Compliance with Advance Directives: Wrongful Living and Tort Law Incentives

Abstract

Modern ethical and legal norms generally require that deference be accorded to patients' decisions regarding treatment, including decisions to refuse life-sustaining care, even when patients no longer have the capacity to communicate those decisions to their physicians. Advance directives were developed as a means by which a patient's autonomy regarding medical care might survive such incapacity. Unfortunately, preserving patient autonomy at the end of life has been no simple task. First, it has been difficult to persuade patients to prepare for incapacity by making their wishes known. Second, even when they have done so, there is a distinct possibility that those wishes will be disregarded or ignored and that a patient whose expressed choice was to refuse life-sustaining treatment will nonetheless be kept alive against his or her will. This problem is only exacerbated by the fact that patients finding themselves in this situation have routinely been denied adequate legal remedies on the grounds that continued life is not a compensable harm. This article rejects that reasoning, and in so doing, takes an important step toward more fully enforcing one's legal and moral right to refuse care at the end of life.

The authors argue for recognition of a wrongful living variant of battery in situations where physicians have recklessly or intentionally disregarded or misinterpreted advance directives, and offer guidance on some of the difficult questions relating to damages that have perplexed the courts and commentators in this area. While allowing recovery for wrongful living will not resolve many of the outstanding issues leading to low utilization of advance directives by patients or the need for interpretation of a patient's stated wishes in many circumstances, it will offer significant protection to those who have made their wishes clear.

[SSRN posted version is a pre-publication draft]

Keywords: medical ethics, life-sustaining treatment, autonomy, wrongful life, patient rights, right to refuse treatment, battery, negligence, damages, living wills