Contrasts in American and Jewish Law by Daniel Pollack (Editor)

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Chapter One

Anderson v. St. Francis—St. George Hospital Wrongful Living from an American and a Jewish Legal Perspective

Daniel Pollack
Chaim Steinmetz
Vicki Lens

Edward Winter, an eighty-two-year-old man who suffered from chronic heart disease, entered St. Francis—St. George Hospital in Ohio after he lost consciousness at a senior citizen center. On the same day of his admission, in the presence of his daughter, he communicated to his personal physician that he did not want to be treated with extraordinary life-saving measures in the event of further illness. He had observed his wife's treatment in an intensive care unit, which included having her heart shocked and chest beaten, and he did not want the same thing done to him. His physician placed an order in his chart to provide for "no code blue," indicating Winter's desire not to be resuscitated. However, Winter remained on cardiac monitoring equipment.

    Three days later, Winter suffered a life-threatening irregular heart rhythm. Despite the "no code blue" order, a nurse defibrillated him by electrically shocking his heart with paddles. Winter survived, only to suffer a stroke two days later which left his right side paralyzed. He was then transferred to a nursing home, unable to walk, incontinent, speaking with difficulty, and needing assistance with bathing and dressing. He never regained the capability to care for himself, and he spent much of the rest of his life being cared for at home by nurses and his daughters. Finally he returned to a nursing home, where he died in April of 1990, nearly two years after the unwanted resuscitation.

    While still alive, Winter filed a lawsuit against the hospital for damages resulting from the hospital's failure to obey the "no code blue" order. In addition to relying on the traditional torts of battery and negligence, Winter also alleged a novel cause of action for prolonging a person's life with an unwanted resuscitation, "wrongful living."

    Winter's last year, spent among nurses and medical equipment, remains but one example of the frequent collision between people's legal right to control the manner of their own death and the medical community's increasing ability to forestall death. An individual's right to refuse medical treatment is recognized at common law as the "right to bodily integrity." Since the United States Supreme Court decision in Cruzan v. Director, Missouri Department of Health, this individual right remains grounded in the constitutional right to privacy. The right to refuse treatment has also been codified in law. All the states and the District of Columbia have enacted statutes permitting patients to control the course of their medical treatment during their final days.

    As advances in medical technology have kept people alive longer, the right to refuse life-sustaining treatment has taken on an even more crucial and urgent significance for dying patients and their families. While modern medicine may have learned to save lives, the lives it has saved are often severely diminished and filled with pain and suffering. Although the right to refuse life-saving medical treatment is firmly embedded in our nation's laws, what to do when this right is ignored has not been firmly settled. Medical options at the patient's bedside have turned into vexing legal questions in the courtroom. The courts are increasingly called upon to solve the thorny dilemma of what remedy lies—or who "pays"—when a doctor sustains a patient who has asked to be left to die.

    The Anderson court answered this question by "splitting the difference." It affirmed Winter's right to refuse medical treatment by determining that the medical provider had committed a battery against Winter when he was defibrillated despite a "do not resuscitate" order. However, the court refused to grant any damages because it determined that Winter had not suffered a compensable harm. The court recognized a right, but failed to provide a remedy.

    Part I of this chapter explores the court's legal analysis in Anderson, and whether its failure to find a remedy comports with traditional concepts of tort law and more recent and novel causes of action involving damages for living, including wrongful pregnancy and wrongful life claims. Part II addresses larger philosophical questions by taking a theological and halachic (Jewish law) approach.

I. PART ONE

A. The Application of Traditional Tort Principles to Unwanted Medical Treatment

    The Anderson court determined that the hospital had committed a battery when it resuscitated Winter because he had not consented to the defibrillation. The court determined that Winter suffered no compensable damages because the defibrillation itself did not cause any direct harm, such as broken bones or tissue burns. It also found that the defibrillation, though it prolonged Winter's life, did not cause his subsequent stroke and other medical problems. A contrary determination would, in effect, permit recovery for wrongful living damages, a claim the court refused to recognize under Ohio law.

    The court's failure to find causation, and hence damages, represents a strained and narrow application of the traditional concepts of tort law. The standard test for causation in tort law is the "but for" test, stated by Prosser as follows: "The defendant's conduct is a cause of the event if the event would not have occurred but for that conduct; conversely, the defendant's conduct is not a cause of the event, if the event would have occurred without it." Later events are generally considered proximately caused by an initial act if they are part of a natural unbroken sequence resulting from the act and are reasonably foreseeable. However, not all later events will be considered caused by the original act. Otherwise, there would be no end to a defendant's liability. As stated by Prosser:

In a philosophical sense, the consequences of an act go forward to eternity, and the causes of an event go back to the discovery of America and beyond.... But any attempt to impose responsibility upon such a basis would result in infinite liability for all wrongful acts, and would set society on edge and fill the courts with endless litigation.

