Samuel D Hodge Jr | Law and Anatomy



30 Temp. J. Sci. Tech. & Envtl. L. 221Temple Journal of Science, Technology & Environmental LawWinter 2011WRONGFUL PROLONGATION OF LIFE--A CAUSE OF ACTION THAT HAS NOT GAINED TRACTION EVEN THOUGH A PHYSICIAN HAS DISREGARDED A “DO NOT RESUSCITATE” ORDERNicole Marie Saitta,?Samuel?D.?Hodge, Jr.Copyright (c) 2011 Temple Journal of Science, Technology & Environmental Law; Nicole Marie Saitta;?Samuel?D.?Hodge, Jr.AbstractDoes a valid cause of action exit against a health care provider who intentionally disregards a “do-not resuscitate order” and prolongs a patient's life? This type of claim, known as a wrongful prolongation of life, has not gained traction in the United States. Although the issue has garnered media attention and has brought the importance of advance directives to the public's attention, a number of physicians still disregard a patient's last wishes for fear of legal reprisal or simply due to a lack of communication between patient and health care provider. This article examines the key cases in the area and explains the differences between living wills, advanced directives and proxies. Claims under a wrongful prolongation of life theory are inextricably linked to the constitutionally protected right to die and have been advanced under theories of battery, violations of the Constitution, breach of contract, infliction of emotional distress, and negligence. Despite the growing number of cases in this area, no recognized cause of action has emerged allowing for the awarding of monetary damages, especially for pain and suffering. The courts maintain that it is not their place to judge “an impaired life as being inherently less valuable than non- life.” A state-by-state analysis of the various legislative schemes that have been enacted concerning advanced directives will also be presented along with discussion of the Patient Self-Determination Act.Biographical SketchesSamuel?D.?Hodge, Jr.is a professor and chair of the Legal Studies Department at Temple University where he teaches both law and anatomy. He lectures nationally on anatomy and trauma and is considered one of the most popular speakers of continuing legal education courses in the country. He is the co-author ofAnatomy for Litigators, 2nd?Edition, ALI-ABA (2011) and has written more than 150 articles on medical/legal topics. Professor?Hodge?is a graduate of Temple University Beasley School of Law and the Graduate Division of the Law School. He is also a member of?*222?the Pennsylvania Bar Association and College of Legal MedicineNicole Marie Saitta is an assistant to Professor?Samuel?D.?Hodge?Jr., Chair of the Legal Studies Department at Temple University. She received an M.A. in English Literature from Villanova University and obtained a certificate from New York University's Publishing Institute in the School of Continuing and Professional Studies. An experienced academic researcher with a background in pre-medical studies, she is particularly interested in research pertaining to the intersection of law and medicine. She will be attending Temple University's Beasley's School of Law in the Fall of 2012.ArticleKarla Miller unexpectedly entered the hospital because of premature labor.1?The doctors noted that, if she delivered at that time, the child could be severely impaired because the fetus was only 23 weeks old.2?The parents instructed the physicians that no heroic measures should be undertaken to resuscitate their child.3?Nevertheless, the baby was born that night, and life- sustaining measures were used to keep the newborn alive, leaving her mentally and physically challenged.4?The parents filed suit against the health care providers, and the jury awarded over fifty-nine million dollars for ignoring what was tantamount to a “Do Not Resuscitate” order.5?This victory was short-lived, however, when the appellate court reversed the decision, stating that “a health care provider is not liable in tort for administering urgently needed life-sustaining medical treatment to a newborn infant contrary to pre-birth instructions of parents not to do so.”6American jurisprudence has established at least three causes of actions concerning the inception and expiration of life: “wrongful life,” “wrongful birth” and “wrongful living.”7?A suit for “wrongful life” is initiated by a child seeking damages against a health care provider for negligently failing to properly sterilize the parent.8?A “wrongful birth” claim is filed by the parents of an impaired child seeking to obtain damages for the birth of that child.9?These individuals maintain that, as the result of malpractice, the parents were prevented from exercising their right to terminate the pregnancy or avoid conception.10?However, in a “wrongful living” or “wrongful prolongation of life” case, the individual asserts a right to enforce an informed, competent decision to reject life-saving treatment.11*223?A wrongful prolongation of life claim is inextricably linked to the constitutionally protected right to die.12?Thus, in a “wrongful living” action, the plaintiff is maintaining a liberty interest in refusing undesired medical treatment. It is the denial of this liberty interest, caused by a health care provider who either negligently or intentionally disregards the wishes of a patient that gives rise to a wrongful prolongation of life cause of action.13Some form of valuation of life influences the legal issue in the three different causes of action. Simply put, a claim for wrongful living is adamages concept, just like a lawsuit for “wrongful whiplash“ or a “wrongful broken arm.”14?Nevertheless, the reported decisions for wrongful prolongation of life reflect a general reluctance by the courts to grant monetary recovery, especially for pain and suffering damages, claiming it is not their place to judge an impaired life as being inherently less valuable than non-life. It has been noted that these suits place the courts in a “damned if you do; damned if you don't” situation, where recognition of a doctor's ignorance of a living will has to be addressed within the limitations of a doctor's responsibility to maintain life.15?This article will explore the concept of wrongful prolongation of life in an attempt to hold health care providers responsible for ignoring “Do Not Resuscitate” orders and similar directives, as well as the statutory responses enacted to make a person's wishes known when a life saving decision must be made. A jurisdictional analysis will also be provided.Differences in Advance Directives, Proxies, and Living WillsTo better understand wrongful prolongation of life litigation, one must examine the differences among advance directives, proxies, and living wills. Approximately 20% of Americans and 50% of severely ill patients have advance directives.16?This is “a legal document allowing you to give instructions to . . . medical professionals about the types of medical treatment you wish to receive in the event that you become unable to make those decisions for yourself.”17?While state laws differ regarding compliance with and the liability stemming from these directives, all such documents can be modified or cancelled at any time.18?Within this framework, more specific instructions may be provided through “Health Care Proxies” and “Living Wills.”19A health care proxy enables an individual to choose another “to make medical?