Section 7: Principles of Medical Ethics and Medical-Legal Concepts

INTRODUCTION

Nearly 2500 years ago, the Hippocratic writers decreed in the Epidemics, Bk. I, Sect. XI, “Declare the past, diagnose the present, foretell the future; practice these acts. As to diseases, make a habit of two things—to help, or at least to do no harm.” The basic tenets of ethics apply to all medical specialties. The hospitalist-patient relationship depends upon a long-standing tradition of practices and manifestations of professionalism in which the physician places the interests of the patient above his or her own, and practices with competence, integrity, and beneficence. The context of care determines the application of ethical principles; however the ethical issues encountered in Hospital Medicine share with other forms of medical practice a rich history in bioethics, social movements, and landmark court cases.

The nature of the doctor-patient relationship and the new dichotomy of the inpatient and outpatient settings continue to evolve as specialized care becomes more localized to geographic areas such as the emergency room, intensive care unit, most recently, general medical units, and in the future, the medical home. This fragmentation of the clinical encounter into a unit of hospitalization represents a departure from the time-honored, and almost mythic, longitudinal doctor-patient relationship of general practice and primary care.

Unlike the classic doctor-patient relationship, decision making in the hospital is generally more harried and of a more critical nature. This may jeopardize the doctor-patient relationship if patients do not understand the role of hospitalists, perceive that their primary care physicians have abandoned them, or have questions of trust due to cultural differences or other factors. Dedication to ethical practice preserves stability in a “crisis” and promotes a culture of trust necessary for advocacy and a sound doctor-patient relationship.

Ethics, expertise, and availability of the hospitalist may help balance patient-centered obligations with the need to efficiently manage interventions. Hospitalists should not make initial assumptions about their patients’ priorities without first evaluating each patient with a fresh perspective. Communication with the patient’s outpatient provider, familiarization with the medical record, and meetings with patients and their family or friends who may have essential information to share during the patient’s illness are both good clinical care and congruent with ethical practice.

The ethical mandate to optimize cooperation, or comanagement, between doctors and other members of the health care team is an essential element of the hospitalist model. In hospitals different professional specialties have traditionally functioned, often in isolation. Hampered care coordination—and the splitting of the clinical team—potentially compromises the therapeutic relationship. However, the hospitalist’s appropriate use of consultants, awareness of one’s sphere of practice, and appreciation for continuity of care sustains trust. Being transparent and sharing the results of consultations with patients and their families promotes a trusting and effective doctor-patient relationship.

This chapter will review key ethical concepts and standards in the context of Hospital Medicine and explain the role of ethics consultation to facilitate patient care.

HOSPITAL ETHICS COMMITTEES AND ETHICS CASE CONSULTATION

The Joint Commission requires that hospitals develop and implement a process to handle ethical issues in patient care, but it does not specify how this should be done. Typically, an ethics consultant—alone or as a small team—or the full ethics committee may conduct consults. Ethics committees consist of physicians, nurses, social workers, attorneys, theologians, and others representative of the immediate community that the hospital serves. Ideally, the committee should have specific members capable of ethics mediation. Importantly, the role of ethics committees is advisory. Through mediation, ethics consultants usually make recommendations rather than prescribe solutions to resolve conflict. Ethics committees consult on a range of issues across the life cycle helping patients, families, and staff grapple with challenging questions that require expert assistance.

COMMON INDICATIONS FOR ETHICS CONSULTATION

INFORMED CONSENT AND REFUSAL

Informed consent is the ethical lynchpin of modern medical ethics in which the dialogue between the patient and physician preserves the patient’s voice in directing care. Respect for persons grounds this doctrine. Informed consent promotes autonomy and patient self-determination as an interpersonal process between physicians and patients to select an appropriate course of medical care, with the patient critically assessing his or her own values and preferences (Table 33-1).

Once a patient has made a choice, ongoing consent maintains the moral warrant permitting clinicians to infringe upon the patient’s zone of privacy. Patients who provide consent retain the ability to revise that decision and withdraw it.

Informed consent imposes responsibilities on both the patient and the hospitalist but also creates opportunity to build a trusting doctor-patient relationship. A properly executed informed consent depends upon mutual respect, good communication (involving adequate, accurate, and relevant information provided in a form and language the patient can understand), and shared agreement about the course of medical care. A relationship forged through the informed consent process can facilitate realistic patient expectations and help prevent disputes. Barriers to the informed consent process include:

• Poor Care Coordination. Mixed communication, or even contradictory information to the patient and/or family, may cause confusion and undermine care decisions.

• Fragmentation of Care. Lack of clarity about one’s overall condition may also encumber the patient’s ability to make informed choices.

• Adaptation to the New Set of Potentially Limited Choices. Prolonged hospitalization or progressive illness may displace the patient’s sense of autonomous decision making; it requires both the patience and compassion of the hospitalist to help the patient understand how the experience of hospitalization might influence the response to illness.

A clinician claiming to have “consented the patient” mistakenly prizes outcome (agreement to a proposed procedure) over process (a clear and informed decision whether that choice resulted in the acceptance or refusal of a treatment). The importance of the informed consent process is the act of deliberation in making a sound medical choice (Table 33-2).

Concern about patient decision-making capacity typically occurs with refusal rather than with agreement of a proposed therapy. A clinician may equate treatment refusal with loss of decision-making capacity because the decision challenges the doctor’s expert recommendation. However, under the rubric of self-determination, patients retain the right to refuse treatments and physicians have a corollary obligation to ascertain that the patient understands the consequences of that choice. Mere refusal of a recommendation does not mean a patient lacks capacity for decision making.

The philosopher James Drane developed a tool to assess a patient’s capacity for making choices. Invoking a “sliding scale of competence,” Drane linked the increasing gravity of a patient’s decision with a progressive degree of explication. If a patient were to refuse life-sustaining therapy, he would have to more fully demonstrate his reasons, rationale, and appreciation of the consequences than if he were refusing an elective procedure. The level of decision-making capacity should be in accordance with the risks and benefits of the decision to be made. These reasons can be founded on personal, religious, or cultural beliefs. The stringency of the standard of capacity at each level correlates with the dangerousness of the treatment decision. Refusal of care by a capacitated patient who is well informed needs to be respected, even if that refusal would lead to serious harm. This is ethically supported by the principle of autonomy and legally by the patient’s right to privacy and dominion over one’s self.

Every effort should be made to discern the patient’s rationale for refusal of recommended treatment and counter any misinformation with appropriate facts. Ethics consultation may help resolve ethical issues when treatment refusals are made by a surrogate, on behalf of an incapacitated patient.

TRUTH TELLING AND SHARING BAD NEWS

In our pluralistic society, some patients may prefer nondisclosure of medical information. In traditional Japanese culture, withholding of medical information is the norm founded upon ishin denshin, the Japanese term for the nonverbal communication of the truth. Many Islamic societies operate with less doctor-patient dialogue and a greater reliance on cultural and contextual clues in order to implicitly, versus explicitly, communicate information to the patient. In such contexts of overt nondisclosure, patients eventually deduce their status because they observe the nature of their treatments and the reactions of those around them (Table 33-3).

Part of the art in doctor-patient communication is titrating generic advice to the particular patient’s willingness to know and use information. The burdens and benefits of “truth telling” and breaking bad news are weighed against the information necessary to make an informed treatment choice.

Approach the patient by stating that in this country standard practice requires sharing all medical information with the patient, unless he decides to delegate the dialogue and the implicit authority to make choices using that information to a surrogate as the health care agent.

If a patient requires emergent treatment, physicians can provide care to a patient who is unable to provide consent when no surrogate is available to provide authorization. The ethical foundation for this provision of care is grounded in the legal notion of the “emergency presumption” first articulated by Benjamin Cardozo when he was chief judge of the New York State Court of Appeals in Schloendorff versus the Society of the New York Hospital in 1914. In this landmark decision, Cardozo articulates and anticipates the modern notion of informed consent and opines that urgent and necessary treatment can occur in the absence of consent by a patient when such treatment is necessary. If the patients recovers and regains capacity or if surrogates become available, physicians should disclose the rationale and nature of the emergent treatment. These discussions should not impede the urgent provision of care.

THERAPEUTIC EXCEPTION OR PRIVILEGE

On that rare occasion when the risks associated with disclosure outweigh the benefits, practitioners can deliberately withhold information counter to the patient’s self-determination and right to know. Typically, such a deviation from standard practice, referred to as “therapeutic exception” or “privilege,” would involve a severely depressed patient who might become suicidal with grievous news. We recommend that a psychiatrist and the local ethics committee participate in determining the need to limit disclosure.

ADVANCE DIRECTIVES

Seventy percent of seriously ill patients are unable to decide treatment options at the end of life. The majority of these patients do not have advance directives at the time of hospitalization. By taking on discussions at the onset of care, practitioners can establish a doctor-patient/family relationship and mitigate many ethical dilemmas that could ensue should the patient deteriorate. These discussions should occur ideally within a framework that prospective planning can be emotionally fraught. To guide these discussions it is best to first identify goals of care and then determine the desirability of specific diagnostic and therapeutic interventions.

Advance directives allow the patient the opportunity to specify preferences in advance of incapacity through a living will and/or designate a surrogate to speak on his behalf as a “durable power of attorney” or “health care agent” or “proxy.” With an advance directive, an incapacitated patient can be treated in accordance with his prior wishes. Such advance care planning can decrease speculation about what the patient would have wanted and decrease the moral angst associated with the proxy role, a burden that is often understated (Table 33-4).

When there is no surrogate (a health care agent appointed by the patient or a guardian appointed by a court), ethical norms and the law assign standing to these surrogates:

1. The patient’s spouse (and in many jurisdictions to domestic partners)

2. Thereafter, a relative such as an adult child, parent, sibling

3. Finally, in some jurisdictions, a close friend

Each state has its own hierarchy for this prioritization. We recommend the use of a health care agent over a living will, when the patient can identify a trusted surrogate. In the living will, an adult with capacity sets forth directions regarding medical interventions and other actions that should or should not be taken in circumstances if he becomes incapacitated. A living will document may contain inherent contradictions and fail to anticipate possible scenarios. In contrast to a living will, a designated surrogate through a health care proxy or durable power of attorney allows for more dynamic decision making and provides an individual who can interpret the patient’s prior wishes in light of evolving circumstances and the patient-proxy covenant.

All 50 states recognize an advance directive as an extension of the patient’s voice under the Patient Self-Determination Act (PSDA) of 1990, which requires health care institutions that participate in Medicare and Medicaid programs to ask patients whether they have an advance directive, inform patients of their right to complete an advance directive, and incorporate advance directives into the medical record.

Surrogates make decisions for incapacitated patients according to three distinct decision-making standards: patients’ expressed wishes, substituted judgments, and best interests. When invoking substituted judgment, the surrogate places themselves in the shoes of the patient and tries to make a decision as the patient would. When neither knowledge of expressed wishes nor inference of substituted wishes exist, the surrogate makes a decision based on what a reasonable person would make, balancing benefits, and burdens.

