Wrongful Living

• Author: Alberto B. Lopez & Fredrick E. Vars
• Position: Professor of Law at the University of Alabama School of Law/Ira Drayton Pruitt, Sr. Professor of Law at the University of Alabama School of Law
• Pages: 1921-1976

1921

Wrongful Living

Alberto B. Lopez & Fredrick E. Vars*

ABSTRACT: Executing an advance directive that specifies a patient’s wishes

regarding end-of-life medical care is an exercise of self-determination—a

conscious choice about the degree and type of medical intervention one wishes

to receive under end-of-life circumstances. Empirical studies, however,

consistently report that healthcare professionals fail to comply with advance

directives; violations of a patient’s interest in self-determination are

alarmingly common. From a practical perspective, the conduct of either

patients or healthcare professionals may make an advance directive

unavailable, which results in noncompliance. Legally, courts have

historically rejected claims for “wrongful living” associated with the

prolongation of life that results from unwanted medical intervention. As a

result, healthcare professionals fear the liability threatened by a wrongful

death claim more than the legal exposure risked by keeping an individual

alive despite a contrary mandate in an advance directive.

In response to practical concerns regarding availability, this Article proposes

the creation of a nationwide registry of advance directives and argues that

sanctions for violations of professional responsibility as well as the risk of

liability for legal malpractice encourage utilization of the proposed registry.

To realign the skewed legal incentives, this Article argues that the compensable

harms associated with battery and negligence claims filed in lieu of “wrongful

living” claims should include the loss of enjoyment of life. Because damages

for loss of enjoyment of life are rarely mentioned by courts or scholars in the

context of violating advance directives, this Article describes loss of enjoyment

of life damages and argues that such damages should be compensable in the

same manner that tort law compensates for similar injuries that lack an

objective market value. In combination, the practical and legal proposals

incentivize compliance with an advance directive and thereby expand the

protection afforded a patient’s interest in self-determination.

*

Professor of Law and Ira Drayton Pruitt, Sr. Professor of Law, respectively, at the

University of Alabama School of Law. Thanks to David Zeitlin for excellent research assistance.

1922 IOWA LAW REVIEW [Vol. 104:1921

I.INTRODUCTION ........................................................................... 1922

II.JUSTIFYING THE LEGAL RECOGNITION OF

ADVANCE DIRECTIVES ................................................................. 1930

A.A BRIEF LEGAL HISTORY OF ADVANCE DIRECTIVES .................. 1931

B.PHILOSOPHY AND ADVANCE DIRECTIVES ................................. 1936

III. IMPROVING ACCESS TO ADVANCE DIRECTIVES ............................ 1939

A.EXISTING METHODS TO INCREASE ACCESSIBILITY

—ADVANCE DIRECTIVE REGISTRIES ....................................... 1940

B.CENTRALIZING AN ADVANCE DIRECTIVE REGISTRY .................. 1950

C.INCENTIVIZING REGISTRATION ............................................... 1956

IV.COMPENSATION FOR VIOLATIONS OF ADVANCE DIRECTIVES ...... 1965

V.CONCLUSION .............................................................................. 1975

I. INTRODUCTION

The Hippocratic Oath, which dates from the 4th Century BC, represents

“an expression of ideal conduct for the physician.”1 As part of its prescription

for “ideal conduct,” the ancient Oath commands physicians to keep patients

“from harm and injustice.”2 Updating the traditional injunction to keep

patients from amorphous “harm and injustice,” the contemporary Oath

frequently commands physicians to avoid the specific “traps of overtreatment

and . . . nihilism.”3 Two recent physician-authored books, however, cast

substantial doubt on how well medical professionals adhere to the Oath’s

mandate regardless of its phrasing. In his best-selling book Being Mortal, Dr.

Atul Gawande asserts that a physician’s default impulse is to continue

treatment because “rarely is there nothing more that doctors can do.”4 The

consequence of medical decision-making by default can be substantial

because aggressive treatment could be “devastating to a person’s life” or what

is left of a person’s life.5 More graphically, Dr. Jessica Nutik Zitter’s Extreme

1. Peter Tyson, The Hippocratic Oath Today, PBS (Mar. 26, 2001), http://www.pbs.org/

wgbh/nova/body/hippocratic-oath-today.html.

