Interview with Harry Revell, attorney for the plaintiff in the lawsuit Jacqueline Alicea vs. Doctors Hospital of Augusta, GA
Heather Robinson: I appreciate you being amenable to me talking about this case.
Plaintiff’s Attorney Harry Revell: Happy to help in any way I can.
H: Great! I have read a lot of articles and legal documents regarding the case and I wanted to start from the beginning and ask how you got involved in the case.
R: Just remind again what you’re working on.
H: Sure, so this has been 5 -6 years in the making but I’m starting a website called Honor the DNR. It’s in beta form right now and has a number of things in it including peoples’ stories about how family members’ DNR orders were not honored, lawsuits regarding end-of-life issues, interesting studies that have been done about hospitals and DNR use. I also did a lot of research on a state by state basis as to what current forms are used and what bills are being presented in that state. That section is still in process. So there are a few cases that I found, one of them was this one and I wanted to talk to people involved in the case to better understand their perspective and also because people looking at my website are trying to protect themselves; they are people who want to make sure that this never happens to them or to someone in their family and that they have all the things they need in place so it can’t. So this case is of course very disturbing for people to hear about.
R: Well, let me first say this, I think there’s a distinction between a DNR and an Advanced Directive. DNR imposes a medical order and puts it into the chart itself that presumably the attending physician would honor, where appropriate, when an advanced directive is in place. Simply having an Advance Directive does not mean that you should simultaneously make the patient DNR.
H: Right, and a DNR has to have a physician sign off on it, whereas with an Advance Directive you can sit down with your attorney and have that worked out. Do you have the MOLST or POLST form in Georgia? These are forms that are like an Advance Directive, but apparently were promoted also by the medical field because if you follow what the form says, you are granted immunity.
R: OK, Sounds like the same thing as our Advance Directive. I am not aware of MOLST or POLST forms in Georgia. In Georgia the living will and durable power of attorney for healthcare were superseded by the Advance Directive. The statute has a suggested form that that you can use but in our case Mrs. Stephenson did not comply strictly with the form that was in the statute but that was not an issue in this case. The court never said anything about that. Short answer is that we had an Advance Directive, not a MOLST or POLST.
H: And how did you get involved in this case?
R: We got involved through Jackie because we were representing Jackie’s daughter in a minor personal injury case so we had a relationship with the family that way. Jackie approached us and was outraged by what had happened and had no idea if anything could be done about it and just wanted to seek our advice. She’s local her in our community and when she came to us she had an overriding concern and also guilt because she felt like she had done everything in her power to honor her grandmother’s wishes. She told the story that every time Ms. Stephenson went to the doctor she grabbed her folder with her Advance Directive in it and she was hell-bent and determined to make her medical providers aware of it. I think Ms. Stephenson’s husband had lingered longer without an Advance Directive, so she was very conscious of the need for one and the importance of one. Jackie also made sure her healthcare providers knew and would tell them, “we have an AD, here it is, you be sure to chart it.” Jackie was adamant that every provider should know that her grandmother had an Advance Directive, and specifically that she (Stephenson) did not want to be hooked up to a breathing machine or intubated to prolong her life. Jackie felt like she had done everything she could and yet she woke up one morning and there’s her grandmother, hooked up to a breathing machine. She had to sit and watch her grandmother linger, tissues breaking down, a horrible 8-9 days. Her grandmother never regained consciousness, never responded after the intubation, and had no ability to communicate with her at all. There’s the nightmare; they had planned carefully, thought they had done everything to avoid this, and here they were experiencing it. Then the issue was, now that the hospital had created this mess, what are we going to do next? That was a big issue in this case. Because Jackie did authorize some procedures after the wrongful intubation. She had been told if they pulled the tube her grandmother would suffocate, so Jackie did not want to do anything affirmatively that would hasten her grandmother’s death. She was in a horrible place. Her health care providers intentionally ignored the Advance Directive and even in her presence denied it was there. That’s when I got involved. I’ve looked in the chart and said, here it is it is. They tried to blame her, saying she authorized the procedure and they also tried to say that if they hadn’t done the procedure she would have died, putting additional guilt on her.
H: It seemed as if the doctor knew and just decided to go ahead and keep her alive.
R: The doctor substituted his own judgment and his choice over the patient’s stated desires. He’d never read the chart, never looked at the Advance Directive. The doctor should have looked at her chart before he opened up Ms. Stephenson’s chest and removed most of her lung. When we got it the case we looked and there was no legal precedence for it. It had to do with how one interpreted immunity, so we were faced with making new law. As I told the court, I can’t imagine a worse fact pattern for suggesting the defendants acted in good faith. They ignored the agent’s instructions, they lied and ignored everything she said. Dr. Ryan Nash, Head of Medical Ethics at Ohio State University, was a powerful voice and expert in this case for us. The hospital had an Advance Directive policy that was appropriate and that required them to meet and talk with the family to decide what would be the triggering event to stop giving treatment. None of that was done. Had they just followed the policy, there wouldn’t have been a lawsuit. They never spoke to the family about the Advance Directive.