Even when surrogates consider the patient’s values, the stress of the surrogate role coupled with family dynamics and imprecise prior patient wishes can lead to morally ambiguous situations. Conflicts can also arise between surrogates of equal standing, such as two sisters who cannot agree on their mother’s care. A rigid hierarchical approach to surrogate decision-making oversimplifies a process that is complex, dynamic, and personal. When two surrogates disagree, ask them to set aside their own preferences and articulate what each believes is in the patient’s best interest. This minimizes potential conflicts of interest and may lead to a concordance of views. When this approach fails, hospitalists may give ethical—if not legal—precedence to that surrogate who has been assuming more of the care responsibilities.

Sometimes the conflict about goals of care arises from an incongruity between a written directive and an oral one. Given the objective reality of documentation, deference will more likely be given to a previous written rather than verbal directive, even if more contemporaneous verbal preferences emerge—which ethically would take precedence. Hence, all practitioners should clearly document, in the medical record, any and all expressed preferences on the part of the patient. The discharge summary should include documentation of advance care planning as a guide to future care.

Physician Orders for Life-Sustaining Treatment where available also provide means of expressing patient near end-of-life treatment choices. Patients and their clinicians complete and together sign this order set when the patient has a 1-year life expectancy with understanding of the patient’s current clinical condition and potential complications. These medical orders are valid across treatment locations, from home/nursing home/hospice to emergency medical services to hospital emergency/inpatient units. The orders address whether to attempt resuscitation in the event of cardiopulmonary arrest, and how aggressively to manage intercurrent illness or disease progression, such as, medical interventions including intensive care with invasive monitoring, aggressive intervention short of intensive care (especially mechanical ventilation), or care directed toward hospice; orders may also include whether to use feeding tubes or antibiotics. Some states give POLST order the statutory authority of an advance directive. Regardless, the orders provide direct expression of patient choices to guide treatment when a patient lacks capacity, until so confirmed with the surrogate or the recapacitated patient.

While POLST orders can be useful, like living wills they can contain contradictions. Our preference for advance care planning is through the use of a designated surrogate decision maker, when available, to allow maximal responsiveness to real time challenges in the care of the decisionally incapacitated patient.

ETHICS CONSULTATION AT THE END OF LIFE

Establishing clear goals of care and having a working awareness of the inherent conflicts and biases that may arise at life’s end can help prevent conflict and enhance patient care at a time when comfort and tranquility are at a premium. Decisions to accept or refuse life-sustaining therapy are all predicated upon the aforementioned principle of self-determination as exercised through a process of informed consent or refusal. Clinicians need to distinguish responsibility and culpability when considering their role in helping patients die comfortably.

WITHHOLDING LIFE-SUSTAINING THERAPY: DO NOT RESUSCITATE ORDERS OR ALLOW NATURAL DEATH

Causality is least complex in cases where a decision is made to withhold life-sustaining therapy (LST). By withholding LST, we mean a decision not to institute an intervention that could prevent death or prolong a dying process. The prototypic example of withholding LST is a do-not-resuscitate (DNR) order, which, in the hospital setting, means the forgoing of cardiopulmonary resuscitation (CPR) or basic cardiac life support (BCLS) as well as advanced cardiac life support (ACLS) to patients who have sustained a cardiopulmonary arrest. When a patient, health care agent, or other surrogate consents to a DNR order, an intervention will not interrupt the natural course of events. In such cases, the cause of death is clearly the underlying disease process.

Unlike other interventions, to withhold CPR requires consent, based on the emergency presumption of providing care if consent cannot be obtained. Traditionally, physicians are obligated to perform CPR unless the patient has agreed to or requested a DNR order, which constitutes an informed refusal.

Essentially, all patients who undergo cardiopulmonary arrest receive CPR unless the patient or their surrogate consents to a DNR order. When a patient or surrogate provides consent, the order should be clearly placed into the medical record and the medical and nursing teams informed in a standard manner. The patient’s DNR status should travel with the patient when he or she goes off the floor and be readily available for consultation should an event occur. A DNR order should be reviewed periodically and may be reversed by the patient at any time and by the surrogate decision maker if the decision does not undermine a patient’s decision while capacitated.

Seventy to 80% of deaths occur with DNR orders in place for hospitalized dying patients. In the modern hospital, DNR orders take many forms, ensconcing the patient’s negative right to be left alone. Despite the prevalence and resonance of a dying patient with DNR orders on a general medical ward, DNR orders do not preclude other treatments or interventions. DNR solely applies to decisions about cardiopulmonary arrest. Ethically, patients with DNR orders may receive care in the intensive care unit (ICU) or in the operating room. DNR status should be honored across specialties and not impede access to appropriate palliative care if it can only be offered through an intensive care or operative intervention. Indeed, some assert that to condition appropriate care upon the presence or absence of a DNR order is patently unethical.

In practice, institutions vary in their triage of patients with a DNR order regarding ICU or surgical care or other interventions requiring intubation such as endoscopy. The Task Force of the American College of Critical Care Medicine and the Society of Critical Care Medicine argues against ICU admissions, for example, noting that: “ICU admissions should be reserved for patients with reversible medical conditions who have a reasonable prospect of substantial recovery.”

Significant variation may relate to how to precisely identify patients who have a “reasonable prospect of substantial recovery.” Moreover, if allocation or scarce resources (eg, ICU beds) or cost containment motivates triage decisions, adherence for individual clinicians creates ethical conflicts because of their primary fiduciary obligation to the patient. Existing data suggests that the presence of a DNR order at the time of MICU consultation was significantly associated with the decision to refuse a patient to the MICU.

Because any arrest during surgery could be considered reversible, secondary to the procedure, physicians, patients, and/or surrogates should discuss DNR status prior to surgery. We echo the recommendation of the American College of Surgeons for a process of “required reconsideration” of the preexisting DNR order as part of the informed consent process for surgery. If the patient or surrogate rescinds the DNR order perioperatively, a decision is made to reinstitute it upon arrival in the recovery room or at a specified time interval after surgery.

If the patient, or surrogate, wants to maintain a DNR status during the procedure, this must be documented in the preoperative consent. If the patient dies in the OR, it is considered an “expected death” under the rubric that DNR situations result in the patient’s demise. In some institutions, the physicians may find honoring an intraoperative DNR order to be against their conscience. In these cases, there should be a provision of conscientious objection and removal from the case, so long as the primary physician responsibility of nonabandonment is not breached.

Both decisions to treat patients with a DNR order in the ICU or in the surgical suite ultimately hinges on achieving clarity about the goals of care. In each care decision, a conflict may exist between a negative right to be left alone (the DNR order not to resuscitate) and the positive right to needed care. This balance of negative and positive engagement makes sense when the goals cohere, such as in the example of a palliative colostomy for an obstructing colon cancer. In that case, the surgical diversion is meant to provide comfort to a dying patient who had a DNR order, an ethically balanced plan of care.

In summary, the choice to forgo cardiopulmonary resuscitation supports the patients’ right to refuse medical care even if this refusal leads to death. Notably, surrogate decision makers make approximately 80% of DNR requests. Hospitalists and primary care physicians are encouraged to initiate DNR discussion with the patient or proxy as soon as possible, preferably not when patients are immediately faced with cardiopulmonary cessation and imminent death.

THE DO-NOT-INTUBATE (DNI) CONUNDRUM

Do-Not-Intubate (DNI) or partial DNR orders compromise the integrity of practitioners because they imply resuscitation without intubation as a medically efficacious intervention despite the marginal effectiveness of comprehensive cardiopulmonary resuscitation itself. Most patients who have asystole or a ventricular tachyarrhythmia requiring cardioversion and/or chest compressions will also need intubation. Restoration of a viable cardiac rhythm places clinicians in the untenable position of being unable to fully complete resuscitation efforts.

In our experience, a DNI decision suggests ambivalence about goals of care, that is, a desire to survive without remaining on a ventilator for a protracted period of time. We recommend that these patients be fully resuscitated and also complete an advance directive that would allow a withdrawal of the ventilator if they were to linger beyond an aforementioned time limit.

Some patients or their surrogates would choose to be DNR but desire intubation in nonarrest situations in order to “pull through an illness.” This might occur in the management of a COPD exacerbation, acute congestive heart failure, or pneumonia. Analogous to patients who are DNR in the OR, such patients want to be palliated (as per the aforementioned, diverting colostomy for obstructive colon cancer) or treated for potentially reversible conditions (sepsis) while setting limits on resuscitation should they deteriorate and sustain a cardiac arrest or complete respiratory failure. Intubation of patients with DNR orders might be regarded as a time trial.

WITHDRAWING LIFE-SUSTAINING THERAPY

Accepted as a norm, dating from the blue-ribbon President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, no ethical distinction exists between withholding and withdrawing treatment. The statement that the removal of LST device causes a patient to die, especially if the death is closely related temporally, is a misconstrual of causality. Withdrawal of LST simply removes an impediment to death. The intent is freedom from interventions that are perceived as burdensome. Death after refusal or withdrawal of an intervention results from the underlying disease. A decision to withdraw life-sustaining therapies may be challenging due to:

• Transference and counter transference often embedded in end-of-life decisions

• Physicians reluctance due to a misconstrued view that there is an ethical, and certainly psychological, difference between withholding and withdrawal of LST

• A sense of failure or sense of culpability

• Uncertainty about prognostication

• Inadequate communication with patients and/or surrogates about goals of care

• Differences between how physicians and lay people view these decisions

State and federal law regulate who is entitled to authorize the plan when the patient cannot speak for himself regarding a decision to withdraw LST. In the wake of the US Supreme Court decision in the Cruzan case and the federalism of the aforementioned Patient Self-Determination Act, each state can set an evidentiary standard about the amount of evidence from the patient’s prior wishes or values, if known, necessary to permit a surrogate to authorize withdrawal of LST. Although the Supreme Court in Cruzan observed that there is no difference between the withdrawal of artificial nutrition and hydration and the withdrawal of a ventilator, some religious traditions view the provision of food and water as normative obligations that require a higher degree of foreknowledge of the patient’s wishes.

MEDICAL DEVICES AT LIFE’S END

The philosophical and legal status of implantable medical devices has been a source of confusion in clinical practice amongst hospitalists. These devices, which include automated implanted cardioverter defibrillators (AICDs) and permanent pacemakers (PPMs) may engender ambivalence in the clinician. They can be viewed as a treatment, comparable with external medical devices like dialysis machines or ventilators, or they may considered similar to a biologic transplant, like a liver or lung transplant. The distinction, if not properly understood can lead to the perception that neither physician nor patient has the ability to withhold or withdraw the effects of the device. It is critical to appreciate that the patient—or in the setting of decision incapacity, the surrogate—retains the ability to deactivate or remove these devices under the rubric of informed refusal.

When AICDs and PPMs only provide standby interventions, we view deactivation of their resuscitative role as withholding of care. In contrast, when a patient is paced continuously by a permanent pacemaker, either in a PPM or as a function of the AICD, or uses a left ventricular assist device, deactivation is defined as a withdrawal of LST. Deactivation decisions should adhere to evidentiary decision-making standards as consistent with applicable state law, and ethics consultation may provide expert guidance. In our view, consider disabling the AICD and/or the episodic functions of the PPM when a patient or surrogate consents to a DNR, given the similarity between internal and external defibrillation.

