Issue: March 2018
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Failure to Comply with Advance Directive: Deadly Risk

Introduction

Advance Directive Risks

Retaining control over a person’s health care decisions, particularly if the person becomes incapacitated, is the function of an advanced health care directive.

 

Confusion can result as to whether a patient has executed a directive, whether the directive is valid, whether the advance directive has been triggered by an event or patient condition, and if the provider has complied with the directive.

 

Problems related to failures to comply can lead to litigation. Claims may be brought, for example, for medical malpractice, negligence, informed consent, or medical battery. Attorneys, physicians, insurers, employers, health care facilities, and other potential parties to litigation need to understand the types of lawsuits and other liability issues that may arise in connection with a failure to comply with an advance directive.


The Perspectives: Improve Your Strategy

Attorneys:

What proof is needed to establish liability for an injury related to a failure to comply with an advance directive? And, what is a potential strategy for the attorney to employ?

Physicians:

How can liability for medical malpractice be avoided for a failure to comply with an advance directive? And, what is a potential strategy for the physician to employ?

Insurers:

Can a payout under a medical malpractice liability policy be avoided by proof that the health provider was not negligent or there was no coverage for the provider’s actions in connection with an advance directive? And, what is a potential strategy for the insurer to employ?

Employers:

Can a hospital or other employer be subject to liability for a physician or other health care provider’s failure to comply with a patient’s advance directive? And, what is a potential strategy for the employer to use?


Practice the Technique: Checklists

Attorneys:

Check this list of facts and circumstances tending to show a provider’s liability for malpractice or negligence for the failure to comply with the patient’s advance directive, resulting in patient injury.

Physicians:

Presented is a checklist of items a physician must consider when defending against claims of malpractice or negligence involving the failure to comply with the patient’s advance directive, resulting in patient injury.

Insurers:

The insurer should check these “red flags” and inconsistencies when investigating a claim of malpractice or negligence involving the failure to comply with the patient’s advance directive, resulting in patient injury.

Employers:

Use this checklist to determine if an employer, such as a hospital, may be held vicariously liable for the actions of an employee or agent, such as a physician, for the failure to comply with an advance directive.

Expert Analysis

What Barriers Inhibit the Use of Advance Directives for Voluntarily Stopping Eating and Drinking (VSED)?

Paul T. Menzel, PhD

What Advance Directive Considerations May Lead to a Malpractice Action?

Karen J. Sneddon, JD

Litigation

Alternative Dispute Resolution

Arbitration or mediation may be required by contract or statute, may be mandated by the court or, in some circumstances, may be the appropriate method for a negotiated resolution.


Reasons to Reach Settlement

The following are reasons why the attorney, physician, insurer, or employer would want to reach settlement, and not take the action to trial.


Reasons to Go to Trial

The following are reasons why the attorney, physician, insurer, or employer would want to take the action to trial.


Jury Awards and Settlements

How much have juries awarded and what settlements have been reached recently in cases involving a failure to comply with an advance directive?



Medical Examples

Medical Situations Triggering Advance Directive

This section provides detailed medical information on medical situations that may trigger a patient’s advance directive health care instructions. Discussed are consciousness, declining patient capacity and palliative care, resuscitation, mechanical ventilation, artificial feeding and hydration, specific conditions, coma and persistent vegetative state, life support and sustaining life, and death determinations. Also covered are the patient’s prognosis and ability to return to work.



Law and Medicine Resources

Law and Medicine Resources

Provided is a listing of law and medical resources for further information on advance directives.


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Failure to Comply with Advance Directive: Deadly Risk

Table of Contents
Introduction

Expert Analysis
   Paul T. Menzel, PhD
   Karen J. Sneddon, JD

The Perspectives: Improve Your Strategy
   Attorneys
   Physicians and Health Providers
   Insurers
   Employers and Risk Managers

Practice the Technique: Checklists
   Attorney Checklist
   Physician Checklist
   Insurer Checklist
   Employer Checklist

Alternative Dispute Resolution

Reasons to Reach Settlement

Reasons to Go to Trial

Jury Awards and Settlements

Medical Situations Triggering Advance Directive

Law and Medicine Resources