H: That’s really how this case and others like it raise the fear level for people who really go and do everything that they should do and I’m wondering if there’s anything you can think of that might have made it more obvious that she did have an Advance Directive that protected her. I’ve talked to a few people and when instructions were ignored the first time, they went and had family there 24 hours/7 staying right next to the patient. It was the only way they could make sure that the orders were honored. Is there anything else you can think of that would have prevented this from happening?
R: I don’t think so. She was in the ICU so it’s impossible for anyone to be there 24/7. Jackie felt confident that it was all charted, no CPR, no intubation. That’s in the chart twice. Problem is the doctor who did the intubation didn’t care to look at the chart. His response was “we don’t want to bother her, we’ll just deal with that later,” literally that’s what he said. Also understand when Jackie says to the healthcare provider we have an Advance Directive in place, we want no heroic measures, no CPR, no intubation without my permission, in her layman’s mind she didn’t know what a DNR was, and she thought that would have been charted that way. She didn’t know the distinction between an Advance Directive and a DNR. At some point the doctor has to come to the family and tell them “I don’t think she’s going to survive, odds are she’s going to go into pulmonary failure, and we can intubate her and keep her alive or we can let nature takes its course and make her comfortable as she passes naturally. What do you want to do?” But the doctor never had that conversation. If that conversation had happened the doctor would have charted a DNR. There was never a DNR in the chart when they intubated her. Jackie was not responsible for putting a DNR in the chart; she could not put a DNR in the chart, only a doctor could.
H: And even a DNR in not always honored. If you have someone who is at home and has a DNR on their wrist but you call 911, by so doing, the understanding is that you called 911, that DNR is being rescinded. It seems like there’s a lot of education that needs to happen to make sure that things like this don’t happen.
R: Yes. This case was settled right before trial for a $1 mil, and we insisted that it not be confidential. We wanted it known throughout the state and the country that hospitals, doctors and medical providers have to pay attention to these things and need to be deferential and respectful of the patients’ end-of-life decisions and cannot substitute their judgment over what the patient wants. We were intentionally making the settlement known and told people what it was when asked.
H: I think that’s important. In the Weisman case, they cannot disclose what the settlement was and it was slightly different because she is still alive. I am glad in this case that the actual amount is known to all.
R: There’s never been a jury verdict in a case like this. We felt like that a jury would impose substantive punitive damages in this case. To the extent that any settlements of similar cases have been reported they are frankly very modest settlements in the $30,000 to $50,000 range. In our case the facts were largely undisputed and horrendous. We did some focus group work on this case to try and determine what a jury would do. We concluded that if we presented the case right, a jury would be outraged about it and would punish the doctor and the hospital. That’s why we came to that $1 Million figure as our nonnegotiable demand. Take it or leave it. No one wants to go to trial. For Jackie, there was a lot of pressure on her. They were going to blame her for not doing more. She really wanted to send the right message and make sure that this hospital would do a better job if another similar case came in.
H: I interviewed other people where these kinds of things happened and asked did you sue and they did not, and I’m wondering why you think people don’t and whether you think that will change.
R: I hope the situation will change. I talked to someone else about this and he said he hoped to get more cases like this, and I said, “No!” I hope there won’t be more lawsuits because these are terrible cases and I don’t want people to be treated like this. It’s hard to know how often this happens. Historically, people defer to their medical providers and they have faith and confidence in them. I think that is changing. Because of the internet and other sources I think that people understand more about medical care, and they now talk to their providers and challenge them more. It’s hard for me to gauge how often this happens. I think a lot depends on how a loved one lived and what kind of expenses were paid out of pocket. If they were paying a lot out of pocket, families would likely be more exercised about these situations, but generally Medicare pays. Medicare requires all hospitals to discuss Advance Directives and to offer to prepare them if they don’t have them because we all know that end of life medical costs are astounding. Medicare is financially motivating hospitals to let people die. They are duty-bound to talk about this with patients. Regarding a DNR order, It’s a difficult conversation for a family to decide whether to do that or not. It’s very emotional and that’s why as long as the patient can make that decision, they should do so before they are in extremis. As you know, sometimes a family will tell the doctor to do everything humanly possible to keep my loved one alive.
H: Some people I talked to said that the concept of having the spouse always be the health care proxy might not be the best way to go because they’re really very, very conflicted. But I don’t see that changing. One interesting thing about this case too is the complicated techniques involved in any procedure where she didn’t know that the procedure they are going to perform would require for her to be intubated. I had another woman who told me that her father’s request was crystal clear and he did not want to have a feeding tube. She went home and came back the next day and he had a tube in his upper chest called an alimentary tube and it was feeding nutrition into him through a vein. Because it wasn’t in his stomach and wasn’t feeding him in the way she knew, she had not specified not to have this particular intervention.
R: Really the age old thing, what would cure a lot of ills is better communication. In this case, when you talk about getting to the right decision, communication is critical.
H: Yes, and I think that falls on the doctor to do a lot of explaining and be very honest about the state of the person who is ill. Anyway, this has been wonderful! Thank you for your time.
R: Glad to help any way I can