*224?decisions for you in the event that you become unable to make those decisions for yourself.”20?The appropriate form must be completed in order to designate a proxy, and the document may be referred to as a durable power of attorney for health care, a medical power of attorney, or the appointment of a health care agent.21?The selected individual may be any adult, not just a family member, and the law precludes the patient's doctor from serving in this capacity.22On the other hand, a living will can instruct a patient's family and health care provider concerning a person's desire for medical treatment.23?The more detailed these instructions, the better, since general directives “may not be enough to protect you from treatment you may not wish to receive because of medical conditions not specifically accounted for in your living will.”24A “Do-Not Resuscitate” order (DNR) falls within the ambit of an advance directive in that it orders medical personnel not to perform cardio-pulmonary resuscitation (CPR).25?Health care proxies can request a DNR order as well, but if no advance directives have been made, the patient's family can request one in the event that the patient cannot make the request directly.26?State laws also vary concerning compliance with advance directives, but a family member's request should be honored if the patient is terminally ill, unconscious, or if the physician concludes that CPR would be medically futile.27?A physician can issue a DNR directive if the health care provider deems CPR medically unnecessary and has discussed this fact with either the patient or family, providing there is time to do so. It must be noted, however, that DNR orders only apply to CPR and do not preclude blood transfusions, central line placement, and intensive care treatment.28Advance Directives: The Lessons of Karen Ann Quinlan and Terry SchiavoAdvance directives and prolongation of life questions are not foreign to the courts. This topic became a public issue in 1976 with the tragic case of Karen Ann Quinlan.29?A father sought guardianship of his 21-year-old daughter who was in a persistent vegetative state.30?Mr. Quinlan wanted to discontinue all extraordinary procedures necessary to sustain his daughter's life.31?The New Jersey Supreme?*225?Court, reliant on the physician's statement that there was no reasonable possibility of Karen ever emerging from her comatose state, agreed that life- support systems could be withdrawn on the basis of her right to privacy without criminal or civil liability.32?In this case, the court began to address questions concerning “prolongation of life” and noted the paucity of legislation in this area, a recurrent theme cited by the courts in subsequent years.33?The court also noted a difference between the self-infliction of deadly harm and self-determination against artificial life support in the face of certain death.34?Ultimately, this litigation paved the way for future courts to issue declaratory or injunctive relief against health care providers who refuse to carry out advance directives, and it has led to the enactment of state statutes that aim to protect a patient's right to die while upholding a physician's obligation to prolong life.35These issues were again prominently brought to the public's attention in 2005 with the Terry Schiavo litigation, which addressed the issue of a woman being kept alive on artificial life support.36?The patient's husband disagreed with Terry's parents over the removal of their daughter's food, fluids, and medical treatment.37?The parents alleged that the husband was violating their daughter's rights, and they sought a temporary restraining order to reverse his decision to withhold the patient's medical treatment.38?Throughout the proceedings, both parties argued over what they believed were the patient's intentions concerning artificial life support, though no concrete document regarding her wishes existed.39?The fierce debate that ensued reawakened the public's interest in advance directives. For instance, the National Hospice and Palliative Care Organization (NHPCO) received over 900 calls and 2,000 emails during the pending of the litigation from individuals interested in state-specific advance directives so they could avoid the controversy that was taking place in the Schiavo matter.40?Two weeks following Mrs. Schiavo's death, NHPCO had?*226?more than 200,000 downloads from its website for advance directives.41The Proliferation of Advance Directives and the Desire to Enforce ThemSome individuals have been quite emphatic in making their end-of-life decisions known, with one eighty-year old woman tattooing “Do Not Resuscitate” on her chest to reinforce the living will she had hanging on her refrigerator.42?While this measure may seem excessive, the increasing importance of living wills and advance directives has been highlighted by the very public cases over the right to die.States have attempted to regulate this area by enacting living will legislation.43?California passed the first living will statute in 1976,44and every state,45?and certain U.S. territories such as Guam, Puerto Rico,46?and the Virgin Islands,47?have statutes that address this topic. Although no two laws are identical, all address the formality with which a living will must be executed.48?Many state laws specifically mention the duties and obligations of health care providers with regards to honoring advance directives while also acting in the best interest of the patient.49?For instance, New Jersey's law upholds the right of health care providers to refuse to participate in withholding or withdrawing life sustaining measures while also requiring physicians to document patients' advance directives.50?South Dakota, while recognizing a patient's right to execute a living will, allows health care professionals to provide treatment to alleviate pain or discomfort.51?Oklahoma protects the patient's wishes by overriding the obligations of a physician or health care provider who may desire to render care to preserve life.52Even more prevalent than legislative pronouncements concerning the rights of a patient53?and the duties of physicians to honor advance directives54?are statutes that?*227?provide for immunity so long as the physician uses his or her best judgment in treating the patient.55Sixteen states, along with the U.S. Virgin Islands, mention “immunity” when discussing advance directives.56?At least seventeen states, along with Puerto Rico, specifically mention the word “liability” with regards to treating patients with advance directives, either by the administering of treatment or the following of a DNR order.57?Most of these statutes do not hold the health care provider criminally or civilly liable for removing life support in the presence of an advance directive.58?Some states, however, expand on this law by stating, as in Oklahoma, “the physician shall use his or her best judgment”?when delivering a standard of care.59?Texas mandates that the standard of care provided by a physician in the presence of an advance directive shall be equal to the “prudence and skill . . . exercised under the same or similar circumstances in the same or similar community.”60?Statutes appear to contain this general language so that, if a doctor ignores an advance directive under the pretense of following a certain standard of care, the physician will not be held liable for the disregard of it.State statutes that mention civil and/or criminal liability with regards to advance directives and/or using professional discretion include Tennessee, Oklahoma, Texas, Virginia, Georgia, Florida, Connecticut, Arizona, Washington, New York, Nevada, Massachusetts, Louisiana, Kentucky, Mississippi, Iowa, Colorado, Wisconsin, Rhode Island, Ohio, Nebraska, and the Virgin Islands.61?The language contained in these laws seems intentionally vague, allowing for physicians to comply with?