Wrongful Living

by Leona Egeland Siadek, Vice President, Government Relations

Wrongful living is a new cause of action that is alleged when a health care provider either intentionally or negligently interferes with an individual’s right to refuse medical treatment. The court system has thus far been reluctant to accept this tort in the same way it has “wrongful life” cases, but more jurisdictions are reviewing cases filed.

One leading case, Anderson v. St. Francis-St. George Hospital (1996), went before the Ohio Supreme Court. The plaintiff, Edward Winter, had chest pains and indicated that he wanted a do-not-resuscitate order to be on file. Despite that, a nurse at St. Francis-St. George Hospital revived him. Two days later he suffered a paralyzing stroke.

The court found that continued “wrongful” living was not a compensable injury. The court stated, “There are some mistakes, indeed even breaches of duty or technical assaults, that people make in this life that affect the lives of others for which there simply should be no monetary compensation.” Justice Moyer wrote that this decision should not encourage unwanted lifesaving treatment:

Where a patient clearly delimits the medical measure he or she is willing to undergo, and the health care provider disregards such instruction, the consequences for that breach would include the damages arising from any battery inflicted on the patient, as well as appropriate licensing sanctions against the medical professionals.

Some courts have indicated that there is no need to recognize wrongful living as a cause of action because the individual can bring an action for battery if medical treatment has been received against the patient’s orders. Bioethicists and medical lawyers have long debated whether anticipatory refusals of medical treatment should be accorded the same legal status as contemporaneous refusals. Recovery by a plaintiff for wrongful living does not affirm the value of the plaintiff’s life—it negates it. If recovery occurs, the conclusion is that life with impairments is objectively worse than nonexistence.

Wrongful living has been equated with denial of the right to die. Beginning in the 1970s, patients began to assert a right to refuse treatment. Individuals wanted to be allowed to die a natural death without undue dependence on medical technology. The movement demanded the “right to die with dignity.” Many state legislatures passed laws to protect the rights of an individual to refuse any medical treatment, and all 50 states have passed laws allowing a person to refuse life support technology.

With more reports of the widespread provision of unwanted treatment, we can expect to see more claims filed for both battery and wrongful living. Medical technology has increased life expectancy, but it often does not cure degenerative illnesses nor return the person to a fully functioning life.

Federal News

While a number of bills on a varied list of topics were drafted, vetted, argued, and even introduced, this session of Congress did not bring a single tort reform–related issue to a vote. There were, however, bills on OBGYN liability reform, health courts, universal health care, and electronic medical records. As late as September, Michael Burgess, MD (Texas-R), introduced a comprehensive medical liability reform bill (H.R.3509) to mirror the highly successful reforms passed in Texas. It is very doubtful that any of the bills introduced will be given a committee hearing.

The tort reform coalitions have been working behind the scenes to blunt efforts by the trial bar to undermine arbitration and make filing suits against corporations easier.

Clearly, health care delivery will feature heavily in the 2008 elections. Each major candidate will feel compelled to promulgate his or her plan. The public should hear much more about universal coverage, single payer systems, safety nets, and patient safety paradigms. In the midst of all the rhetoric from candidates, Congress, and states, we must all be cautious that a weakening of current tort reform statutes does not occur.

State News

There are few bills to report since the third quarter issue of The Doctor’s Advocate. Most state legislatures have adjourned, and the special sessions have mostly focused on budget issues. The exception is in North Carolina, where Governor Mike Easley (D) signed S.B.1671. This bill will limit total awards for medical liability cases to $1 million when both parties agree to binding arbitration. The new law will take effect on January 1, 2008.

This year the state of Washington enacted House Bill 5726 relating to lawsuits by policyholders against their insurers. If a court finds that an insurer has unreasonably denied a claim or broken a state rule governing settlement practices, the bill authorizes the court to increase the award of damages to three times the actual damages, and requires the court to award attorneys’ fees and litigation costs to a policyholder who prevails in a suit under this section. The bill applies to all insurers, not just medical liability insurers. Opponents of the bill argued that it would distort settlement negotiations and drive up insurance rates. After the bill’s enactment, opponents of the new law qualified a referendum for the November 2007 ballot. On November 6, 2007, after a bruising campaign with millions spent on each side, the majority of those voting chose to uphold the new law.

An end-of-session rumor in California of a threat to the MICRA cap brought a flurry of activity among MICRA supporters. While the threat did not become a reality, it coalesced groups ready to defend the landmark law that has become the nation’s standard for medical liability reform. A special session concerned with health insurance reform is being monitored closely to make sure that medical liability statutes remain intact.

Tort reform efforts are always two-fold. We endeavor to pass language to strengthen or add effective legal reforms to the statutes. But we must be forever vigilant in seeing that current statutes are not eroded. Given the political climate in many states and at the federal level, the job we face together is, unfortunately, in the latter category as we work to protect our members’ interests. In 2007, we were successful with defensive efforts in many states:

The trial bar was active in Alabama promoting a bill (H.B.865) to allow a suit to be filed on behalf of a deceased person by his or her representative; in Florida, two bills (H.B.733 and S.B.1558) were put forward that would have gutted the joint and several liability reform legislation passed last year; and in Illinois, a bill designed to change joint and several liability (S.B.1296) was also defeated. In Illinois, we worked to defeat S.B.747, a bill that would have required defendants to pay plaintiffs and their lawyers full amounts on expenses even though the plaintiffs themselves received a discount on the expenses.

In Maryland, three bills were defeated: H.B.110 and S.B.267, which would have changed the doctrine of contributory negligence with comparative fault while retaining full joint and several liability, and H.B.495, which would have repealed a current statute that requires a report of each party’s attesting expert for specified certificates concerning a medical injury filing.

In Nebraska, L.B.65 would have changed the current 10-year statute of repose to 20 years. S.B.969 in North Carolina would have extended the statute of repose from six to 15 years. New Hampshire had H.B.143, which would have adversely affected the joint-and-several liability reform statutes.

In Oregon, H.B.3075 was defeated. This bill would have created both first- and third-party private rights of action for an unfair claims settlement practice. S.B.745, another bad faith bill, was defeated in Pennsylvania. Texas had H.B.3281, a bill vetoed by Governor Rick Perry that would have revised the Civil Practice and Remedies Code relating to liability for medical expenses.

All of the above bills were followed and lobbied by the tort reform coalition. Fighting negative legislation takes a great deal of effort, and often the results go unnoticed. The environment for our members would have been considerably more intolerable had these bills passed.