RELIEF OF SUFFERING AND PALLIATIVE SEDATION

Suffering is defined as an existential threat to the self and distinct from pain. Palliative sedation is defined as the use of specific sedating medications to relieve intolerable pain and suffering from refractory symptoms, even at the risk of death. Palliative sedation aims to control symptoms rather than to end life; archaic, misleading terminology such as “terminal sedation” should be avoided. Palliative sedation provides different levels:

1. Ordinary sedation (for relief of heightened anxiety or stress without reduction of consciousness)

2. Proportionate sedation (for reduction of patient’s awareness of distressing symptoms with the minimum dose necessary to promote the patient’s ability to engage with his family and his immediate environment)

3. Palliative sedation to unconsciousness (when less extreme measures have not relieved suffering)

The initiation of palliative sedation to unconsciousness often invokes ethical dilemmas due to confusion about physician-assisted suicide or euthanasia. The doctrine of double effect, originating from Catholic theology, refers to the doctrine where a physician uses a treatment, or gives a medication, for an intended effect where the potential outcome is good (eg, relief of a symptom), knowing that there could be an undesired secondary effect (such as death). Double effect distinguishes between the ethically mandated goal of treating intolerable patient suffering from hastening death by engaging in physician-assisted suicide or euthanasia. In all circumstances, the degree of sedation must be proportional to the severity of suffering and is given only after the patient and or surrogate have completed the informed consent process and agree. Having noted the importance of disclosure and shared decision making, we do not believe that surrogates have the moral authority to limit the provision of analgesia, including the provision of palliative sedation or general anesthesia, if they are the only means by which to ensure the patient’s comfort. We assert that the right to pain management is a basic human right that can not be abridged by surrogate intervention. When there is a disagreement on the scope and level of pain management it is best to involve the expertise of the ethics committee and palliative care consultants.

MEDICAL INEFFECTIVENESS (FUTILITY)

Broadly defined, medical futility can be broken down into several domains:

• Physiologic futility (when it is absolutely—or to a reasonable degree of medical certainty—impossible to achieve a physiologic effect such as CPR in the setting of persistent acidosis)

• Qualitative futility (when the patient’s physiology may improve, but there is no patient-centered benefit)

• Quantitative futility (when the intervention has not worked in similar patients within an accepted confidence interval)

Disagreement about the effectiveness of ongoing care may evoke strong emotions on the part of patients, families, and physicians entrusted to provide care. Multiple prior admissions when the patient “pulled through” despite negative odds, many clinicians with disparate views about aggressiveness of care at the end of life, communication failures, and cultural differences all contribute to a family’s view of the patient’s overall condition, prognosis, and how they would want him to spend the end of his life. Clinicians should try to prevent these disputes through ongoing communication during the course of the illness, to be reflective about the implicit force of one’s countertransference and avoid mixed messages from different physicians by ensuring coherent comanagement.

The best way to overcome fragmentation is to have a meeting including all key clinicians involved (physicians, social work, nursing, etc), significant others designated by the patient, and family members. The aim of the discussion is to create a comprehensive factual understanding of patient’s condition and prognosis. Then, after achieving a broad understanding of the medical facts, a fruitful discussion regarding both family and clinician expectations can ensue over the course of multiple meetings.

Ultimately, the imperative for members of the health care team rests on exploring the intricacy of their patient’s history and values and appreciate that many surrogates may be reluctant to immediately accept a physician’s prediction of medical futility. In these circumstances, clinicians should ask the surrogate to make judgments believed to be in the patient’s best interest and to articulate goals of care. On many occasions a surrogate may desire something that is unachievable through the provision of care. Having the surrogate articulate these goals provides an opportunity for reality testing and an occasion to redirect a beneficent impulse, so long as practitioners appreciate why they are so potentially distressed by family demands for interventions perceived by the treating team as medically ineffective.

The increasing complexity of medical decision making often necessitates the assistance of an ethical consultant (or consulting committee). These consultations tend to be utilized by physicians who believe in shared decision making. Providers who do not utilize these services tend to believe that it is their responsibility to resolve issues with patients and families and that they are already proficient in ethics. These self-assessments may not reflect the physician’s knowledge, skills or ability to mediate ethical disputes in clinical practice and thus practitioners need to cultivate a reflective stance toward the utility of ethics consults in order to best serve patients and their families.

CONCLUSION

The hospitalist model was founded on the premise that it could improve inpatient medical care. Ensuring that a model founded on efficiency and cost-effectiveness does not in any way compromise the primacy of the patient requires a familiarity with bioethics and legal precedent as well as a willingness to call upon clinical ethics consultants and hospital ethics committees when their role in the institution places them in a potentially integrity-compromising situation. These conflicts can be best understood and managed through interdisciplinary consultation and collaboration.

At the epicenter of inpatient care, hospitalists should maintain clarity, mediate misunderstandings about the diagnosis, prognosis, or goals of care, and minimize the opportunity for conflict to arise by organizing the medical team, without dominating it—all in the service of patient-centered care. Hospital ethics consultants and committees stand ready to provide assistance and remind us of the centrality of patient beneficence in all its many forms.

ACKNOWLEDGMENT

The authors acknowledge the coauthorship of Heather X. Cereste, MD, FACP of this chapter in the prior edition of this text.

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INTRODUCTION

Advance directives, such as living wills, health care powers of attorney, do-not-resuscitate orders, and mental health care directives, are written legal documents that offer patients the opportunity to reflect upon and provide direction for their future medical care. They are important and useful tools to facilitate discussions between patients, family members, and physicians about end-of-life care choices, and they provide guidance and legal protection in those situations when a patient is no longer capable of declaring care preferences, when critical and difficult treatment decisions need to be made. Following an advance directive facilitates making end-of-life care decisions at the patient’s bedside rather than through contentious court proceedings. More importantly, advance directives are legal mechanisms that reinforce the fundamental professional and moral responsibility of health care providers and institutions to promote and protect patient autonomy, welfare, and dignity.

This chapter offers an introduction to advance directives, examining the general structure of the various types of advance directives, when they may be triggered, what clinical circumstances and decisions they may cover, and the relative strengths and weaknesses of the different advance directive instruments. Every state has laws describing the types of advance directives available in its jurisdiction, the processes by which such documents may be created and triggered, how and where they can be employed, and the legal protections afforded to care providers and health care facilities that carry out care decisions when guided by such documents. These laws may be supplemented by policies and procedures adopted by your local hospital or health care facility to direct the use of advance directives in your particular setting. Given the unique idiosyncrasies found in different state laws and different facility policies, hospitalists should note that not all varieties of advance directive instruments may be available locally, and the processes used to carry out a particular advance directive may diverge from what is described in this chapter.

CONCEPTUAL FOUNDATIONS

The 1960s and 1970s saw a movement toward greater patient participation in health care that resulted in new ways to ensure shared decision making between patients and their physicians. During this time, dramatic medical and technological advances underscored the importance of recognizing and incorporating the goals and values of all patients, while ethicists, the courts, and others came to a consensus that a decisionally capable patient has the right to accept or refuse any type of medical care. However, many persons feared a loss of control may occur if they became incapacitated and unable to make their own medical decisions. As a result, patients and potential patients became increasingly aware of the need to make provisions for their own future medical treatment.

PATIENT SELF-DETERMINATION ACT

In 1990, the US Supreme Court heard the case of Nancy Cruzan, a 33-year-old woman diagnosed in a persistent vegetative state after a car accident in 1983. In the case of Cruzan v. Commissioner, Missouri Department of Health, 497 US 261 (1990), Nancy’s parents sought to have the feeding tube removed and allow Nancy to die. The Court found that decisionally capable patients have the right to refuse life-sustaining therapies, including nutrition and hydration. However, the Court also indicated that states could require third parties acting on behalf of patients who are no longer decisionally capable to submit evidence of the patient’s wishes before granting a request to withdraw life-sustaining treatment.

Partly in response to the Cruzan decision, Congress passed the Patient Self-Determination Act in 1990. This law attempts to make it clear that patients have the right to make decisions regarding their medical care. This includes the right to accept or refuse treatment and the right to complete an advance directive as evidence of their wishes. The law requires any health care provider participating in Medicare or Medicaid to provide all persons over the age of 18 with written information regarding the patient’s right to accept or refuse treatment and right to complete an advance directive. Providers include hospitals, nursing homes, home health care providers, hospices, and health maintenance organizations, but not outpatient-service providers or emergency medical personnel. The Patient Self-Determination Act also requires health care providers to document whether patients have advance directives, establish policies to implement advance directives, and educate their staff and the community about advance directives. Patients should also be informed that having an advance directive is not required to receive medical care.

UNIFORM HEALTH CARE DECISIONS ACT

After the Cruzan decision, significant changes occurred in state laws across the United States regarding health care decision making. While every state passed legislation authorizing the use of at least one form of advance directive, there was very little uniformity between the laws. By 1993, state laws regarding health care decision making were often fragmented, incomplete, and sometimes inconsistent. Statutes in one state frequently conflicted both with other statutes from the same state, and with statutes from other states. With this confusion in mind, the Uniform Health care Decisions Act (UHCDA) was drafted in 1993. Under the UHCDA, any adult or emancipated minor may execute or provide an “advance health care directive,” which refers to either a “power of attorney for health care” or other “individual instruction.” If an individual fails to execute a power of attorney for health care or if the agent is not available, the UHCDA authorizes health care decisions to be made by a “surrogate” to be selected from a priority list. The Act also recognizes an individual’s authority to define the scope of any instruction or agency as broadly or as narrowly as the individual chooses.

ADVANCE DIRECTIVES

Advance directives empower individuals to make their goals, values, and treatment preferences known before a loss of decisional capacity may occur. The term advance directives refers to oral or written instructions about a person’s medical care that provide guidance regarding medical treatment to health care professionals if and when the patient becomes unconscious or otherwise unable to make his or her own decisions. All 50 states, either through statute or case law, have provisions for honoring advance directives. Despite this, different jurisdictions utilize different standards, terminology, and limitations of authority. Physicians should become familiar with the local requirements for completing and honoring a legal advance directive.

The legal requirements for a valid advance directive vary from state to state, but in general any adult or emancipated minor with decisional capacity can execute an advance directive. In some rare instances an advance directive may have an expiration date, however, in general an advance directive remains in effect until such time as the patient revokes it. Different states have different requirements for validly revoking an advance directive, but most recognize a decisionally capable person may revoke an advance directive at any time simply by making the intention to revoke clear to a lawyer or health care provider, either verbally or in writing.

Because of the additional effort required to complete a written directive, the written directive is generally held to have more power than oral statements; however, this should be evaluated on a case-by-case basis.

NONCONFORMING DOCUMENTS

While many state statutes contain standard or recommended language for advance directives, people are introduced to advance directives from a variety of sources, including financial planners, senior organizations, national agencies, and religious organizations, not to mention the Internet. Most state statutes explicitly acknowledge that versions of advance directives that do not contain the recommended statutory language, as well as some oral statements, may also be valid. Such nonconforming directives cannot be dismissed just because they do not contain the language recommended by statute. Evaluating directives that do not conform to the recommended language found in state statutes requires physicians to determine, with the assistance of the ethics committee or legal counsel if necessary, whether a nonconforming directive meets the state’s standard of reliability. In other words, is it clear that the patient intended to document his or her wishes with the intention that such documentation would be relied upon and followed by the health care team? Such seriousness of purpose can be demonstrated by a variety of means including if the document contains the patient’s signature, if the document is witnessed, if the document was presented to the physician by the patient as an advance directive, or if the patient discussed the document with family members as evidence of the patient’s wishes.