2. Id.

3. Id. Interestingly, the Hippocratic Oath is commonly thought to include the phrase

“First, do no harm.” However, the Oath does not include such a phrase. See Robert H. Shmerling,

First, Do No Harm, HARV. HEALTH PUB.: HARV. HEALTH BLOG (Oct. 14, 2015, 11:27 AM),

https://www.health.harvard.edu/blog/first-do-no-harm-201510138421.

4. ATUL GAWANDE, BEING MORTAL: MEDICINE AND WHAT MATTERS IN THE END 173 (2014).

5. Id. at 220.

2019] WRONGFUL LIVING 1923

Measures warns that unthinking implementation of medical procedures places

patients on an “end-of-life conveyor belt.”6 At the end—literally—patients are

“often comatose, tied down, and sedated” while “tethered . . . to machines” as

part “of a mechanized death.”7

To derail the journey toward “the end of life conveyor belt,” statutory law

provides individuals with an opportunity to decide how end-of-life care should

proceed, if at all, by executing an “advance directive.” The generic phrase

“advance directive” refers to various legal instruments—such as a living will or

a durable power of attorney for healthcare—that permit an individual to

document wishes regarding future healthcare decisions.8 Each of these

instruments is governed by state law. Predictably, state statutes vary not only

in the requirements for execution but also in which specific documents are

recognized as legal instruments. For example, Massachusetts is one of three

states that recognizes an individual’s authority to designate a person to make

future healthcare decisions on her behalf in the form of a healthcare proxy,

but does not recognize living wills.9 Despite differences, one basic policy

serves as the foundation for all state statutes: Individuals have a right to

control their healthcare decisions, including the decision to forego or cease

life-sustaining treatments.10 Complying with the individual’s decision respects

the individual’s dignity, especially where medical treatment may serve only to

prolong the process of death while “providing nothing medically necessary or

beneficial to the person.”11 In short, advance directives protect individual

6. JESSICA NUTIK ZITTER, EXTREME MEASURES: FINDING A BETTER PATH TO THE END OF LIFE

19–26 (2017).

7. Id. at 33, 45.

8. See, e.g., 42 C.F.R. § 489.100 (2017) (stating that “a written instruction, such as a living

will or durable power of attorney for health care, recognized under State law . . . relating to the

provision of health care when the individual is incapacitated”).

9. Important Differences Between Health Care Proxies and Living Wills, MASS. MED. SOC’Y,

http://www.massmed.org/Patient-Care/Health-Topics/Health-Care-Proxies-and-End-of-Life-

Care/Important-Differences-Between-Health-Care-Proxies-and-Living-Wills/#.WfaPVkyZOYY

(last visited Feb. 17, 2019).

10. CAL. PROB. CODE § 4650(a) (West 2009); see also, e.g., IND. CODE 16-36-4-6 (West 2007)

(“A competent adult has the right to control the decisions relating to the competent adult’s

medical care, including the decision to have medical or surgical means or procedures calculat ed

to prolong the competent adult’s life provided, withheld, or withdrawn.”); N.J. STA T. ANN.

§ 26:2H-54(a) (West 2018) (“Adults have the fundamental right, in collaboration with their

health care providers, to control decisions about their own health care unless they lack the mental

capacity to do so. This State recognizes, in its law and public policy, the personal right of the

individual patient to make voluntary, informed choices to accept, to reject, or to choose among

alternative courses of medical and surgical treatment.”).

11. CAL. PROB. CODE § 4650(b); see also, e.g., N.J. STAT. ANN. § 26:2H-54(b) (“Modern

advances in science and medicine have made possible the prolongation of the lives of many

seriously ill individuals, without always offering realistic prospects for improvement or cure. For

some individuals, the possibility of extended life is experienced as meaningful and of benefit. For

others, artificial prolongation of life may seem to provide nothing medically necessary or

beneficial, serving only to extend suffering and prolong the dying process. This State recognizes