    The Anderson court clearly acknowledged that Winter would have died without the defibrillation, and, therefore, that the stroke and other medical problems would not have occurred "but for" the defibrillation. It even acknowledged that the occurrence of a stroke might have been reasonably foreseeable, given Winter's medical problems at the time he was resuscitated. Thus, had the court followed the standard test for causation, it would have established the causal link between the defibrillation and Winter's medical condition. To escape this conclusion, the court invoked the specter of "infinite liability," and drew a quick and narrow line by requiring evidence that the defibrillation had actually caused bodily damage, such as broken bones or tissue, or had been the physical cause of the stroke. To the court, the defibrillation simply prolonged Winter's life, but did not cause any of his subsequent medical problems.

    The court drew such a line because to do otherwise would, in its view, permit recovery for wrongful living, a theory the court rejected. The court stated that "[t]here are some mistakes, indeed even breaches of duty or technical assaults, that people make in this life that affect the lives of others for which there simply should be no monetary compensation." The court confused the tort elements of causation and damages, thus refusing to find causation, because it believed that some errors should not be compensated. What caused Winter's medical condition after the defibrillation and for what damages he should be compensated require separate and distinct analyses, a subject avoided by the court. In effect, the court put the cart before the horse. It did not want to compensate Winter for his prolonged and diminished life after the resuscitation, so it used a restrictive analysis of causation to support its failure to do so.

    By adopting such an unwarranted and narrow view of causation, the court emasculated the use of a traditional tort concept of battery to obtain damages from a health care provider who interferes with a patient's legal right to refuse life-sustaining treatment. Under Anderson, all the pain, suffering, and future medical problems caused when a medical provider ignores a patient's order not to administer life-sustaining treatment are ignored; the patient is left with possible compensation only for the tissue burn or broken bones that may have resulted from the unwanted life-sustaining medical procedure.

B. The Wrongful Living Claim and the Related Torts of Wrongful Pregnancy and Wrongful Life

    The Anderson court quickly dispensed with any notion that the legal system's response to the interference with the right to die should result in a new cause of action for wrongful living. The court viewed a wrongful living cause of action as an attempt to seek damages for the prolongation of life caused by the medical provider's failure to heed the patient's instructions not to be treated. To the court, this was tantamount to putting a price tag on life, an attempt to measure "the relative merits of 'being versus nonbeing'." Since it considered life not to be a compensable harm, the court concluded that there was no cause of action for wrongful living.

    Although wrongful living causes of action are relatively new, an extensive body of case law exists on wrongful pregnancy and wrongful life causes of actions. These causes of action are, in essence, a mirror image of the wrongful living cause of action. They occur at the other end of the life spectrum—birth. However, they share with the wrongful living cause of action the claim that a medical provider has negligently performed an act that resulted in an unwanted or impaired life. A wrongful pregnancy action is brought by parents after a negligent sterilization results in the unplanned birth of their child. A wrongful life claim is brought by the child born impaired after a physician negligently fails to warn the parents of a genetic defect so that they could exercise their right to terminate the pregnancy.

    These causes of action involve the same knotty questions of causation and damages present in a wrongful living claim. Did the act of a physician "cause" a life to occur? If so, how do we value a life for the purposes of determining damages? Should one be compensated for an impaired or defective life? Constitutional rights are also implicated in several of these causes of action. For the wrongful pregnancy, it is the interference with the right to choose when to procreate. For a wrongful living claim, it is the liberty interest in refusing unwanted medical treatment.

    Ohio first recognized a wrongful pregnancy claim in 1976 in the case of Bowman v. Davis, when it permitted a woman to recover damages after the birth of twins following a negligently performed sterilization. In contrast to its later decision in Anderson, the Bowman court was untroubled that the plaintiff was, in effect, seeking damages for a life. Indeed, the court explicitly rejected the argument made by the defendant that public policy prohibited the recovery of damages for the wrongful life of a child, and emphasized that it was not a wrongful life with which they were dealing, but a traditional negligence action. The court affirmed an award of $450,000 in general damages and $12,500 in special damages.