ADVANCE CARE PLANNING

When advance directives first came into existence, they were viewed as legal documents offering legal protection from unwanted treatment at the end of life. As the practice of medicine has become more patient centered, a greater focus has emerged on ensuring all medical decisions are not only clinically sound, but also based on the patient’s personal goals for care. Advance directives are best thought of as the result and documentation of a patient-centered process aimed at extending the rights of patients to guide their medical care, even through periods when they are no longer able to directly participate in decisions about their own care.

Optimally, before completing an advance directive, individuals will have the opportunity to have a structured discussion with their physician or other clinician about their health care wishes and goals. Ideally, these conversations are held before the patient becomes ill, even though physicians cannot discuss with specificity every scenario that may occur. Advance directives may simply contain general preferences, or they may contain specific instructions about particular treatments. Those that contain only general preferences can be less helpful in guiding care than those with specific instructions because general preferences can require more interpretation in light of the current medical evidence. For example, a patient’s statement “I don’t want to live hooked up to machines,” may mean the patient’s does not want CPR, or it may mean the patient wants all aggressive therapies until such time as those therapies fail to restore the patient to an acceptable quality of life. A comprehensive process of advance care planning includes a discussion of possible or likely scenarios based on the patient’s unique medical situation, a discussion of the patient’s values and goals, documentation of the patient’s values and goals, and a way to ensure that this information is available to present and future care providers. The advance directive as a document provides a legally recognized way to record this discussion.

TYPES OF ADVANCE DIRECTIVES

Although state statutes vary, there are three basic types of advance directives: instructional, such as living wills; proxy, such as a power of attorney for health care; and combination directives, which provide both instructions for care and name a proxy to make decisions.

INSTRUCTIONAL ADVANCE DIRECTIVES

Instructional directives provide consent or refusal for specific treatments that may need to be utilized when the patient is unable to make the decision, traditionally at the end of life (Table 34-1).

Living wills

Living wills are the most common instructional directive. A living will directs physicians to withhold or withdraw life-sustaining measures and to provide only comfort care if the patient has a terminal illness and life-sustaining measures are prolonging the dying process without a chance for recovery. The living will thus addresses only a small subset of medical situations and critics cite the typically vague language and difficulty physicians have predicting with certainty when a patient is at the end of life as primary reasons that the document has fallen out of favor in terms of utility. Nevertheless, the document can be helpful as a starting point for further discussion, and it serves as evidence of a patient’s values, specifically that there are certain outcomes the patient would not wish to pursue. The living will is also a useful document for persons who do not have a designated agent or proxy since it speaks directly to the physician and does not require the consent of a designated agent or proxy in order for the physician to take action.

Some jurisdictions have placed restrictions on how the living will may be invoked. For example, Illinois and Missouri do not permit the withdrawal of artificial nutrition and hydration if the withdrawal would be the proximate cause of death (rather than the patient’s terminal condition). Most states also have provisions invalidating the document if the patient is pregnant, and some states dictate that the power granted to a designated agent such as a power of attorney for health care takes precedence over the power provided in the living will. Physicians should refer to the specific statutes in their state for guidance.

As the first widely known advance directive, the living will is the most well known and physicians should be aware that many patients refer to all advance directives by the name “living will,” and others may confuse the living will with a last will and testament. Care should be taken to verify the exact type of directive(s) the patient may have.

Do-not-resuscitate orders

Do-not-resuscitate (DNR) orders have become increasingly common in the care of the dying patient. The decision whether to resuscitate a patient who suffers a cardiac or respiratory arrest involves consideration not only of the potential clinical outcomes, but also the patient’s preferences regarding the intervention and if the likely outcome is one that would be desired by the patient. In order to streamline care from the inpatient to outpatient setting, a majority of states now have legislation permitting the use of out-of-hospital DNR orders. These DNR orders are physician orders that direct health care professionals across all emergency, living, or health care settings to withhold or withdraw (if treatment has already begun in absence of the form) specific types of life-sustaining treatment, such as CPR or defibrillation, in the event of a respiratory or cardiac arrest.

Physician’s orders for life-sustaining treatment (POLST)

POLST stands for physician’s orders for life-sustaining treatment, and the POLST form has been adopted by several states (some states such as New York use the acronym MOLST for medical orders for life-sustaining treatment). POLST addresses the desire some persons may have, particularly those persons who are experiencing a chronic or life-limiting illness, to avoid unwanted emergency medical care like CPR or a transfer to the hospital. POLST takes advance directives a step further by not only documenting a patient’s treatment preferences, but also providing emergency and other medical personnel with clear physician orders to follow in the case of an emergency. Depending on the state, the POLST form has three or four sections outlining the patient’s desire to have or refuse CPR, whether the patient would like to be taken to a hospital, and the types of medical interventions desired by the patient, including the provision of comfort care, antibiotics, or artificially administered nutrition. In those states that have adopted the POLST paradigm, the orders are valid in all emergency, living, and health care settings. If a patient presents the POLST document in a state that has not adopted the POLST paradigm, the document should be interpreted as strong and reliable evidence of the patient’s known wishes regarding treatment.

Other types of instructional directives

Other types of instructional directives allow individuals to refuse specific therapies, such as blood transfusion or dialysis, for persons who have specific desires to refuse those types of therapy. For example, many Jehovah’s Witnesses do want blood or blood products administered under any circumstances, even though death may be an outcome of the refusal. The instructional directive provides evidence of the patient’s wishes, and many will specifically release the physician from any liability for following the directive.

PROXY ADVANCE DIRECTIVES

Proxy advance directives such as the power of attorney for health care allow a patient to appoint another person over the age of 18 to make health care decisions in circumstances when the patient is unable to make those decisions for himself or herself. The proxy advance directive is not limited to end-of-life decisions and is therefore a more useful document for the vast number of decisions that can be encountered throughout the lifespan. The only requirement before the instrument takes effect is the patient must lack decisional capacity regarding the decision at hand. Physicians should note that because decisional capacity is decision specific, a patient may have the capacity to make some decisions, but require assistance to make other types of decisions.

The person appointed by a power of attorney for health care is called a power of attorney or an “agent.” Because a power of attorney has been directly appointed by the patient, a power of attorney typically has broad authority to make the same kinds of decisions as the patient unless that authority has been limited by the patient or by statute. Thus, in most states, a power of attorney can accept or refuse any type of treatment. Because the power of attorney can execute a broad range of powers, health care professionals and others should ensure the appointment of a power of attorney is executed without coercion or duress. Some states require the power of attorney to accept the agency in writing, while others restrict agency to a single individual in order to minimize the chances that disagreement or differences of opinion between two or more agents stall medical decisions. Physicians should refer to the specific statutes in their state for guidance.

COMBINATION ADVANCE DIRECTIVES

There is a growing trend in advance directives toward allowing persons to combine instructions regarding treatment preferences with appointing a decision maker to make proxy decisions. Many state forms now allow persons completing an instructional form to also specify or appoint a power of attorney at the same time. It is important to note that while many combination forms grant the proxy decision maker broad powers of decision making, the document may also contain a limitations or exclusions section that limits the types of decisions that the proxy decision maker can make on behalf of the patient.

Psychiatric advance directives

Psychiatric advance directives allow persons with mental illnesses to engage in advance planning with their physicians regarding potential future care. Persons with mental illnesses retain the right to refuse treatment, as long as they do not pose a serious risk of harm to themselves or others. However, during an acute episode of psychiatric illness an individual may become unable to make or communicate decisions about treatment. A psychiatric advance directive allows currently competent patients who may experience an acute episode of psychiatric illness in the future, to agree in advance to treatment they may refuse later when ill. Unlike many other types of advance directives that focus on empowering the patient to refuse unwanted interventions, psychiatric advance directives are generally “opt-in” documents where the patient may preconsent to inpatient hospitalization, medication, or other helpful treatment modalities. In addition to offering a clear written statement of an individual’s treatment preferences, the psychiatric advance directive can also be used to assign decision-making authority to another person while the individual is incapacitated. Correctly executed and implemented directives not only promote individual autonomy and empowerment, they can eliminate the need for court involvement and assist in recovery by communicating to the physician and others the types of treatments that have or have not worked for the person in the past.

“Five wishes”

“Five wishes” is a combination advance directive introduced in 1996 that has become popular because of its easy-to-read language. It introduces the subjects of a living will, power of attorney, comfort care, spirituality, and other personal matters such as forgiveness and memorial plans in the form of five distinct but overlapping “wishes.” The first two wishes—”the person I want to make care decisions for me when I can’t” and “the kind of medical treatment I want or don’t want”—are intended to serve as legal documentation fulfilling the requirements of many states’ living will and power of attorney statutes.

HONORING ADVANCE DIRECTIVES

Today’s health care providers, and physicians in particular, have the simultaneous responsibility of respecting patients’ autonomous choices while protecting from harm those patients who are incapable of making an authentic or informed decision. For patients with variable or fluctuating capacity, circumstances may arise where the patient is capable of being involved in some, but not all, decisions. The minimum standard for decisional capacity is directly related to the risk involved in the decision. Thus, a patient may legitimately consent to a low-risk procedure such as a blood draw or CT scan, but need assistance with more complex decisions such as whether to have surgery. The presumption is that a coherent care plan should be established around the patient’s known wishes whenever possible.

INFORMED CONSENT

Informed consent is, with rare exceptions, required before treatment can be provided to a patient. In order for consent to be valid, it must be given voluntarily in light of accurate and relevant information—in a language intelligible to the recipient—regarding the risks, benefits, and alternatives of the proposed interventions. In addition to providing information that the average reasonable person might desire, it is important that patients receive sufficient information within the priorities that have the most meaning for them. For instance, some religious belief systems require or preclude certain forms of medical treatment. Other patients may want to know how incapacitated they may be after a surgery, or how long they must wait before driving. Valid consent also requires the person giving consent to have sufficient decisional capacity to make the decision at hand.

DECISIONAL CAPACITY

There are relatively few guidelines informing physicians and others when to conduct and document an explicit assessment of an individual’s decisional capacity. However, assessments of decisional capacity should be ongoing and not restricted to instances where the patient disagrees with a physician’s recommendation for treatment. Assessment and documentation may be warranted whenever the individual consents to complex or high-risk interventions, when the patient makes choices that do not appear prudent or when the decision is outside the patient’s norms, or when the patient has marked cognitive deficits or other risk factors for impaired decisional capacity.

It is important to note that because capacity may fluctuate over time, physicians may be dealing with a proxy decision maker for some aspects of treatment, and directly with the patient for other aspects. When reasonable, important decisions should wait until the patient regains decisional capacity (if expected), and decisions made by others should be reviewed with the patient if and when he or she regains capacity. The presumption is that patients can make their own decisions until they demonstrate otherwise. Therefore, each decision should be put before the patient and if the patient concretely demonstrates that he or she is unable to make the particular decision at hand, this should be carefully documented in the patient’s medical record. Many jurisdictions also require documentation of the reason for the patient’s incapacity and its expected duration.