*228?advance directives without liability while also protecting them if they do not act in accordance with a patient's directive but within “reasonable medical standards.”62?The bottom line is that these statutes recognize the existence of advance directives, but there is a disconnect between what the law requires and a physician's actual practice.63A natural question arises as to why physicians would resuscitate individuals with DNR orders.64?One reason may be the lack of communication between patient/care providers and the subsequent hospital/doctor,65?and this problem is only compounded when individuals are transported between facilities, nursing homes, and hospitals, often without the accompanying paperwork.66?As one physician noted:Lack of communication about the wishes of the patient in a time of medical crisis is the main cause for unintentionally bypassing “do not resuscitate”/ “do not intubate” orders. In these cases, the patient suddenly collapses from a heart attack or stroke. Often, a cardiac or respiratory arrest occurs at night when neither the family nor the patient's physician is on site. In these cases, the person is witnessed to collapse or is found unresponsive and a “code” is instantly called. At that moment, everyone comes running nurses, any available physicians, respiratory therapists to start resuscitation efforts. The intent is to save the life. In the haste to come to the aid of the patient, the DNR/DNI status may not be appreciated, especially if the medical event occurs at the start of a shift before the nursing staff has become familiar with all of their patients. The DNR status may not be identified until the hospital chart is reviewed or a family member is called. By then, the patient may have been resuscitated and stabilized. Some hospitals circumvent this situation by designating the resuscitation status directly on the patient identification wrist band at the time of admission to the hospital.67Some states provide the option of wearing a “Do-Not- Resuscitate” bracelet to inform doctors of a patient's resuscitative choice.68?For example, Pennsylvania?*229?defines an “Out-of-hospital do-not-resuscitate bracelet” as one “supplied by the [Department of Health of the Commonwealth] and issued by the attending physician, which may be worn at the patient's option to notify emergency medical services providers of the presence of an order.”69?Wisconsin allows doctors to “provide a DNR order in the form of a bracelet for adults with terminal illnesses who choose not to receive cardiopulmonary resuscitation (CPR), including cardiac compression, endotracheal intubation, artificial ventilation and defibrillation should they have a medical emergency while not hospitalized.”70?Montana and the District of Columbia use a “Comfort One”71?and “comfort care”72?bracelet to alert EMS of an advance directive. Virginia and several other states use bracelets and/or necklaces that have DNR instructions printed on them to notify emergency personnel when a person is not a patient in a hospital, nursing home, or licensed hospice.73?Interestingly, Wisconsin74?and a few other jurisdictions provide that the defacing or removing of a DNR bracelet by the patient is considered a revocation of the order.75?While bracelets may help to communicate a patient's final wishes, most of these measures are aimed at alerting EMS first-responders. Therefore, if the bracelet is inadvertently marred or removed in the chaotic activity of an emergency situation, physicians may not be properly informed when patients are transferred from one location to another.76Why Are Advance Directive Ignored?Communication errors may be one reason why doctors fail to adhere to a patient's advance directives. However, the fear of reprisal from family members when following such instructions weighs heavily on doctors' minds.77?While statutes exist to protect physicians in these situations,78?this does not always insulate them from lawsuits. Some doctors, therefore, err on the side of human life when making decisions about resuscitation and other life saving measures, thereby ignoring a living will and adhering to the belief that they might be subject to a damages lawsuit.79?This is what happened inAllore v. Flower Hospital80?where the patient's living will was ignored by his health care providers despite their awareness of its?*230?existence.81?Under the terms of the living will, the patient wanted “no life-sustaining treatment” in the event of a terminal condition or “permanently unconscious state.”82?After being repeatedly admitted to the hospital for pulmonary problems associated with asbestosis, he was intubated and mechanically ventilated because Allore's advance directive was unknown to the treating physicians.83?In fact, the patient's chart read, “In the event of cardiac standstill, ventricular fibrillation or respiratory arrest, resuscitation measures are to be initiated immediately using ACLS protocols,” measures which directly contradicted the patient's wishes.84?Unfortunately, Mr. Allore's repeated hospitalizations caused his end-of-life directions to be mis-communicated in the shuffle of paperwork and changing of physicians. In a subsequent lawsuit, the estate was barred from recovering damages for the wrongful prolongation of life.85?The court noted that since the “harm” was the benefit of life, it would not provide compensation.86?The only damages allowed were those related to the alleged battery for the resuscitation efforts against the patient's wishes.87?Thus, the recovery of medical costs and pain and suffering could not be awarded since they related to the wrongful prolongation of the decedent's life and not a direct result of a battery or negligence.88Allorewas decided under the doctrine of implied consent, a policy which protects physicians when providing treatment in emergencies “without the specter of liability for lack of consent.”89?This policy is not applicable when an advance directive exists since an individual has already made a choice regarding life- sustaining measures. However, a physician can still act within means of a standard of care, especially when an advance directive is not clearly known within the means.90?In this regard, the court recognized that there was no evidence that the attending physician was aware of Allore's refusal of treatment, and since he signed a consent form for treatment when admitted to the hospital,?