I spoke with an attorney who was familiar with the case and I wanted to pass along some of his insights.
In this case, Mrs. Weisman, along with her family, sat down with the family lawyers and put her end-of-life choices in writing in the form of an Advance Care Directive. She was clear that if something happened where she would not be able to live a quality life, she wanted to be left alone; to be let go. At this time she had designated her husband as her Health Care Proxy, giving him the power to make decisions in the event that she could not. After her stroke and when her condition was worsening, her husband executed a MOLST form, which has been used in the state of Maryland since 2013. This form must be, and was, signed by a doctor.
To give some perspective on the MOLST form, which has now been adopted in many states (also called POLST), the history behind the form is interesting. The MOLST form came into being because of problems with the Advanced Care Directive. If some family members have a hope of recovery, there can be issues with an Advanced Care Directive, and then you’ve just created a problem. That’s what happened with Terry Schiavo. The medical community wanted to insure that they could not be sued in these cases. So the legislature said you are right, quid pro quo. What the medical folks got out of it is that if they comply with the MOLST, they get immunity, if they fail to follow the instructions, they don’t get immunity. The doctor is the expert, he has to inform. The patient’s job is to instruct. So in this case, the person who knew Mrs. Weisman probably better than anyone else, her husband, informed the MOLST. Whether she was wearing a DNR bracelet at the time of the resuscitation is unknown, however, according to everyone involved, her medical records said DNR all over them.
The few precedents that were found for this case were not on the plaintiff’s side. On the one hand there were a whole lot of people who supported the Weisman’s position but here’s the thing, theoretically, the concept is this: Life is not a harm. For instance, when it comes to birth defects the doctor performs prenatal testing to determine if a child has an anomaly, like sickle cell or so some other medical problem. If so, the parents can choose to terminate the pregnancy. But if the doctor didn’t find the problem, then the parents can sue for negligence, that’s fair game. The argument is this; we have brought the child to term, and now we have $50K a month in medical costs to handle the child’s special needs. The law is prepared to recognize that. There’s another type of case where the child, now a disabled adult, says, doctor, if you hadn’t screwed up, I never would have been born, but you did screw up, and I didn’t want to be born like this. Here the courts have said not so fast. Here the court said, you know, we’re not in the position to put a value on being and not being. It is not a harm that the law is prepared to recognize. They’ve made it clear that they are not going down that road. But a child has no say about the circumstances in which they come into the world. To be born is the randomness of life. But a person who has raised a family, who has lived a lifetime, gained wisdom along the way, they’re in a very different position than that child. And more importantly the law gives them many tools to determine for themselves what happens. An adult has authority that the law absolutely gives them the right to say, I don’t want to live under certain circumstances, I want to be left alone, I want the estate that I have worked a lifetime for to go to my adult children. That’s a qualitatively different thing than a child being born with infirmities.
Also, when you undertake to disregard a person’s wishes and intervene, when you put someone through extreme measures, like shocking, CPR, etc., how do you know that the person you are getting back is the same person they were before? The most conservative position is this. Life is not a harm. So you have cracked ribs, punctured lungs, but we saved your life, be grateful. We’re not going to let you sue because you’re alive. The intermediate view is this; if you suffer a physical injury from the intervention you can sue for that, but we are not going to let you sue because you don’t want to be alive. Another view is this; whatever was a cost to Ms. Weisman, at the end of the day, you owe her that. Because on that night at that time, you stepped in, you violated her rights. You violated the wishes of her husband of 52 years and decide nope, we’re going to save her life. The argument was this; this woman requires $20,000 a month for her care, make it stop. If I turn off all the lights and you go in and turn them all on, why am I responsible for that big electric bill? From the time she coded to the time she left the hospital they billed her hundreds of thousands of dollars. We all know that end-of-life care is much higher in cost than the rest of a person’s care. If I, as an attorney, continued to bill a client after the case was closed, do you think they would call me? Of course they would.
If you ask a hospital’s attorney about the contract between the patient and the hospital, he would say, it’s not really a contract, it’s a relationship. But, as an example, when a person buys a truck, they get a warranty, a grace period, they know exactly what their obligations are and what the company’s obligations are. Why not here? The hospital will say, “we’re not selling anything here”. To which one should ask “Can you tell me what you weren’t selling Mrs. Weisman for hundreds of thousands of dollars?” By the way, if you do a judicial search for lawsuits where the hospital is the plaintiff against a non-paying patient, you’ll see that the theory of recovery they use when they sue the patient is breach of contract.
Ms. Weisman’s life today is not bad because she has a loving family who provided excellent care for her when they took her out of the hospital. Once at home, day by day, hour by hour, the family brought her back. Most families can’t do this. People put their lives on hold to do this. For a better part of a year, the family was providing her care. She is an 89 year old stroke survivor who is doing pretty well today. Although this case was settled for an undisclosed amount, and the family was in the position to take care of her mother, still there will be a point in time when that money will run out. When the money runs out, Medicare or Medicaid would pay for her care, so the hospital makes this profit from Mrs. Weisman’s horrible experience, and now when the money runs out they can offload the burden to the taxpayers.
The operative term is liability. What are their obligations and what is their liability? Although things are changing anybody in a similar situation right now will have an uphill battle. It’s not so much about legal liability to the hospitals, it’s about optics.