Decisional capacity is functionally defined in light of a specific decision. As the risk of a proposed intervention increases, so too does the threshold standard for decisional capacity. For instance, the capacity needed to consent to routine labs would be lower than the capacity required for consent to open heart surgery. Grisso and Appelbaum have put forward the most frequently used model for assessing decisional capacity standards 1 to 4 in Table 34-2.

Some commentators have also indicated that under certain circumstances it may be prudent to add the fifth criterion, particularly if the decision being made by the patient represents a radical or abrupt change in treatment goals, or does not conform to what is known about the patient values or other decisions.

COMPETENCE AND DECISIONAL CAPACITY

Decisional capacity and competence are not synonymous. Competence is a legal designation that must be made by a court, whereas decisional capacity is determined by a physician or other clinician. Not all patients with a developmental, cognitive, or mental illness have impaired decisional capacity, even if they have been declared incompetent or have been appointed a guardian. On the contrary, there is significant variability in the decisional capacity among these patients. The examining clinician should evaluate each patient’s capacity in light of the particular decision at hand.

PROXY DECISION MAKING

Physicians respect a patient’s autonomy by recognizing that the patient’s right to accept or refuse treatment remains even after he or she loses decision-making capacity. Patients who have lost decisional capacity may continue to communicate through their advance directives, or through a power of attorney or surrogate who interprets what the patient would choose in a given situation.

When medical decisions need to be made for a patient who lacks decisional capacity, physicians should first inquire whether the patient has documented any wishes in a written advance directive such as a POLST form or a durable power of attorney for health care. Optimally, the patient will have documented preferences that directly relate to the proposed treatment. However, this rarely happens. More commonly, a third party is necessary to represent the patient’s interests and interpret the patient’s known wishes and values in light of the current medical situation. If the patient has designated a decision maker in an advance directive such as a power of attorney for health care, the designated agent should be relied upon to make decisions. If the patient does not have a power of attorney or some other document that directs care, such as a POLST form or living will (or those documents exist but do not apply to the situation at hand), a surrogate should be appointed.

SURROGATE DECISION MAKING IN THE ABSENCE OF ADVANCE DIRECTIVES

Many states have established protocols for identifying a legal third-party decision maker in the absence of a documented advance directive. This third-party decision maker may be called a proxy or a surrogate, depending on the state. Most patients have not completed an advance directive and there should be no presumption inferred from the fact that an advance directive has not been executed. The guiding principle in appointing any surrogate is to find the person, or group of persons, who best know the patient’s values and health care goals. This person or persons should be able to effectively communicate with the health care team, and be willing to make choices the patient would most likely make if he or she could speak for himself or herself.

Where they exist, state statutes generally indicate the family of the patient should be responsible for making medical decisions. The order of priority for appointing a surrogate is listed in Table 34-3. While “family” is generally recognized as a biological or legal relationship, most states have not specifically addressed more complicated relational ties such as when the patient has full siblings, half siblings, and step siblings who all consider themselves to be close relatives of the patient on the same level of the surrogate hierarchy. If more than one person has the same level of priority (such as several adult children), consensus is preferred, but many states allow for a majority decision when consensus cannot be reached. The disagreeing party then has the option of turning to the court to assist in resolving the dispute. In states that do not appoint surrogates by statute, case law may offer guidance, or the physician or ethics committee can nominate the decision maker according to the standards of the institution.

Guiding standards

Two basic principles should guide treatment decisions for decisionally incapable patients: respecting and promoting the patient’s autonomy, and fostering the patient’s well-being. All surrogates and care providers have an obligation to follow the informed verbal or written wishes of the patient and to act in the person’s best interests. They should also take into account the person’s values and goals if those are known. Three legal and ethical standards have been established to guide such decisions: (1) The highest standard is a directly relevant autonomous directive where the patient’s wishes in regard to the decision at hand are known, either through documentation or discussion. (2) The most common standard used is substituted judgment where the proxy decision maker is tasked with making the decision he or she believes the patient would have made in this situation based on what is known about the patient’s wishes, personal values and preference, and goals. (3) In the best interest standard, the patient’s wishes are unknown or have never been known (such as cases involving infants), and the proxy decision maker must weigh the risks and benefits of all of the alternatives and make a decision that achieves the greatest net benefit from the perspective of the patient.

Confidentiality and HIPAA

Although medical care has always included the need to keep patients’ medical information confidential, the Health Insurance Portability and Accountability Act (HIPAA) has further specified and codified the responsibility of health care providers. In order to make effective decisions, proxy decision makers need information about the patient’s medical history and care. HIPAA regulations recognize this and entitle duly documented proxy decision makers to the same medical information as the patient in regard to the decision at hand. However, physicians should disclose only that information needed by the proxy to make an informed choice regarding the decision at hand. If possible and/or when directed by the patient, physicians should avoid discussing highly personal information such as sexually transmitted diseases, HIV status, chemical dependency, mental illness, or any history of sexual or physical abuse, unless such information is absolutely necessary in order for the proxy to make appropriate and informed decisions.

Scope of authority

The exact scope of a surrogate’s decision-making authority varies by state. Patients may also document certain limits on the kinds of decisions that may be made by their surrogate. For example, some living wills state the surrogate decision maker cannot override specific instructions such as a request not to receive CPR. Some state laws also suggest the patient must assent to, or minimally not refuse, decisions made by the surrogate. This offers a layer of protection to those patients who may not reach the threshold for decisional capacity with respect to the decision at hand, but who are still aware of and engaged with what is happening to them. When there is disagreement between the patient and surrogate, and a clinically appropriate compromise that is acceptable to both parties cannot be found, it is advisable to contact the hospital’s ethics committee.

Because the surrogate is often an individual whom the patient has not explicitly appointed to the role of decision maker, many states place restrictions on the types of end-of-life decisions that can be made by the surrogate. Broadly speaking, these restrictions may require the attending physician and one additional physician to document that the patient has a “qualifying condition,” such as a terminal illness or permanent unconsciousness, before honoring a request by the surrogate to withhold or withdraw life-sustaining treatment.

Generally, a proxy decision maker for a decisionally incapable patient may conduct routine medical affairs for the patient including consulting with the patient’s health care providers, providing verbal or written consent for medical procedures, applying for public benefits such as Medicare or Medicaid, authorizing the release of information and clinical records needed for continued care, and authorizing the transfer of the patient to or from health care facilities. Care should be taken that such activities are warranted by the patient’s clinical condition, do not conflict with the patient’s known wishes, and that they are undertaken by the proxy only when it is not expected that the patient will be returned to a decisionally capable state in the time necessary to assure continuity of care.

Conflicts

Occasionally, situations arise in which a surrogate makes a decision or requests an intervention that conflicts with either the patient’s advance directive or other instructions the patient provided to the care team while the patient was still decisionally capable. For instance, it is not uncommon for a patient’s child to request CPR be provided even when the patient has specifically requested a DNR order. Plans and treatment goals previously established between the patient and the physician should not be changed without concrete evidence that those decisions were made due to factual, conceptual, or clinical error. The primary responsibility of the physician is to the patient, and decisions made after the patient loses decisional capacity should further the continued interests of the patient. Additionally, surrogates are morally and legally required to make decisions that conform as closely as possible to those the patient would choose for himself or herself. Physicians thus are not obligated to follow requests by surrogates that do not comply with the patient’s known wishes. If the physician is unable to resolve the conflict, it may be helpful to involve a third party to help mediate the situation such as an ethics consultant or committee, or hospital legal counsel. If an ethically, legally, and clinically sound agreement cannot be reached, court review may be necessary.

SPECIAL CASES

Implied consent

In health care, the principle of implied consent is sometimes colloquially referred to as “emergency consent” since it is most commonly invoked when the following conditions are met: (1) there is an emergency circumstance where the patient is unable to participate in the informed consent process (usually because the patient is unconscious), and there is no available evidence of the patient’s wishes not to receive the therapy; (2) no other proxy decision maker is available to make decisions for the patient; and (3) the physician is compelled to immediately provide necessary treatment without which serious or irreversible harm to the patient’s life or health may result. Thus, implied consent is presumed when a person needs help and cannot explicitly provide consent. Implied consent also refers to situations where the patient does not expressly state, either verbally or in writing that a procedure may be done, but his or her actions imply consent. A common example is when the patient extends an arm after being told that the physician wants to draw blood for laboratory analysis. Implied consent is legally accepted and provides a defense against claims of battery, but not against claims of negligence. Physicians should follow their institutions’ documentation standards when relying on implied consent in the context of a medical emergency, and clearly identify why emergency treatment was necessary as well as the nature and immediacy of the threat.

Minors

The rights of minors to make decisions about their medical care have expanded over the past decade. While in general, a parent or legal guardian of a minor has to provide consent for treatment, some jurisdictions are granting older minors, especially those over the age of 16, broad leeway to make decisions about their medical treatment. Nearly all jurisdictions allow legally emancipated minors and minors who are pregnant or parents themselves to make medical decisions for their care and their own minor children. However, some states now have statutes or case law that allow mature minors to provide consent to procedures if they can demonstrate that they are mature enough to understand and appreciate the nature and consequences of a proposed medical procedure or treatment. Rather than reliance on an “all-or-none” phenomenon, the mature minor doctrine allows for individual assessment of the stability of the minor patient’s value system along with their emotional and intellectual development. This approach recognizes that decisional capacity in a minor is a gradual process affected by personal characteristics and environment. The laws concerning the extent minors are allowed to make their own medical decisions vary from jurisdiction to jurisdiction, and most jurisdictions are reluctant to allow minors to refuse potentially life-sustaining treatment without involvement of the court. It is therefore advisable that each physician be familiar with the local statutes.

Artificial nutrition and hydration

Medical and legal issues abound when it comes to the use of artificial nutrition and hydration (ANH), particularly in the dying or permanently unconscious patient. The US Supreme Court made it clear in its 1990 Cruzan decision that ANH is a medical treatment and a decisionally capable patient may refuse any and all types of medical treatment, including ANH and other types of life-sustaining treatment. Patients may also execute a specific instructional directive that references ANH and clearly communicates the patient’s refusal of ANH. However, state laws are highly variable in regard to proxy decision-maker requests to withhold or withdraw ANH, and many living will laws expressly forbid the withholding or withdrawal of ANH as a means to shorten the dying process. Some states require “clear and convincing” evidence of the patient’s wishes to forgo administration of ANH before a proxy request may be honored. Clear and convincing evidence would require either a written directive or evidence of a serious, reflective discussion with the patient on the subject. Other states have lesser evidentiary standards, and some include ANH within the parameters of life-sustaining treatment that may be terminated upon request of a proxy decision maker whenever the standards are met for withdrawal of life-sustaining treatment. Physicians should refer to the specific statutes in their state for guidance.