“no issue of material fact existed as to implied consent on the part of Frank Allore to the patient's intubation and ventilation.”91*231?Allore might seem like an isolated incident of ignoring a patient's wishes, but it is not. One survey found that only 36% of individuals with advance directives had mention of this fact in their medical records and less than 1% actually had the document filed with their chart.92?The study concluded that advance directives fail to have a significant effect on orders regarding resuscitation.93?As research has shown, “medical care at the end of life is often inconsistent with patient choice even when the patient has made a choice known.”94Other studies have revealed that the medical profession's ambivalence toward advance directives often leads to their failure to comply with these orders for several reasons: (1) the fear of liability; (2) the perception that directives interpose an unnecessary additional control over, and interfere with, the physician's professional actions; and (3) the perception that directives implicitly question the physician's judgment of the patient's best interests.95?This last factor lends itself to the moral extremism that some physicians may feel. As noted:In rare instances, a health care provider may have a powerful personal moral bias that all life is worth saving and that everything possible should be done for every patient. All through their training, “physicians-to-be” are taught that life is precious and they are to do everything to their best ability to improve the life of their patients. At the conclusion of medical school, some take the Oath of Hippocrates (“. . .I will prescribe regimens for the good of my patients according to my ability and my judgment and never do harm to anyone. . ..”) to affirm this commitment. In some cases, disease becomes a challenge and if a patient dies, the physician perceives themselves as a failure. In these situations, the physician may exceed their boundaries and intentionally ignore the DNR/DNI order.96Despite possible feelings of moral obligations, physicians are ultimately required to assess the degree of severity of the patient and treat the person accordingly. This, in and of itself, may affect a physician's prescribed course of treatment.While a patient may have a DNI [do not intubate] order on the chart, they may develop a treatable pneumonia or other respiratory difficulty responsive to antibiotics or other medications. In these cases of a reversible respiratory problem, intubation and ventilatory support may be necessary to buy time until the medications have time to work. Thus, while the intubation is contrary to the DNI request, it is temporary and does not represent a long term commitment. This?*232?decision and its reasoning must be discussed with the patient and/or the family.97Doctors often walk a fine line between a patient's wishes and medical necessity. Another factor that might influence the disregarding of a DNR order includes the financial motivation to prolong treatment.98?Even when an advance directive exists, the patient's decisions are not always clear since living wills often contain general language that does not refer to specific life-sustaining treatment.99?This situation may frustrate a conflicted family that might be in disagreement about an individual's end-of-life care. “While a DNR/DNI status may be indicated in the chart, the division within the family creates a hostile environment for the medical staff.?As such, should a cardiac or respiratory arrest occur, the nurses and physicians prefer to resuscitate the patient until the family reaches a consensus.”100?Thus, it is important to be quite specific with end-of-life directives and to apprise one's family of these decisions.While overly cautious resuscitation might have been the practice in the past, a recent study found “do-not-resuscitate” orders to be an independent risk factor for poor surgical outcome.101?The researchers concluded that surgical patients with DNR orders sustain postoperative complications, with 1 in 4 dying within 30 days of surgery.102?In fact, people with DNR orders may be twice as likely to die soon after surgery regardless of the procedure or health status of the individual before the operation.103?Some attribute this statistic to the overall poorer health of this population, but the Director of Clinical Ethics at Stanford's Center for Biomedical Ethics claims these directives “subconsciously affect how doctors and nurses treat patients. For example, they order fewer tests and don't enter the patient's room as often.”104The Patient Self-Determination ActThe Patient Self-Determination Act (PSDA) was found by the United States Supreme Court inCruzan v Missouri Department of Health105to recognize the constitutional right of an individual to make medical decisions.106?As noted, “A competent person has a liberty interest under the Due Process Clause in refusing unwanted medical treatment.”107?By way of background, PSDA requires health care?*233providers receiving Medicare and Medicaid funds to inform patients of their right to make a living will and have a health care proxy.108Hospitals, nursing facilities, home health agencies, hospice programs, and certain health maintenance organizations are included in this legislation, and they are required to ask patients about their advance directives and to document those instructions in the medical records.109?This federal law is important because it reinforces the patient's ability to make his final wishes for medical care known, and it offers an added layer of protection to the various state statutes on living wills.110?Equally as important, the term “wrongful prolongation of life” has made its way into legal vernacular based on the increasing number of claims in recent years using this term to recover damages.111?In these cases, the “wrongful prolongation of life” has required a close look at state and federal laws with regards to death, living wills, and advance directives.112?While state laws might be used as the basis for a cause of action against a health care provider who ignores a living will or advance directive, a violation of these statutes alone has not been utilized as the foundation for a wrongful prolongation of life lawsuit; rather, theories of liability for battery, negligence, violation of constitutional rights, and infliction of emotional distress have been the basis for these lawsuits.113Cruzan has been used as a precedent for a number of wrongful prolongation of life cases that have made their way to the courts since the inception of the PSDA.114?For instance, in Rosebush v. Oakland County Prosecutor,115?a Michigan court cited?