AuthorClark, Nathaniel


"Here's the reality... everyone standing in this room is going to die one day, and it's good to have a little bit of a say in how." (1) This sentence, pronounced by Dr. Jessica Zitter to a roomful of healthcare providers in the intensive care unit (ICU) at Highland Hospital in California, emphasized to the providers the importance of acting in accordance with the wishes of their dying patients, to ensure that their lives ended on their own terms. (2) One of Dr. Zitter's patients, a woman named Donna, was attached to a ventilator, but painstakingly informed her family and doctor that she did not want to be kept alive by a machine--she did not want to exist "in limbo," as one of her family members termed it. (3) Another patient's decision was to try to fight on, in spite of her dire prognosis, as she could not bear to give up on her life yet. (4) Selena, another patient, never regained enough consciousness to convey her wishes, so her family had to make that decision for her, choosing to keep her on a breathing machine for six months until she died. (5) At the end of their lives, these patients or their families each made the decision about how they would die. That decision is one of the most fundamental choices an individual can make, and it is one that Dr. Zitter and other healthcare providers do their best to comply with, even in difficult situations where a person's choice is unclear. (6)

And yet, plaintiffs such as Elaine Greenberg have found themselves embroiled in lawsuits against hospitals, seeking damages for the harm their loved ones have suffered after their advance directives rejecting cardiac resuscitation, mechanical ventilation, or some other life-extending treatment are ignored. (7) In Ms. Greenberg's case, her husband's directive asking for comfort treatment only in the event of a terminal illness was ignored, and he spent the last months of his life "unconscious, diapered, in restraints and moaning in pain." (8) The comparison is stark: while Dr. Zitter and other doctors do their best to scrutinize the hand movements, head nods, and histories of patients fading in and out of consciousness to determine how that patient wishes to die, or have excruciating conversations with family members as to how they wish their mother or other relative would wish to be treated, other medical providers ignore advance directives handed to them that specify exactly how a patient would like to face his or her end. (9) When a patient provides a doctor with a document indicating that they have already thought about and made the excruciating decision as to how they want their life to end, why would a doctor ignore it--and, more critically, why would the law fail to enforce it?

It is a fundamental concept of law that every individual has the right to control what shall be done with his or her own body. (10) This concept of a right to privacy and autonomy in one's body "is a fundamental tort principle" that has been recognized since the late 19th century, (11) and has been especially central to the tort of medical malpractice. (12) In spite of this, individuals who make out valid advance directives, such as DNR orders asking that physicians not provide them resuscitative treatment, have often found those wishes ignored, (13) and have been denied damages stemming from the unwanted prolongation of their lives, (14) as many courts refuse them recovery on the grounds that being alive does not constitute an injury. (15) Some courts, however, have slowly begun to acknowledge the importance of the right to refuse treatment and have allowed recovery on these claims, recognizing that the right to choose one's own manner of death is in fact deserving of protection. (16)

Though some courts have begun to acknowledge these rights, others, such as those in New York, continue to hold that there is no recovery for patients in such situations. (17) The reticence to allow recovery for wrongful prolongation of life ignores the enormous implications of extending the lives of seriously ill patients who do not want their lives extended, undermining their autonomy in their final days. This reticence also directly conflicts with a patient's right to privacy and autonomy in their own body, a right that was first affirmed by the Supreme Court in 1891, (18) and reaffirmed in 1990. (19) This Note will examine the background of futile treatment and advance directives, the tort of wrongful prolongation of life and its key features, the legal environment surrounding the tort, and solutions for the reticence of the court system to protect an individuals' right to determine their own end. In doing so, it will argue that courts must move past the traditional rejection of recovery for wrongful prolongation of life actions, as such rejections go against individuals' rights to privacy and autonomy and rob individuals of the chance to have any say in the end of their lives.


    1. Why Patients Create Advance Directives

      Before examining the legal aspects of this right and why courts must protect it, it should be made clear why patients choose to make out advance directives. Despite the advances of modern medicine, long term treatment for elderly individuals who require intensive care is not as effective as one might think. (20) When asked to describe such treatment by researchers from the Journal of Medical Ethics, one elderly patient referred to such treatment as "not what I consider life," while another said that "laying in bed staring at the ceiling all 24 hours a day and hav[ing] a tube running into you feeding you and a tube running out of you going to the bathroom... [is] not much of a life." (21)

      To put it simply, intensive care is not an effective method of treatment for patients at the end of their lives. Modern American healthcare "is best at managing acute crises and supplying specialized elective procedures," and much less effective when dealing with the slow and inevitable decline at the end of a person's life. (22) Instead of receiving treatment that makes the end of their lives easier, many patients are instead subject to "Death by Intensive Care," where they are "sedated... and subjected to... impersonal medical protocols in strange, disorienting surroundings[,] or stranded in limbo on life-support machines." (23) This type of so-called care is not only a grim way for a patient's life to end, but is also an ineffective method of treatment, as patients on life support machines have "poor long-term outcomes." (24) One study, for example, found that "patients requiring prolonged mechanical ventilation... had only a 50% chance of being discharged" from the hospital, and that 50%, once discharged, had a 55% mortality rate. (25) Overall, only 8% of the patients in the study returned to independence within a year of being on mechanical ventilation. (26)

      Moreover, physicians, those tasked with providing these end-of-life treatments, often identify intensive life-saving procedures as futile care. (27) For example, a Canadian study found that physicians considered care to be futile when certain factors, such as "ventilator support,... poor quality of life even in the event of survival from the immediate crisis, and an overall bleak prognosis" were present. (28) Furthermore, some of the respondents in the survey said that a "a prolonged length of stay in the ICU" was also an indication of futile care. (29) In fact, some physicians find this type of care to be so unhelpful to patients that they have begun advocating for another type of care for critically ill patients called "slow medicine," which attempts to "improve the quality of care" patients receive, and allow them to live as comfortably as possible in their remaining time, rather than subjecting them to intensive procedures designed to prolong their survival. (30)

      Ultimately, this is why patients choose to make out advance directives. They find the alternative, which involves receiving invasive care that is often ineffective and even acknowledged by doctors as futile, to be unpalatable. Many patients express a desire "to die at home" or "to let go when the time comes," but without advance directives, they experience neither. (31) Instead, they find that the modern healthcare system will subject them to invasive procedures that drag their lives out but do nothing to improve their quality of life and leave them, as one of Dr. Zitter's patients graphically demonstrated, pulling at the tubes keeping them alive in a vain attempt to communicate their desire to be let go. (32) This is why patients instruct doctors not to resuscitate them or place them on life-prolonging treatment--they do not wish to be dragged through the end of their life by ineffective and futile treatments.

    2. Background on Advance Directives

      At the heart of this right to make out an advance directive is the concept of autonomy, one of the four central principles of medical ethics and a central value in American law. (33) Autonomy is "the primary principle that governs medical decisions" and enables patients to control their medical treatment and thereby their own lives. (34) Patients' autonomy is protected in law by the law of informed consent. (35)

      Informed consent was developed to protect patients' rights to "receive sufficient information about the risks and alternatives of medical procedures" and allow them to control their own care. (36) Essentially, this doctrine provides that physicians who fail to receive informed consent from their patients breach their duties to those patients, and are liable to their patients for damages through negligence if a reasonable patient with the same information would have chosen to withhold consent. (37)

      This doctrine is a straightforward concept when the patient is capable of understanding the benefits and risks of a treatment and giving or denying consent. However, it becomes a more difficult proposition when the patient loses the capacity to understand...

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