Physician-assisted suicide

The US Supreme Court ruled in 1997 that states may maintain laws that prohibit or allow euthanasia and assisted suicide. A few states now allow terminally ill adult patients, who are decisionally capable and able to communicate their wishes, to end their lives through the voluntary self-administration of a lethal dose of medication prescribed by a licensed physician expressly for that purpose. In Oregon and Washington, the statutes are called the Death with Dignity Act. Patients must fulfill several requirements before receiving the medication, including initiating verbal and written requests, undergoing a second opinion consultation, receiving psychiatric intervention if the patient is perceived to be depressed, and undergoing a 15-day waiting period. This process is sometimes called “physician-assisted suicide” because patients self-administer the medication at a time of their choosing with the intention of ending their life. Because the patient actively takes steps to end his or her life, this is different than withholding or withdrawing medical treatment where barriers to the dying process are removed. This is also different than voluntary active euthanasia where the physician acts upon the voluntary request of a decisionally capable patient and the physician intentionally administers medications or other interventions to cause the patients death. In states that allow it, patients must request and self-administer the lethal medication. No state allows the medications to be administered or requested by a proxy decision maker, even where there is clear evidence of the patient’s wishes.

SUGGESTED READINGS

INTRODUCTION

Medical malpractice is a serious concern for many physicians and a topic that often prompts intense debate. In this chapter, we review the elements of medical malpractice, as well as data about the frequency of both negligent medical care and actual claims of medical malpractice. We will also review how well the malpractice system achieves its purpose of deterring negligent medical care and compensating patients who are harmed by such negligence. We also discuss malpractice issues that are of particular concern to hospitalists, and what can be done to reduce the risk of being the subject of a medical malpractice claim.

THE ELEMENTS OF MEDICAL MALPRACTICE

Medical malpractice is a form of negligence that applies to health care providers including doctors, nurses, and institutional medical care providers like hospitals. At the core of negligence-based liability is the notion that individuals committing unintentional but reasonably avoidable acts that cause injury should be required to compensate the victims of those acts. To determine whether negligence is present in a given situation, courts require plaintiffs to prove four elements through a preponderance of the evidence: duty, breach, causation, and harm.

The duty of care in negligence claims is a hypothetical standard by which the court judges the conduct of the defendant to determine whether he or she had an obligation to act differently. In the hospital setting, physicians have a duty to provide care with the same skill and diligence as a reasonably competent physician in the same specialty or field of practice would under similar circumstances. Failure to meet this standard constitutes a breach of the physician’s duty of care. In most cases, for this duty to exist, a physician-patient relationship must have been established.

In order to determine whether a physician has breached the duty of care, an expert witness must testify as to the applicable standard in court. In the majority of states, physicians are judged by a national standard of care that all physicians in the same specialty would be expected to follow. However, in a significant number of states, physicians are judged by what other physicians in the same specialty and in the same geographic area would have done in a particular situation. In either case, the relevant testimony must come from expert witnesses who have the education, training, or other credentials that would make them familiar with the applicable standard of care. The question of whether a physician breached the duty of care then, often hinges on competing testimony provided by expert witnesses as to the applicable standard of care and whether the conduct in question failed to meet that standard.

Even if a physician breaches this duty by failing to adhere to the standard of care, the plaintiff in a case cannot establish liability unless that breach is the actual cause of the injury. To establish legal causation, the plaintiff must show that the breach was both the “cause in fact” and the “proximate cause” of the injury. As a breach of the duty of care is the “cause in fact” of damages if the plaintiff can establish that the presence of the breach was the “deciding factor” in determining whether the damage would have occurred. Put differently, a breach of the duty of care would not be the “cause in fact” of harm if the harm would have occurred despite the negligent care of a physician. In addition to being the cause in fact of harm, a breach of the duty of care must also be the proximate cause in order to satisfy the causation element of negligence. To be the proximate cause of harm, the harm must be, by its nature, a foreseeable or direct consequence of a breach of the duty of care. Some courts require an additional or alternative finding that the breach was a “substantial factor” in causing the injury, especially when two or more parties may be responsible.

If the court or jury finds that a physician has breached a duty by failing to adhere to the applicable standard of care and that the breach is the cause in fact and proximate cause of a patient’s injury, then the physician will be liable for damages. The measure of such damages is often highly dependent on the facts and circumstances surrounding the particular incident. Generally, a claimant can recover compensatory damages for both economic and noneconomic harm. Economic damages include the specific costs associated with treating the injury, such as medical bills and drug expenses, as well as current and future loss of earnings. Economic damages also include the costs of living with the injury such as modifications to the home to accommodate a wheelchair. Noneconomic damages most often include pain and suffering (physical and emotional) from the injury. In addition, courts may order punitive damages for injuries that are the result of malicious conduct or a willful disregard of patient safety. However, such instances are rare.

Medical malpractice claims usually involve numerous medical personnel involved in every stage of the patient’s care. Malpractice plaintiffs cast a wide net when filing suit for a number of reasons. First, it is often cost prohibitive to file an individual suit against each defendant because of the increased costs of legal discovery. Second, because most states employ a comparative negligence standard (meaning that total damages are calculated and then allocated to defendants based on their percentage of contribution of fault), it is difficult to allocate damages among separate claims. It is also more likely that naming multiple defendants will help the plaintiff narrow down which of the defendants was actually at fault (if any). Third, joining multiple defendants in the same suit allows plaintiffs to use the defendants’ own knowledge and testimony to establish standards of care, cutting down on the costs of hiring independent expert witnesses. Finally, there may be jurisdictional rules that prohibit separate claims and require naming all the responsible parties in a single claim if a failure to do so would result in an unfair outcome or an increased burden on the judicial system.

THE EPIDEMIOLOGY OF MEDICAL MALPRACTICE

Up until relatively recently, little data existed about liability environment for hospitalists specifically. However, data recently published by Schaffer et al, looked at claims rates for hospitalists, based on data from a medical liability insurer, covering physicians in the New England region. This study showed that the claims rate against hospitalists (0.52 claims per 100 physician coverage years [PCYs]) was significantly lower than that for nonhospitalist internal medicine physicians (1.91 claims per 100 PCYs), and emergency medicine physicians (3.50 claims per 100 PCYs). Among the claims filed against hospitalists, 32% resulted in payment, with a mean payment of $384,617. The severity of injury to the patient in the claims against hospitalists was high, with 50% of the claims involving the death of the patient.

Some studies have analyzed the epidemiology of medical injury in specific states. Examining more than 30,000 records of patients hospitalized in New York State in 1984, the Harvard Medical Practice Study is the largest study to assess the rate of medical malpractice injuries and claims. This study showed that adverse events occurred in 3.7% of hospitalizations; of these adverse events, 27.6% were determined to be due to negligence. In a further analysis of the Harvard Medical Practice Study by Localio et al, the overall rate of malpractice claims per discharge was 0.13%. In this study, the vast majority of adverse events did not result in a malpractice claim. Of the adverse events due to negligence that were identified, remarkably only about 2% resulted in malpractice claims. The estimated ratio of negligence to claims was 7.6 to 1.

Testing the generalizability of the results of the Harvard Medical Practice Study, a subsequent, methodologically similar study by Thomas et al, examined 15,000 hospital records from Utah and Colorado. In this study, which yielded comparable results to the Harvard Medical Practice Study, 2.9% of hospitalizations in each state involved adverse events. Of these adverse events, 32.6% were a result of negligence in Utah, and 27.4% were a result of negligence in Colorado. Additional analysis of these data by Studdert et al in 2000 showed that only about 3% of those patients who suffered a negligent injury filed a malpractice claim. Characteristics more common among patients who suffered negligence but did not file a malpractice claim include low income, uninsured, insured by Medicare or Medicaid, and age ≥75 years. Of those malpractice claims identified during the study period, 78% were made despite the absence of negligence and 56% were made despite the absence of an adverse event. The ratio of negligent adverse events to claims was 5.1 to 1 in Utah and 6.7 to 1 in Colorado.

The two main purposes of the medical malpractice system are to compensate patients who suffered injuries resulting from negligence, and to deter negligent behavior by imposing costs on physicians who practice negligently. These data call into question whether the medical malpractice system is achieving these objectives. Given the large number of adverse events due to negligence not leading to a malpractice claim, the medical malpractice system is not efficient at holding negligent physicians accountable, and many patients who have been injured as a result of malpractice are not receiving compensation. One implication of these data is that the rate of claims is a problematic metric to use in assessing quality of care, since most episodes of negligence do not lead to malpractice claims, and a significant number of malpractice claims are filed in the absence of negligence or injury.

A somewhat different picture emerges when the outcomes of claims are analyzed, rather than simply the filing of claims. Studdert et al in 2006 evaluated 1452 closed malpractice claims in which objective assessments were made by reviewers as to whether there were medical errors resulting in injury. Of those claims filed involving injuries, 63% were determined to be a result of error. In cases in which there was injury due to error, compensation was paid 73% of the time. In cases in which there were no errors, no compensation was paid 72% of the time. The authors of the study concluded that, although the malpractice system does a reasonable job of providing compensation only when there is injury as a result of a medical error, the process has significant shortcomings. Namely, cases take a long time to come to resolution (5 years, on average, from injury to disposition) and the monetary costs of litigating the claims are steep (54% of the compensation paid).

Thus the data show a very limited correlation between malpractice claims made and acts of actual malpractice. Based on the 2006 data from Studdert et al looking at the outcomes of claims, it appears that the majority of claims with merit result in compensation and the majority of meritless claims are denied compensation. However, the system of determining which claims have merit is protracted and expensive.

AREAS OF MEDICAL MALPRACTICE OF SPECIAL CONCERN TO HOSPITALISTS

INTRODUCTION

One analysis of 272 malpractice claims made against hospitalists found that the most common contributing factor underlying the cases was a problem with clinical judgment, such as failing to order an indicated diagnostic test or having too narrow a diagnostic focus. The second most common contributing factor was a breakdown in communication—either between the providers and the patient/family or among providers (Table 35-1).

Many of the areas of malpractice risk of specific concern to hospitalists relate to communication issues. The discontinuity between inpatient and outpatient care that is inherent to hospital medicine, as well as the multiple handoffs of patient care that can occur when hospitalists work shifts, both increase the risk of a communications breakdown that could result in injury due to negligence. Examples of areas of liability concern for hospitalists related to inadequate communication include failure to follow up on incidental findings (Case 35-1) and appropriately addressing test results that may be pending at the time of discharge.

The preceding case illustrates the liability pitfalls that can result from inadequate communication among the physician ordering a radiologic study (the ED physician), the physician interpreting the study (the radiologist), and the physician who is best suited to follow up on the abnormal results (the primary care physician). This case had features that are common in ED cases leading to malpractice claims, including the misreading of plain radiographs, the involvement of multiple individual failures, and process breakdowns.

PENDING TESTS AND INCIDENTAL FINDINGS

Hospitalists frequently find themselves in the same position as the ED physician in the above case, ordering a study of which the final results may not come back until after the patient has been discharged. The same problem applies to laboratory tests. One study by Roy et al encompassing the hospitalist services at two academic medical centers found that 41% of patients had laboratory or radiology results pending at the time of discharge and in 9.4% of cases the results of these studies were considered potentially actionable. Seventy percent of the inpatient physicians and 45.8% of the outpatient physicians were unaware of these potentially actionable results.

The problem of pending test results at the time of discharge is best addressed at a systems level—for example, through a mechanism that automatically notifies the ordering provider of the final results of such tests. However, such systems are not widely in place and even when they are, physicians still often fail to follow up on clinically significant results. Consequently, physicians need to take responsibility for following up on the final results of the tests that they order.