*234?Cruzan to reinforce the principle that a competent adult has the right to decline medical treatment or lifesaving methods.116?The facts show that Joelle Rosebush was left in a vegetative state after a car accident, but her injuries did not leave her “brain dead.”117?The patient's family sought to have her life-sustaining treatments stopped, and the court recognized theories of battery and informed consent of the patient when a doctor refused to adhere to such requests.118?While the court ordered the removal of life support, a dissenting judge noted:Courts in foreign jurisdictions have recognized the unique policy and societal implications of removing the life-support system of a person in a persistent vegetative state. Because of the complex and sensitive nature of issues that are related to the removal of life-support systems, these courts urged that judicial policy gives way to the legislative process in order to insure that the interests of the constituency are served. Similarly, this Court has recognized that where moral and public policy matters are at issue, intermediate appellate judges should forgo their desire to create new law in favor of the legislative process.119This comment aptly pinpoints the reason for the hesitancy of the courts to prescribe rules for cases concerning these sensitive issues. The courts do not want to legislate and would rather leave the matter to the legislature to create a new cause of action for wrongful prolongation of life. Nevertheless, the majority inRosebush acknowledged that a state's interests may outweigh the right to refuse life-sustaining treatment when the issue involves the preservation of life, protection of innocent third parties, prevention of suicide, and maintenance of ethical standards in the medical profession.120?Thus, while acknowledging advance directives, the court cited caveats that require at least two physicians' diagnoses that a patient is terminally ill and the prognosis that there is no reasonable possibility of future recovery.121Wright v. Johns Hopkins Health Systems122?is another case that draws attention to a state's law regarding advance directives.123?This Maryland case involved an individual with Acquired Immune Deficiency Syndrome (AIDS) who was resuscitated after a cardiac arrest.124The person's estate sued the health care providers, claiming they “wrongfully prolonged the patient's life” when he had a?*235?living will that stated his desire for no resuscitation.125?Ultimately, the court noted that the patient's statements in the emergency room about a DNR order were insufficient.126?The court skirted the issue of wrongful prolongation of life by denying the claim for damages on other grounds and concluding that it is up to the legislature to decide whether wrongful prolongation of life is a proper tort.127?This case is yet another example of how the courts have found ways to not recognize causes of action for wrongful prolongation of life.128The Indiana court inTaylor v. Muncie Medical Investors129?also refused to recognize this cause of action.130?The facts demonstrate that Taylor executed a living will before entering a nursing home, and a DNR order while in the nursing home, both of which were ignored after she suffered a stroke that left her comatose.131?An action was brought against the nursing home for the wrongful prolongation of life, but the court denied the claim, noting that its state's Health Care Consent Act132?provides a remedy that already exists under the Indiana Code.133New York considered the issue of wrongful prolongation of life inCronin v. Jamaica Hospital Medical Center134?and ruled that such a case could not be maintained since being alive does not constitute an injury.135?InGrace Plaza of Great Neck, Inc. v. Elbaum,136another New York court issued a similar ruling137?and even found that the nursing home did not forfeit its right to payment for treatment provided to the patient after the nursing home refused to follow the spouse's instruction to remove the patient's feeding tube.138?Illinois discussed the issue inGragg v. Calandra,139?a case in which a patient underwent open-heart surgery without consent and was placed on life-support despite a living will that contained?*236?instructions to the contrary.140?The defendant's medical staff director stated that he would not honor the living will.141?The facts show that the patient never regained consciousness and died.142?A lawsuit was filed premised upon violations of the Illinois Family Expense Act and Consumer Fraud and Deceptive Business Practices Act.143?In this regard, the plaintiff claimed that the defendants “represented to the public that patients for cardiology services would promptly receive care for cardiac patients who would be in surgery within an hour.”144?The decedent's family also stated that the medical center claimed it had a complete cardiovascular unit with a catheterization lab and that staff would help patients choose the right doctor.145?The court denied the claim under the Family Expense Act, asserting that the legislation only allowed a spouse to recover expenses incurred due to an injury.146?The court also stated that the plaintiff failed to establish how the medical center's advertisements were false and that there was no causal connection between the alleged false advertising and the particular heart surgery that led to the plaintiff's injuries.147?In addition, the family sought damages for intentional infliction of emotional distress caused by the doctor's public accusations that they were trying to kill their family member by withholding life-sustaining treatment.148?Surprisingly, the appellate court found that the trial judge erred in dismissing the count for intentional infliction of emotional distress.149Some attorneys have crafted lawsuits for wrongful prolongation of life under a breach of contract theory150?such as inScheible v. Joseph L. Morse Geriatric Center, Inc.151In this Florida litigation, it was alleged that a nursing home disregarded the?*237?patient's advance directives under the Patient Self-Determination and Nursing Home Resident's Rights Acts.152?The latter legislation provides that a patient has “[t]he right to refuse medication or treatment and to be informed of the consequences of such decisions, unless determined unable to provide informed consent under state law.”153?The breach of contract claim was premised upon the theory that the living will/advance directive was incorporated into the contract for the patient's care.154?A jury was favorably impressed with the contract claim and awarded $150,000.155?On appeal, the court had to decide whether the resuscitative measures taken contrary to the decedent's wishes resulted in “a manner of death other than that which would have occurred absent those measures.”156?The court ultimately concluded that the estate had no cause of action for violating the patient's bill of rights.157Prior to the 1997Allore case,158?Ohio had other wrongful prolongation of life claims which were influenced by legislation in this area. In 1991, the state adopted a version of the Uniform Right of the Terminally Ill Act159?and also expanded the powers under a durable power of attorney for health care.160?This Act details the right to refuse life-sustaining treatment,161?the right to die, and acknowledges living wills.162?InAnderson v. St. Francis-St. George Hospital,163?just two years beforeAllore, damages were sought for the wrongful prolongation of life of an 82 year-old man who wanted no extraordinary measures utilized to prolong his life, but was resuscitated despite a “no code blue” order in his chart.164?In the first appeal, the court held that “wrongful living is not a compensable loss in Ohio.”165?The patient's estate could not recover damages just for the patient being alive after resuscitation.166?However, the violation of an adult patient's right to refuse treatment was addressed, a right affirmed by the Ohio statutes and federal law which included the Uniform Right of the Terminally Ill Act.167?The second appeal defined a claim of wrongful living as a damages concept, and thus looked at the facts under?