due to the intense pain she is suffering. Colonel Green's doctor says she is competent, but the chief of the Medical Department agrees with the family. The hospital commander has ordered the ethics panel to decide whether Colonel Green is competent and whether they should implement a DNR order. The Staff Judge Advocate's representative wants to know if they have the authority to decide these issues and, if so. does it require a unanimous vote?

1. INTRODUCTION

   It seems that similar issues, involving civilian hospitals, are now appearing in the news media about once a week. The Army has not been significantly involved with these issues inasmuch as military doetars have not had reglliatory authority to write termination of medical treatment orders.' Recently. however, the Army incorporated procedures far do-not-resuscitate orderss and removal of life-support equipment into its regulations.6 Given this,

   'But me Tune v Ualfer Reed Army Medlcal H o w 602 F Supp. 1462 ID D.C.19851 Mrs Tuna uai a 71-year-old. Lermlnally dl cancer patlent who was being kept i v e by a respnalot She wanted the respwmr ltseonnected IO chat she could die Although che doetars were sympaLhmc to her wishes. Army pohcy precluded withdrawl of any bfesvpport system once II waa placed in operation and. as B federal mstitutmn, Walter Reed Army Medical Center wm not subject to the Distcict of Columbia Safural Death Act A gusrdan d 1rt.m was appovlted to B ~ C B ~ L Q ~ D

   Mri Tune'! state of health, her demes, and her competence. AU

   members of Lhe family were in accord xrlh the pstmt'l wmhes The Army concurred m all but rhe p~ayer for rehef and even waived appellate iewew prior to the court's decision The court granled the patienCs petition and ordersd that she be removed from hie-support systems

   'AR 40-3. chap 19.'Enclosure to Dep t of Army Lecter. DASG-PSQ. subject. Withdrawal af LifeSust-g Treatment. 30 Aug 1885 [heremsiter End DASG.PSQ Letter 1190611 The letter wax pvhhshed by ordsr of The Secrrrary of the Amy LO provide pohc) and procsdures for the withdrawal of Life-suslnning treatment with Army

   and the extent of the Army's medical business, It would not be surprising for the above hypotheticals to become actual events in our military hospitals in the near future.'

   The do-not.resuscitate and removal.of.life-supporf issues are part of a larger, more general medical-legal doctrine-the informed consent doctrine. To properly decide the correct course of action for situations similar to those stated above, doctors. lawyers, and hospital commanders must first understand the doctrine of informed consent. Military litigator8 and claims officers must be able to apply the doctrine to ca~es arising under the Federal Tort Claims Act

   In Tune U. Walter Reed Army Medical Hosp~tal.~the Army's

   leading case on removal of lifesustaining equipment, the court relied heavily on a leading informed consent case, Canterbury u Spenee.'@ in stating that 'it is the patient. not the physician, who ultimately decides if treatment-an) treatment-is to be given at

   The Tune court concluded that "a competent, mature patient ha8 a right to be fully informed of rhe possible eansequences of a course of treatment before he permits the medical ministrations to begin."'2 In other words, the informed consent doctrine was an integral part of the courrs decision to remove lifesupport equipment.

   In this article, I will present a succinct digest of state informed consent law and review the impact of state law on litigation arising under the Federal Tort Claims discuss the Federal Tort Claims Act's discretionary funetmn exceptionL4 and the probability that the Army can effectively avoid State informed consent law in Army medical malpractice cases: examine the adequacy of the Army's current...