Physicians may also be held responsible for responding to test results ordered by another physician when these results come back while that physician is on duty, as was held in Siggers v. Barlow (906 F.2d 241). Responding to these test results often means communicating with the patient’s PCP about what additional follow-up needs to occur, such as serial imaging for an incidentally discovered pulmonary nodule. Discharge summaries, while important, are generally not adequate as the only means of communicating important findings that need to be followed up by the PCP. Kripalani et al and Pantilat et al identified a number of potential deficiencies in the discharge summary as the sole means of communicating with the PCP. These deficiencies include the possibility that the discharge summary does not reach the correct PCP (occurring 25% of the time), failure to include tests pending at discharge (occurring 65% of the time), and the PCP not receiving the discharge summary prior to follow-up (occurring 67% of the time). Therefore, hospitalists should contact PCPs directly regarding important test results or other matters that need to be followed up, by phone and/or letter, and this communication should be documented in the patient’s chart.

COORDINATION OF CONSULTANT CARE

Another potential area of malpractice liability is the use and coordination of consultants. Hospitalists list active coordination of consulting specialists as one of the benefits they bring to patient care. However, with this responsibility for coordination of specialists, and in their role of the attending physician of record for the patient, hospitalists are at risk of incurring malpractice liability based on the actions of the consulting specialists (see Case 35-2).

RISK FACTORS FOR MEDICAL MALPRACTICE CLAIMS AND STRATEGIES TO REDUCE THIS RISK

In considering ways to reduce the risk of facing a medical malpractice claim, a key question to ask is why patients decide to file claims, given that the vast majority of patients who are injured due to medical errors do not initiate a malpractice action. One study, by Beckman et al examined 45 plaintiff depositions in medical malpractice cases and found that in 71% of cases there were significant relationship issues between the plaintiff and the defendant physician. The most common issue was the feeling by the patient of having been deserted by the physician. Examples include abandonment, and the physician being unavailable and sending associates such as residents in the place of the attending physician. Other relationship issues that were present in the examined depositions included: devaluing the patient (such as by discounting the patients’ illness or pain); delivering information poorly (including failure to explain what was occurring); and failing to understand the patient’s or family’s perspective (such as by not asking for the patients’ opinion).

The behavior of consulting specialists who are brought in after an adverse event has occurred may also influence whether a malpractice claim is filed. In 54.8% of cases, health care professionals raised questions about the care the patient had received, and in 70.6% of these cases, the health care professional who cast doubt on the quality of the care that had been provided by the defendant physician was a consultant who saw the patient after the adverse event. In a couple of cases, it was an acquaintance—who happened to be a health care professional but was not directly involved in the case—who suggested that the care received was substandard. Therefore, consultants seeing a patient after an adverse event need to be mindful that even an offhand remark on the care the patient has received may affect whether the patient pursues a malpractice claim.

These data suggest specific measures that may be taken to reduce the risk of a malpractice claim being filed. It is important to avoid those physician behaviors, such as creating conditions in which the patient may feel abandoned and not fully acknowledging the patient’s concerns or discomfort. Given the possibility that having associates such as residents or physician assistants see the patient runs the risk of the patient feeling abandoned, the attending physician should explain the expected involvement of associates up front. It may also be helpful to frame the care to the patient as being provided by a team, so the patient does not feel connected only to the attending physician. It is also important to ensure that patient expectations about the outcome of a procedure or treatment are realistic. The informed consent process is an opportune occasion to address the patient’s expectations.

Strong communication skills are also important. Supporting the benefit of good communication skills in reducing litigation, another study by Lester et al found that physicians, who exhibited “positive communication behaviors” such as making eye contact, acknowledging what the patient says, and spending more time with the patient, elicited reduced litigious feelings in observers. Hickson et al in 1994 showed that the patients of obstetricians with a high frequency of malpractice claims complained about these physicians’ communication skills, including these physicians not listening and not providing information. The rate of these complaints about poor communication was significantly higher for physicians with a history of a high frequency of medical malpractice claims than for physicians with a better claims record.

On a systems level, it may be possible to identify physicians within an organization who are at increased risk of a malpractice claim. Physicians with an increased number of patient complaints have more risk management episodes, defined as both malpractice claims that are filed and incidents reported by staff members to the risk management department. One study by Hickson et al from 2002 retrospectively examined a cohort of 645 physicians, looking for an association between the number of unsolicited patient complaints and the number of risk management episodes. A small number of physicians generated a markedly disproportionate number of patient complaints, with 9% of the physicians garnering more than 50% of the complaints. There was a significant positive correlation between the number of complaints received and both the total number of risk management episodes and the number of lawsuits.

Similarly, another study by Stelfox et al found that scores from a commonly used hospital satisfaction survey were significantly associated with risk management episodes, which included both malpractice lawsuits and incidents identified by risk management as having the potential to result in a malpractice claim. The survey instrument included five questions asking patients to rank their inpatient attending physician in different areas, using a scale of 1 to 5 for each question, with a score of 5 denoting the highest rating. Each 1-point decrement on the survey correlated with a 5% increase in the rate of risk management episodes. The specific questions on the survey that had the strongest correlation with risk management episodes were those regarding the time the physician spent with the patient and the concern the physician showed for the patient’s qualms. No significant correlation was found between the responses to questions on how satisfied the patient was with the physician’s skill and the rate of risk management episodes. There was also a positive correlation between the rate of patient complaints and the rate of risk management episodes. Notably, a breakdown of complaints against physicians again suggested the crucial importance of good communication with the patient. Of the 483 complaints analyzed in the study, 75% of them concerned communication issues and 25% of them related to patient care matters. These two studies by Hickson et al and Stelfox et al show that by using data that are commonly collected by hospitals—number of complaints and the results of patient satisfaction surveys—it may be possible to identify physicians who are at elevated risk of being named in a malpractice action.

If it is possible to recognize physicians at increased risk of malpractice suits, such as Dr A in the preceding case, then potentially actions may be taken to mitigate this risk. For example, physicians who receive a high number of complaints or with particularly low satisfaction ratings could undergo educational programs aimed at enhancing their patient-communication skills. One approach, advocated by Moore et al consists of a tiered intervention system. Initially, a physician who has been identified as being at high risk is approached by a peer to discuss the issue. If that is not effective in improving the physician’s complaint rate, then a plan for improvement is developed in conjunction with someone in authority, such as the department chair. If these efforts are still unsuccessful, meetings can be held with senior officials in hospital management, with the possibility of discipline or dismissal. Components of the plan to reduce the complaint rate (and so potentially also the risk of facing a malpractice action) can include enhancements to the management of the physician’s practice, continuing medical education on the physician-patient relationship, and/or mental health evaluation.

DISCLOSING ERRORS TO PATIENTS

Physicians understandably are often conflicted about whether to disclose medical errors. Historically, physicians have been hesitant to disclose mistakes for fear of inviting litigation over an error that may otherwise have gone unnoticed by the patient, and in order to avoid possible censure over having made a mistake. An opposing view holds that disclosing errors will help avoid the strain in the patient-physician relationship and the breakdown in communication that may occur after a mistake, and so may decrease the risk of litigation, or at least lead to smaller awards.

The empirical evidence is inadequate to clearly answer what effect disclosure of medical errors will have on the likelihood of malpractice litigation. Policy changes regarding notification of patients about medical errors implemented by some medical centers do provide examples of the possible consequences of disclosure policies. In 1987, the Lexington, Kentucky, Veterans Affairs Medical Center (VAMC), in reaction to two large malpractice payouts, decided to put into place a policy of proactively identifying and investigating cases of possible medical negligence. If medical negligence was found, the representatives from the Lexington VAMC would have a face-to-face meeting with the patient or next of kin. At this meeting, hospital representatives would explain the situation, answer any questions, and offer restitution—the amount of which was based on a determination of actual loss. Claims assistance was also offered. Reviewing 15 years of experience with this full disclosure policy at the Lexington VAMC, Kraman et al concluded that this approach appeared to reduce the amount of overall malpractice payouts. Although the Lexington VAMC had an increased number of payouts, the average amount of these payouts was relatively small, at $14,500. This compares to a mean pretrial settlement amount of $98,000 for all medical centers in the VA system. Despite the Lexington VAMC being in the top quarter of all VAMCs in the number of tort claims filed, it was in the bottom quarter of all VAMCs in terms of total malpractice payouts. This VAMC experience has major limitations regarding its generalizability, because physicians in VAMCs do not pay individual malpractice premiums and, as federal government entities, VAMCs are not subject to punitive damages.

Several hospital systems and liability insurers have instituted programs that couple disclosure of unanticipated care outcomes with rapid offers of compensation in appropriate cases. The most widely published program is the one implemented by the University of Michigan Health System (UMHS) in 2002. In this program, unanticipated outcomes are promptly disclosed and investigated. The three principles the UMHS cites as defining their risk management approach are: (1) rapid offers of compensation when “unreasonable” care was the cause of the injury; (2) forceful defense of claims in which the care provided was reasonable; and (3) use of knowledge gained from the incidents to prevent future injuries and claims. With this policy in effect, the UMHS saw a decrease in monthly liability costs, in the rates of new claims, and in the time to resolution of claims. As with the VAMC program, questions exist about the generalizability of the UMHS program, especially since UMHS as an institution could assume legal responsibility when the outcome was due to systems-level problem. As a result of how tort laws are structured in some states, claims in those states are usually filed against individual physicians, rather than institutions, which might make some physicians hesitant to accept settlements, with the accompanying requirement of reporting the payment to the National Practitioner Data Bank.

Despite the encouraging reports from organizations implementing disclosure-and-offer programs, some uncertainty remains about disclosure as a risk management strategy, particularly when disclosures are not made in the context of compensation programs. A major legal concern about disclosure in the absence of some mechanism for awarding rapid and modest compensation is that, because most medical errors do not result in malpractice claims, aggressive disclosure of medical errors may prompt claims that would otherwise not have been filed. A theoretical modeling of this issue by Studdert et al in 2007 concluded that routine disclosure would have a 94% likelihood of increasing malpractice compensation costs. Regulatory protections that exist, such as state “apology laws” designed to allow physicians to apologize without having it used against them, may provide only very limited protection. These laws may prevent expressions of regret from being used against the physician, but not ancillary information surrounding that expression of regret, such as information about causation or fault.

Ultimately, one may expect to see progressively wider implementation of policies encouraging or even requiring error disclosure. The basis for this expectation is independent of the effect of error disclosure policies on malpractice costs, but is instead based on regulatory, public policy, and ethical considerations. Some states and accreditation organizations, such as The Joint Commission, are increasingly implementing standards requiring error disclosure. Error disclosure, with the accompanying ability to gather data on what types of mistakes are recurring, also supports the public policy goal of improving systems so as to reduce future errors.

Disclosure of medical errors is generally considered the ethically appropriate course. Honesty is necessary to maintain a strong physician-patient relationship, and informed consent requires that patients be fully aware of the circumstances surrounding their treatment so they can decide about further care. Demonstrating this trend toward increasing disclosure of medical errors, a consensus statement from the Harvard-affiliated hospitals in 2006 expressed a commitment to full disclosure of medical errors in order “to change our systems to prevent future error” and because “it is the right thing to do.”