*238?claims of negligence and battery.168?Ultimately, the Ohio Supreme Court held that (1) there is no cause of action for “wrongful living,” and (2) the patient suffered no legally compensable damages as a result of the defibrillation of his heart.169?Thus, while the first appeal established that one has the right to decline life-saving treatment and health-care providers can be forced to comply with these directives, the second review established that tort law is not a means of redress when life-sustaining measures have already been taken.170ConclusionWrongful prolongation of life cases have been advanced under theories of negligence, battery, violations of the Constitution, breach of contract, and infliction of emotional distress, but no recognized cause of action has really emerged allowing for the awarding of monetary damages.171?Various legislative enactments and high-profile cases have made the public more aware of the importance of advance directives,172?but the recognition of these documents by health care professionals does not remain consistent.173?Until legislation creates a cause of action for the wrongful prolongation of life, living wills and advanced directives merely remain a way of making one's end of life wishes known, which wishes may or may not be honored.174?The only viable remedy to insure compliance with a person's life-ending wishes is by filing an injunction or declaratory action seeking to enforce these documents. Recovering economic and pain and suffering damages is not a realistic option at the present time.Footnotes1HCA, Inc. v. Miller, 36 S.W.3d 187, 190 (Tex. App. 2000),aff'd,?118 S.W.3d 758 (Tex. 2003).2Id.3Id.4Id.5Id. at 191.6HCA, 36 S.W.3d at 189.7Anderson v. St. Francis-St. George Hosp., Inc., 671 N.E. 2d 225, 227 (Ohio 1996).8Id.9Id.10Id.11Id.12The right to die was recognized by the United States Supreme Court in?Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261(1990).13Anderson, 671 N.E. 2d at 227.14Id.15See generally?Burks v. St. Joseph's Hosp., 596 N.W.2d 391 (Wis. 1999)?(discussing a doctor's responsibility to make medically based decisions whether to treat patients).16Kellen F. Rodriguez,?Suing Health Care Providers for Saving Lives, 20 J. Legal Med. 1, 2 (1999).17BBB of Metropolitan New York,Advance Directives, - http:// newyork.SitePage.aspx?site=24&id=d1948f97-bc30-433b-a8b3-936c802ac77820 (last visited Dec. 27, 2011).18Id19Id.20Id.21Id.22Advance Directives,supranote 17.23Id.24Id.25Id., Do Not Resuscitate Orders, (last visited Dec. 27, 2011).27Id.28Id.29See Time Specials,Top 10 Comas, http:// time/specials/packages/article/0,28804,186494018649391864909,00.html (last visited Nov. 4, 2011) (stating that the Quinlan case became the first “right to die” case in U.S. legal history).30In re Quinlan, 355 A.2d 647, 651 (N.J. 1976).31Id.32Id at 669. According to?Mack v. Mack, 618 A.2d 744, 755 (Md. 1993), a number of courts have found that a person's right to refuse treatment is premised on a federal or state constitutional right of privacy.See, e.g.,?Rasmussen v. Fleming, 741 P.2d 674, 682 (Ariz. 1987)?(federal and state constitutional provide a right to a refuse treatment);? HYPERLINK "(sc.Search)" Bouvia v. Super. Ct., 179 Cal. App. 3d 1127?(federal and state);In reSeverns, 425 A.2d 156, 158 (Del. Ch. 1980)?(federal);In reA.C., 573 A.2d 1235 (D.C. 1990)?(federal);?In re Guardianship of Browning, 543 So.2d 258, (Fla. Dist. Ct. App. 1989)?(state),aff'd,568 So.2d 4 (Fla. 1990);?Superintendent of Belchertown State Sch. v. Saikewicz, 370 N.E.2d 417 (Mass. 1977)?(federal); In re?Quinlan, 355 A.2d at 663 (N.J. 1976)?(federal and state),cert. denied,?429 U.S. 922 (U.S. Nov. 1, 1976)?(No. 76-300);?Leach v. Akron Gen. Med. Ctr., 426 N.E.2d 809, 814 (Ohio Com. Pl. 1980)?(federal); and In reColyer, 660 P.2d 738, 743 (Wash. 1983)(federal and state). Although the United States Supreme Court's decision inCruzan, 497 U.S. at 265,?made no determination on the subject, most of the Justices either stated or implied that a liberty interest under the Fourteenth Amendment gives rise to a constitutionally protected right to refuse life saving hydration and nutrition.33In re Quinlan, 355 A.2d at 652, 664.34Id.at 665.35Diane E. Hoffman & Jack Schwartz,Who Decides Whether a Patient Lives or Dies?,Trial,Oct. 2006, at 30-31.36Schiavo ex rel v. Schiavo, 403 F.3d 1223 (11th Cir. 2005).37Id. at 1231.38Id. at 1225.?Florida's legislation contemplates a process for designation of a proxy in the absence of an executed advance directive and allows for judicial resolution of disputes concerning decisions made by the proxy. Where a decision by the proxy is challenged by the patient's other family members, it is ripe for the parties to seek “expedited judicial intervention.”Id. at 1233.39Id. at 1235.40Holly Fernandez Lynch et al.,Compliance with Advance Directives: Wrongful Living and Tort Incentives, 29J. Legal Med. 133, 138 (2008).41Id. at 138.42Eideard,Great- grandma Tattoos “DO NOT RESUSCITATE” on Her Chest, Dvorack Uncensored (May 19, 2006), Shields Stiefel,A Time to Live, A Time to Die, 24Akron L. Rev. 699 (1991).44Id. at 700.45Frequently Asked Questions (FAQ) about the U.S. Living Will Registry, U.S. Living Will Registry, (last visited Oct. 24, 2011).46Arthur S. Berger, When Life Ends, 34 (Greenwood Publg, 1995), ? id=n3j40KnvR8YC&pg=PA34&lpg=PA34&dq=US+territories+with+living+will+statutes&source= bl&ots=ZX0TRESJZt&sig=noUYqes8CXoXXFdgMnBGSavGAYM&hl=en&ei=IgCmTt6YOOre0QGcq834DQ& sa=X&oi=book&uscore;result&ct=result&resnum=6&ved=0CGIQ6AEwBQ#v=onepage&q=US%20territories%C20with%C20living%C20will%s?tatutes&f=false.47Daniel J. Gravel, The Importance of Estate Planning,Virgin Islands Law Blog (June 25, 2010), note 43, at 703.49Martha S. Swartz, “Conscience Clauses” or “Unconscionable Clauses”: Personal Beliefs Versus Professional Responsibilities, 6Yale J. Health Pol'y L. & Ethics 269, 282 (2006).50N.J. Stat. Ann. § 26:2H-62 (West 1992).51S.D. Codified Laws§ 34-12D-9 (West 2007).52Okla. Stat. Ann. tit.63, § 3101.2?(West 2006).53Id.54S.D. Codified Laws§ 34-12D-9.55E.g., Matthew S. Ferguson,Ethical Postures of Futility and California's Uniform Health Care Decisions Act, 75 S. Cal. L. Rev. 1217, 1236-37 (2002).56Ohio Rev. Code Ann. § 1337.15 (West 2011);R.I. Gen. Laws Ann. § 23-4.10-7 (West 2011);Va. Code Ann. § 54.1-2988 (West 2011);Wis. Stat Ann. § 154.07 (West 2011);V.I. Code Ann. tit. 19, § 194 (West 2011);Ariz. Rev. Stat. Ann.§ 36-3205 (West 2011);?Colo. Rev. Stat. Ann. § 15-14-508 (West 2011);Fla. Stat. Ann. tit. XLIV, § 765.109 (West 2011); 755Ill. Comp. Stat. Ann. 45/4-7 (West 2011);Iowa Code Ann. § 144B.9 (West 2011);La. Rev. Stat. Ann. § 40:1299.64.5 (West 2011);Me. Rev. Stat. Ann. tit. 18-A, § 5-809 (West 2011);?Miss. Code Ann. § 41-41-219 (West 2011);?Neb. Rev. Stat. Ann.§ 20-410 (West 2011);?Nev. Rev. Stat. Ann. § 449.630 (West 2011); N.Y. Pub. Health Law§ 2986.7 (McKinney 2011).57Okla. Stat. Ann. tit. 63, § 3101.10 (West 2011);Tenn. Code Ann. § 34-6-208 (West 2011);Tex. Health & Safety Code Ann.§ 166.160 (West 2011);Va. Code Ann. § 54.1-2988 (West 2011);Wash. Rev. Code Ann. § 70.122.051 (West 2011);P.R. Laws Ann. tit. 24, § 3659 (West 2008);Ariz. Rev. Stat. Ann. § 36-3205 (West 2011);Conn. Gen. Stat. Ann.§ 19A-571 (West 2011);Fla. Stat. Ann. tit. XLIV, § 765.109 (West 2011);Ga. Code Ann.§ 31-32-10 (West 2011);Ky. Rev. Stat. Ann.§ 311.635 (West 2011);La. Rev. Stat. Ann. § 40:1299.58.8 (West 2011);?Mass. Gen. Laws Ann. ch. 201D, § 8 (West 2011);Mich. Comp. Laws Ann. § 700.5511 (West 2011);Mo. Ann. Stat. § 459.040 (West 2011);Nev. Rev. Stat. Ann. § 449.630 (West 2011);N.Y. Pub. Health Law§ 2986 (McKinney 2011).58E.g.,?Mass. Gen. Laws Ann. ch. 201D § 8 (West 2011).59Okla. Stat. Ann. tit. 63, § 3101.10?(West 2011).60Tex. Health & Safety Code Ann. §166.160 (West 2011).61Okla. Stat. Ann. tit. 63, § 3101.10;Tenn. Code Ann. § 34-6-208;Tex. Health & Safety Code Ann.§ 166.160;Va. Code Ann. § 54.1-2988;?Wash. Rev. Code Ann. § 70.122.051;Ariz. Rev. Stat. Ann. § 36-3205;?Conn. Gen. Stat. Ann. § 19a-571(2011);Fla. Stat. Ann. § 765.109;Ga. Code Ann.§ 31- 32-10;Ky. Rev. Stat. Ann.§ 311.635;?La. Rev. Stat. Ann. § 40:1299.58.8;?Mass. Gen. Laws Ann. ch. 201D, § 8; Mich. Comp. Laws Serv.?§ 700.5511 (LEXIS 2011);Nev. Rev. Stat. Ann.§ 449.630;?N.Y. Pub. Health Law§ 2986;Iowa Code Ann. § 144B.9;Colo. Rev. Stat. Ann. § 15-14-508;V.I. Code Ann. tit. 19, § 194;Wis. Stat Ann. § 154.07;?R.I. Gen. Laws Ann. § 23-4.10-7 (West 1956);Ohio Rev. Code Ann. § 1337.15;Neb. Rev. Stat, § 20-410.62E.g.,?V.I. Code Ann.tit. 19, § 194 (West 2011).63SeeM. Rose Gasner,Financial Penalties for Failing to Honor Patient Wishes to Refuse Treatment, 11St. Louis U. Pub. L. Rev. 499, 502 (1992) (stating while a legal right to make choices about medical treatment is firmly established some physicians continue to only focus on what is medically appropriate or their own liability causing them to make self- protective decisions).64See Jo-Anne Herina Jeffreys,Advance Directives: Are They Worth the Paper They're Written On?, 190N.J. Lawyer 17, Apr. 1998 (stating “Despite the enactment of state and federal statutes which provide for advance directives, studies indicate that at least 25 percent of these validly executed documents are not honored.”).65Id. at 18.66See Rodriguez,supra note 16 (stating in cases where a doctor is unfamiliar with a patient they do not have the time or incentive to learn the details of treatment refusal).67E-mail from Jack E. Hubbard, Ph.D., M.D., Dr. of Adult Neurology, Minneapolis Clinic of Neurology (June 24, 2011) (on file with the author).68Wis. Stat Ann. § 154.19(2)(a)(1) (West 2011).6920Pa. Stat. Ann. § 5483 (West 2011).70Jane Barclay Mandel, Wisconsin's Do Not Resuscitate Bracelet Law Raises Legal and Medical Issues, 70Wis.?Law. 14, 14 (1997).71Mont. Admin. R. 37.10.105 (2011).72D.C. Code § 70651.04 (West 2011).73National Association of Emergency Medical Services Directors & National Association of Emergency Medical Services Physicians, National Guidelines for Statewide Implementation of EMS “Do Not Resuscitate” (DNR) Programs (1994);?Ga. Code Ann. § 31-39-6.1.74Wis. Stat. Ann. § 154.21.75N.H. Rev. Stat. Ann. § 137-J:29 (West 2011).76Id.77Renee Martin, Liability for Failing to Follow Advance Directives, Physician's News Digest (1999),available at law/999martindv.html.78Ohio Rev. Code Ann. § 2133.22.79Martin,supra note 77.80699 N.E.2d 560, 561- 62 (Ohio Ct. App. 1997).81Id.82Id.at 561.83Id.at 561- 62.84Id. at 561.85Allore, 699 N.E.2d at 565.86Id.at 563.87Id.88Id.,What is Implied Consent?, , supra note 16.91Allore, 699 N.E.2d 560. In a variation of a wrongful prolongation of life claim, a number of courts have considered wrongful life claims in the context of the birth of child with a physical impairment. As noted inLininger v.? HYPERLINK "(sc.Search)" Eisenbaum, 764 P.2d 1202 (Colo. 1988), courts have disallowed wrongful life claims on the theory that the baby sustained no injury or on the grounds that if the child did suffer an injury, damages would be impossible to determine.?Elliott v. Brown, 361 So. 2d 546 (Ala. 1978); HYPERLINK "(sc.Search)" Moores v. Lucas, 405 So. 2d 1022 (Fla. App. 1981);?Blake v. Cruz, 698 P.2d 315 (1984);? HYPERLINK "(sc.Search)" Siemieniec v. Lutheran General Hosp., 512 N.E.2d 691 (1987);? HYPERLINK "(sc.Search)" Bruggeman v. Schimke, 718 P.2d 635 (1986);? HYPERLINK "(sc.Search)" Pitre v. Opelousas General Hosp., 517 So.2d 1019 (La. App.),cert granted,?519 So. 2d 105 (La. 1987);? HYPERLINK "(sc.Search)" Strohmaier v. Assoc. in Obstetrics & Gynecology, 332 N.W.2d 432 (1982);?Smith v. Cote, 513 A.2d 341 (1986);?Becker v. Schwartz, 386 N.E. 2d 807(1978);? HYPERLINK "(sc.Search)" Azzolino v. Dingfelder, 337 S.E. 2d 528 (1985),cert. denied,?479 U.S. 835 (1986);?Ellis v. Sherman, 515 A.2d 1327 (1986);?Speck v. Finegold, 439 A.2d 110 (1981);?Nelson v. Krusen, 678 S.W.2d 918 (Tex. 1984);? HYPERLINK "(sc.Search)" Dumer v. St. Michael's Hosp., 233 N.W. 2d 372 (1975).92Lynch et al., supra note 40, at 137.93Id. at 137.94Id.at 135- 36.95Jeffreys, supra note 64, at 18.96Hubbard, supra note 67.97Id.98Jeffreys, supra note 64, at 18.99Rodriguez, supra note 16.100Hubbard, supra note 67.101Hadiza Kazaure, Sanziana Roman & Julia A. Sosa,High Mortality in Surgical Patients with Do-Not-Resuscitate Orders, 146 Archives of Surgery 8 (2011)available at - http:// archsurg.cgi/content/abstract/146/8/922 (last visited Dec. 27, 2011).102Id.103Jennifer Warner, DNR Orders May Affect Surgical Outcomes, WebMD, April 18, 2011, - U.S. 261 (1990).106Id.;?Pub. L. No. 101-508?codified at?42 U.S.C. 1395cc.107Cruzan, 497 U.S. at 278. By way of contrast, the?New York Court of Appeals inIn reStorar, 420 N.E. 2d 64,?cert. denied,?454 U.S. 858(1981), refused to base a right to refuse medical treatment by the constitutional right of privacy. Rather, it found such a right “adequately supported” by the informed consent doctrine. Id. at 377.108Lynch et al., supranote 40 at 135.109Martin,supra note 77.110Id.111See Maxwell J. Mehlman,Wrongful Prolongation of Life?, The Doctor Will See You Now, Feb. 1, 2001, http:// content/bioethics/art1973.html?getPage=1.112Wright v. Johns Hopkins Health Sys. Corp., 728 A.2d 166, 169 (Md. 1999)?(citing Maryland's Health Care Decisions Act, which overlies an individual's right to refuse life-sustaining medical treatment);?Rosebush v. Oakland Cnty. Prosecutor, 491 N.W.2d 633, 638 (Mich. Ct. App. 1992)?(mentioning?M.C.L. § 700.496?which addresses the appointment of “a patient advocate to make medical-treatment decisions”);?Anderson v. St. Francis-St. George Hosp., No. C-930819, 1995 WL 109128 (Ohio Ct. App. 1995)?(citing the Uniform Right of the Terminally Ill Act, R.C.2133.01, and powers under a durable power of attorney, R.C.1337.11 through 1337.17);? HYPERLINK "(sc.Search)" \l "co_pp_sp_735_1132" Scheible v. Joseph L. Morse Geriatric Ctr., Inc., 988 So. 2d 1130, 1132 (Fla. Dist. Ct. App. 2008)?(citing a willful disregard of health care directive under chapter 765, Florida Statutes (1995));HCA, Inc. v. Miller, 36 S.W.3d 187, 191-92 (Tex. Ct. App. 2000)?