DEFENSIVE MEDICINE

Defensive medicine, as defined by a 1994 Office of Technology Assessment report, is “when doctors order tests, procedures, or visits, or avoid high-risk patients or procedures, primarily (but not necessarily solely) to reduce their exposure to malpractice liability.” Defensive medicine may be categorized by whether it is positive, such as ordering of extra tests to try to forestall a malpractice claim, or negative, such as avoiding patients perceived as representing an increased malpractice risk. Some authors prefer the term “assurance behavior” in place of positive defensive medicine, and “avoidance behavior” in place of negative defensive medicine, so as to avoid the suggestion of approval or disapproval about defensive medicine.

Particularly in environments of high-liability stress, defensive medicine appears to be very common. A 2005 study by Studdert et al surveyed physicians in litigation-prone specialties (emergency medicine, general surgery, orthopedic surgery, neurosurgery, obstetrics/gynecology, and radiology) in Pennsylvania, which had experienced rapidly increasing malpractice premiums. Of the physicians who responded to the survey, 93% had engaged in defensive medicine and 42% were limiting the scope of their practice because of fear of liability. The most common type of defensive medicine in the survey was ordering extra tests, which 59% of physicians reported doing. This was especially common among emergency physicians, 70% of whom reported ordering extra tests. Physicians concerned about whether their malpractice insurance coverage was adequate and those who felt their insurance premiums were particularly onerous were especially likely to engage in defensive medicine. Common negative defensive medicine practices included avoiding high-risk patients, reported by 39% of physicians, and avoiding high-risk procedures, reported by 32% of physicians. Positive and negative defensive medicine practices have differing implications for the health care system. Positive defensive medicine has the potential to increase costs while offering modest, if any, benefits to patients. In contrast, negative defensive medicine may limit patients’ access to certain medical services viewed as high risk, such as obstetrics.

Not only is defensive medicine common, but it is also expensive. Estimates of the costs of defensive medicine vary and are fraught with methodological limitations. One estimate is that approximately 5% to 9% of health care spending can be labeled as defensive. A concern is that if defensive medical practice becomes common enough, it may become the standard of care, which could force all physicians to practice in a defensive manner.

Overall, there is no clear empirical evidence that defensive medicine affects patient outcomes. There are some theoretical arguments against the practice of defensive medicine. Patients who perceive that their physician is ordering a test or procedure for a defensive reason may react negatively to this and be more likely to file a claim in the event of an adverse outcome. Some forms of defensive medicine involve physical risk to the patient—for example, ordering unnecessary biopsies and other invasive procedures. Particularly for these cases, services ordered primarily to serve the desire of the physician for minimizing risk and not the medical needs of the patient are ethically suspect. However, if fear of malpractice causes physicians to lower their tolerance for the possibility that a significant finding, such as a cancer, could be missed, then this effect is not necessarily deleterious. Indeed, some tests ordered primarily or solely to benefit the physician (by reducing medicolegal risk) end up having clear benefit to the patient. In the aggregate, though, defensive medical practices are likely cost ineffective.

ADDITIONAL STRATEGIES TO REDUCE THE RISK OF A MALPRACTICE CLAIM

A number of different strategies can be employed to potentially reduce the risk of a malpractice action. As discussed above, good communication practices with patients and their families are crucially important. Feelings on the part of patients that the physician is unavailable or dismissive of the patients’ concerns may increase the risk of a malpractice claim. Delegating important communication tasks should be avoided. Residents and other trainees may not provide complete information to patients, may not convey information in a sensitive manner, and may not carefully document the communications they do have with patients.

A 2007 case decided by the Massachusetts Supreme Judicial Court highlighted the importance of informing patients about the potential side effects of their medications. The case, Coombes v. Florio (450 Mass. 182), concerned a 72-year-old patient on multiple medications (including oxycodone, tamsulosin, and oxazepam) who was driving and fatally struck a 10-year-old boy. The boy’s mother sued both the driver of the car and the driver’s physician, Dr Roland J. Florio. The Massachusetts court ruled that this was not a medical malpractice case, because the boy who was killed and his mother had no physician-patient relationship with Dr Florio. Nonetheless, the court held that Dr Florio could still be subject to a negligence claim, because he did have a duty to make the patient aware of the side effects of the medications the patient was taking so that the patient could make an informed decision about whether it was safe to drive. The court reasoned that if it was not safe for the patient to drive, then an accident, which might result in harm to parties other than the patient, was a foreseeable consequence. The court drew an analogy with a bar owner being found negligent when someone becomes inebriated at the bar and then drives and becomes involved in a fatal collision.

Inadequate communication among physicians, both between hospitalists, and between hospitalists and PCPs, is a significant liability concern for hospitalists. These communications should be standardized whenever possible. Handoffs of patient care between hospitalists should use a standardized form so that crucial information, such as diagnostic uncertainties and the status of communication with the PCP, is not overlooked. Although the discharge summary is not in and of itself adequate as the only means to communicate important information to a patient’s PCP, it can be designed to help make sure the PCP receives important information arising from the hospitalization. For instance, the discharge summary can have standardized sections dedicated to tests pending at the time of discharge and issues requiring outpatient follow-up. Having these sections in all discharge summaries ensures that the person preparing the discharge summary addresses these areas and also gets PCPs accustomed to looking for this information in the discharge summaries. Even with standardized discharge forms, important issues requiring outpatient follow-up should still be directly communicated to the PCP, so as to minimize the chance that these matters get overlooked.

Checklists have been found to reduce complications and mortality in the surgical setting, and the benefits of checklists also extend to the medical setting. Checklists in Hospital Medicine have the potential to reduce errors that could give rise to a malpractice claim, such as the failure to use appropriate deep vein thrombosis (DVT) prophylaxis in a patient who subsequently develops a pulmonary embolus while in the hospital, or leaving a central venous catheter in a patient who then develops a catheter-related bloodstream infection. Checklists could also improve efficiency, such as by making sure a patient who needs a physical therapy evaluation receives one promptly. To enhance the effectiveness of a checklist in Hospital Medicine, other members of the care team, such as the nurses, should be involved in ensuring the components of the checklist have been met, and are empowered to raise the issue when the components of the checklist have not been met.

Informal “curbside” consultations is a potentially legally perilous practice. Questions to consultants about a specific patient should generally be made as a formal request for consultation, not an informal “curbside” consultation. When consultants provide “curbside” consultations, they are usually not seeing the patient and evaluating all the data, so their assessment may be based on incomplete information. Moreover, a “curbside” consultation does not result in a note from the consultant in the chart, so the basis for the consultant’s recommendations will not be part of the medical record. A consultant who formally sees the patient will also usually be able to continue to follow the patient as an outpatient, which can help with the transition of care to the outpatient setting and provide a resource to whom the patient’s PCP can turn for assistance. If the name of a consultant who provides a “curbside” consultation is placed in the chart, then if a malpractice claim arises, it is likely that the consultant will be named in the claim. Table 35-2 summarizes strategies designed to reduce the risk of a malpractice claim.

COPING WITH A MALPRACTICE CLAIM

Being the subject of a malpractice claim is usually intensely stressful. Common reactions to being sued include anger, depressed mood, frustration, irritability, and insomnia. Samkoff and Gable have even compared physicians’ reaction to a lawsuit with the five Kübler-Ross stages of grief: denial, anger, bargaining, depression, and then acceptance. Physicians are at risk of personalizing the claim and considering it an attack on their competence and character. The process of adjudicating is commonly protracted, often taking 4 to 5 years from the time of the adverse event to resolution of the case, thereby adding to the stress of a malpractice claim.

Approaches that may help physicians cope with the stress of a malpractice claim include discussing the stress with trusted friends, family, and colleagues. Discussions of specific details of the case should occur only in settings where privilege applies, such as with one’s lawyer or with a therapist with whom one has a formal patient-clinician relationship. Open discussion with family about the accompanying stress may be especially helpful, since the stress of the malpractice claim is likely to affect family members. Colleagues should express support when they know an associate is facing a malpractice action. Some professional societies also offer specific counseling resources or referrals for physicians trying to deal with the stress of a malpractice action.

One of the reasons malpractice claims can be so stressful for physicians is that so much of their own identity revolves around their profession. Realizing this, the physician should attempt to depersonalize the claim. Most claimants have as their primary objective obtaining compensation, not vilifying the physician. Physicians dealing with a malpractice suit should use it as an occasion to assess whether they have appropriate balance between their professional lives and their leisure time. Spending time engaged in vocational pursuits, such as hobbies and time with friends, is important. Physicians should also have the lawyer representing them explain what the process of adjudicating the claim will entail, so that the process is demystified and surprises are minimized. The facts surrounding the case should be examined to see if there is a systems-level issue that can be addressed to help prevent future claims—for example, designing a system for reviewing incoming radiology studies if a radiographic finding was missed.

There are some specific pitfalls that must be avoided during the stress of malpractice litigation. Physicians facing a malpractice claim who do not have a formal PCP should obtain one, as a PCP can be helpful with medication for symptoms and referrals for counseling. Self-medication should be avoided. Insomnia is a common symptom arising from the stress of a malpractice claim, and physicians who feel medication is needed to treat insomnia should discuss this with their own physician, and should not self-prescribe or obtain medication from a colleague informally. One action that should never be taken is going back and altering any documents in an effort to assist one’s defense. Not only is this unethical and potentially criminal, but also by the time a physician is aware that a malpractice claim may be filed, the filing party almost certainly has copies of the medical records and related documents.

When a claim results in payment on behalf of an individual physician, there are reporting requirements. Information about this payment must be reported to the National Practitioner Data Bank (NPDB), which was established by the Health Care Quality Improvement Act of 1986. The Act was intended to improve the quality of medical care, in part by requiring the submission of malpractice payments to the NPDB, which can then be queried by health care institutions when making hiring decisions. Patients and individuals do not have access to reports of physician malpractice payments made to the NPDB, although physicians can request their own NPDB files. Some states, however, have web sites that allow patients to look up individual physicians and find out information about their malpractice histories.

CONCLUSION

Popular perceptions notwithstanding, the medical malpractice system appears to do a reasonable job of awarding compensation primarily in cases that actually involve an injury due to negligence. Nevertheless, the system is inefficient and expensive. In addition, most adverse events resulting from negligence never lead to claims or compensation, and meritless malpractice claims also remain a problem.

Legal citations

Domby v. Moritz, 2008 Cal. App. Unpub. LEXIS 1856

Coombes v. Florio, 450 Mass. 182 (2007)

Siggers v. Barlow, 906 F.2d 241 (1990)

Beilke v. Coryell, 524 N.W.2d 607, 610 (N.D. 1994)

Hill v. Medlantic Health Care Group, 933 A.2d 314, 325 (D.C. App. 2007)

Kent v. Pioneer Valley Hospital, 930 P.2d 904, 906 (Ut. App. 1997)

Palandjian v. Foster, 842 N.E.2d 916, 921-22 (Mass. 2006)

Polozie v. United States, 835 F. Supp. 68, 72-74 (D. Conn. 1993)

Health Care Quality Improvement Act of 1986, Pub. L. No. 99-660, 100 Stat. 3743

(codified as amended in scattered sections of 42 U.S.C.).

ACKNOWLEDGMENT

The author would like to thank Prof. Michelle M. Mello for her review of the manuscript and Nicholas Beshara, JD, MPH for his contribution to the previous edition’s chapter.

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