(referencing the Advance Directives Act).113Rodriguez, supra note 16, at 7-8.114See?Wright, 728 A.2d at 172 (Md. 1999)?(involving an AIDS patient whose life had been prolonged through heart resuscitation);? HYPERLINK "(sc.Search)" \l "co_pp_sp_506_1223" Schiavo v. Schiavo, 403 F.3d 1223, 1223 (11th Cir. 2005)?(involving the death of a girl who was removed from life support pursuant to a court order);?Rosebush v. Oakland Cnty. Prosecutor, 491 N.W.2d 633, 635(Mich. Ct. App. 1992)?(involving parents of a minor wishing to remove their vegetative daughter from life support);?Grace Plaza of Great Neck v. Elbaum, 623 N.E.2d 513, 513 (N.Y. 1993)?(involving the spouse of a vegetative patient who refused to pay for the services of a nursing home after the spouse requested that a feeding tube be removed);?Montalvo v. Borkovec, 647 N.W.2d 413, 413 (Wis. Ct. App. 2002)?(involving a patient suing doctors for performing life-saving resuscitation on a premature baby without consent);?HCA, 36 S.W.3d 187?(involving lawsuit against hospital for performing resuscitation on premature infant despite the parents giving specific instructions not to do so).115491 N.W.2d 633.116Id.at 635-36.117Id. at 635.118Id.119Id.at 641.120Rosebush, 491 N.W.2d at 637-38?(suggesting that the state can intervene in these decisions when it is absolutely necessary, but only when it is absolutely necessary).121Id.at 637-38.122728 A.2d 166 (Md. 1999).123Id.124Id.at 171.125Id. at 173.126Id. at 177.127Wright, 728 A.2d at 179?(citing previous instances where the court deferred to comprehensive legislation related to a patient's right to refuse medical treatment).128SeeSlawek v.?Stroh, 215 N.W. 2d 9, 22 (Wis. 1974)?(stating that recognition of such cause of action “would have vast social ramifications and the creation of such a cause of action is the type of public policy decision that should be made by the people of this state or elected legal representatives”);?McVey v. Englewood Hosp. Assoc., 524 A.2d 450, 452 (N.J. Super. Ct. App. Div. 1987)?(rejecting a claim for damages when a daughter brought suit against a hospital for failure to honor the patient's end-of-life wishes. The court found for the defendants, stating “medical professionals are not now, and should not be, charged with the nonmedicalduty to determine the existence, veracity and effect of an incompetent's orally expressed wishes”); McGuinness v. Barnes,No. A-3457-9425, slip op. (N.J. Super. Ct. App. Div. 1996) (rejecting a wrongful living claim when a patient became disabled after a surgery he claimed he would not have had if he knew of the risks).129727 N.E.2d 466 (Ind. Ct. App. 2000).130Id. at 472.131Id.at 467-68.132Ind.Code §§ 16-36-1-1?to?16-36-1-14.133Id. at 471.13460 A.D.3d 803 (N.Y. App. Div. 2009).135Id.136623 N.E.2d 513 (N.Y. 1993).137Id.138Id. at 516 (“[u]nder these circumstances, plaintiff did not breach its contract, and defendant was not excused from paying for his wife's care”).139696 N.E.2d 1282 (Ill. App. Ct. 1998).140Id. at 1285.141Id.142Id.143Id.144Gragg, 696 N.E.2d at 1288.145Id.146Id. at 1286.147Id. at 1288-89.148Id. at 1289-90.149Gragg, 696 N.E.2d at 1290.Despite a favorable outcome in Gragg, appellants are not always successful in their claims of emotional distress as was the case withBartling v.?Glendale Adventist Medical Center, 184 Cal. App. 3d 961 (1986). In this case, much like inGragg, the plaintiffs sought damages from emotional distress arising out of the hospital's efforts to preserve the patient's life; however, the California Court of Appeals upheld the trial courts verdict in favor of the defendants.Bartling, 184 Cal. App. 3d at 970-72. The difference between these cases is the public nature with which the defendant, in Gragg, accused the decedent's family of ultimately trying to kill him by withholding life-sustaining measures,696 N.E.2d at 1290,?versus the private emotional distress endured when caring for a persistently vegetative family member inBartling,?184 Cal. App. 3d at 971.150Filing a suit under violations of state and federal laws has proven to be a better avenue than filing under a violation of Constitutional Law. Pennsylvania considered the issue in a case based upon an alleged violation of the Pennsylvania Advance Directive for Health Care Act,?20 Pa.C.S. § 5401 et seq.. in? HYPERLINK "(sc.Search)" Klavan v. Crozer-Chester Medical Center, 60 F. Supp. 2d 436 (E.D. Pa. 1999), where the plaintiff attempted suicide but was resuscitated despite an advance directive to the contrary.Klavan, 60 F, Supp. 2d at 439-40. Suit was subsequently filed for a violation of the patient's due process and constitutional rights, a claim that was not upheld by the court.Id. at 444-45.?While the litigation was unsuccessful, Klavan attempted to show that, when the defendants refused to honor his advance medical directive, they took away his decision-making power.Id. at 443- 44.151988 So. 2d 1130 (Fla. Dist. Ct. App. 2008).152Id. at 1132.See alsoFla. Stat. Ann. § 400.022(1) (West 1995) (nursing home residents' rights);?Kush v. Lloyd, 616 So. 2d 415, 417 (Fla. 1992)?(court rejected the tort of wrongful life).153Fla. Stat. Ann. § 400.022(1)(k)(West 2011).154Scheible, 988 So. 2d at 1132 n.1.155Id.156Id. at 1133.157Id.158Allore v. Flower Hospital, 699 N.E.2d 560 (Ohio Ct. App. 1997).159Ohio Rev. Code Ann.§ 2133.01-.16 (West 2011).160Ohio Rev. Code Ann.§§ 1337.11-.17 (West 2011);see also?Anderson v. St. Francis-St. George Hospital, 671 N.E.2d 225 (Ohio1996)(stating Ohio adopted both a version of the Uniform Right of the Terminally Ill Act and expanded the powers of a durable power of attorney for health care).161See?22A Am. Jur. 2dDeath § 552 (2011)?(defining “life-sustaining treatment” as “any medical procedure or intervention that, when administered to a qualified patient, will serve only to prolong the process of dying”).162Ohio Rev. Code Ann.§ 2133.01-.16 (West 2011).163No. C-930819,?1995 WL 109128 (Ohio App. 1 Dist., 1995).164Id. at *1.165Id. at *3.166Id.167Id. at *4.168Anderson v. St. Francis-St. George Hospital, Inc., 671 N.E.2d 225, 226 (Ohio 1996).169Id. at 228-29.170Hoffman & Schwartz,supra note 35, at 31.171See, e.g.,? HYPERLINK "(sc.Search)" \l "co_pp_sp_735_1132" Scheible v. Joseph L. Morse Geriatric Ctr., Inc., 988 So. 2d 1130, 1132 (Fla. Dist. Ct. App. 2008)(using a breach of contract claim);? HYPERLINK "(sc.Search)" \l "co_pp_sp_4637_440" Klavan v. Crozer-Chester Med. Ctr., 60 F. Supp. 2d 436, 440 (E.D. Pa. 1999)(claiming a violation of the patient's constitutional due process rights);? HYPERLINK "(sc.Search)" \l "co_pp_sp_578_1289" Gragg v. Calandra, 696 N.E.2d 1282, 1289-90 (Ind. Ct. App. 1998)?(advancing a claim of intentional infliction of emotional distress).172See discussionsuprapp. 6- 8.173See discussion suprapp. 13- 18.174See id. (suggesting that DNR agreements are ignored sometimes because physicians are worried about future litigation for not resuscitating a patient; this suggests that possible litigation is a motivating force that physicians respond to. Thus, allowing a claim of wrongful life would act as a deterrent for violation of DNR agreements). ................
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