    In 1989, the Ohio Supreme Court affirmed its recognition of a wrongful pregnancy claim in Johnson v. University Hospital of Cleveland. Again, the court had none of the problems it later demonstrated in Anderson, when it applied traditional tort principles of causation to a negligent medical act that resulted in life. Although the court cited the "infinite liability" conundrum, it did not use it to find that the doctor's negligent sterilization "caused" the birth of a child. To the contrary, the court found that there "certainly ... was a duty and a breach of that duty which was the proximate cause of damage."

    It is difficult to reconcile the Johnson court's analysis of causation with its subsequent analysis of causation in Anderson. If a doctor's negligent sterilization can be considered, for tort purposes, the cause of a life, then certainly an unwanted resuscitation can be considered the cause of a prolonged and impaired life. Indeed, one can make a stronger argument for cutting the chain of causation at birth, in contrast to stopping it at prolonging the life of a person who has made an informed and highly personal decision to control the manner of his death.

    The Johnson court's analysis of the appropriate damages in a wrongful pregnancy claim also differs markedly from its treatment of the damage issue in Anderson. The Johnson court acknowledged the vexing question of whether life can be considered a compensable injury. It declined to apply the "strict rules of tort ... to an action to which they are not suited." However, it rejected a rule that would prohibit any recovery for damages in wrongful pregnancy cases as being "clearly in conflict with the traditional concepts of tort law." Instead, it adopted a limited damages rule and refused to award the costs of child-rearing because "the birth of a normal, healthy child cannot be an injury to her parents." The court permitted the plaintiff to recover damages related to the pregnancy itself, including the medical expenses of pregnancy and birth and any emotional distress, pain, and suffering during the pregnancy and birth. This approach is consistent with the vast majority of jurisdictions which have adopted a limited damages rule that prohibits recovery of child-rearing expenses while permitting at least some recovery for other types of damages.

    This approach parallels one used by several courts in a wrongful life cause of action where negligent genetic counseling or similar error results in the birth of an impaired child. A child born with an impairment also raises the dilemma of comparing being to non-being, but with the added twist of contrasting existence in an impaired state with no existence at all. When California first recognized a wrongful life tort in Curlender v. Bio-Science Lab., it permitted a child born with Tay-Sachs disease to recover general damages, including damages for the pain and suffering and any financial losses resulting from the impaired condition. The court found that "neither the difficulty of measuring damages nor the sanctity of life was a bar to recovery." The court emphasized that the child was not being compensated for being born, but for the impairment.

    This holding was limited by the California Supreme Court in Turpin v. Sortini, when the court refused to award general damages to a child born deaf because a medical care provider had negligently failed to advise the child's parent before conception of the possibility of this hereditary condition. The court declined to award general damages because such an award would require weighing the value of not being born against the value of being born deaf. However, the court permitted the recovery of the extraordinary expenses required to treat the deaf child. Other courts that have considered the issue have also been hesitant to award general damages, limiting awards to extraordinary damages associated with raising an impaired child.

    Thus, in wrongful pregnancy and wrongful life causes of action, courts have fashioned remedies that avoid placing a value on life and instead focus on the extraordinary expenses incurred after a negligent act by a medical provider. In many cases, this means payment of medical or extraordinary expenses related to the pregnancy or the impairment, or even the costs of raising an impaired child. While damages for pain and suffering or emotional distress are generally denied because they devalue life, even these types of damages may be appropriate in certain circumstances.

    Wrongful living claims lend themselves to the same analysis. At the very least, a plaintiff should be able to recover any medical expenses incurred after the unwanted medical treatment. Such an award is straightforward, easy to calculate, and does not require weighing the value of a life. Damages for pain and suffering are more problematic. Regardless, they should also be recoverable, not for the prolongation of life, but based on the extent to which the person's life has been diminished and impaired. The concept of placing a value on an impairment is well grounded in law. It is routinely made in tort cases when, for example, the loss of an arm is assigned a value, as is the plaintiff's pain and suffering for losing the arm.

    The Anderson decision represents a setback to those who would use the courts as a remedy when doctors fail to heed a patient's decision to forgo life-saving medical procedures. Not only did the court explicitly reject a wrongful living cause of action, it also made it more difficult to use the traditional tort of battery against a physician who treats a dying patient without consent.

    Negligent or other tortious conduct by medical professionals, whether it occurs at the inception or the end of life, requires a deterrent. Other courts have found a way to award at least some damages for wrongful pregnancy or wrongful life claims, even though these claims also raise the problem of how to value a life. The result in Anderson affords doctors who ignore "do not resuscitate" orders more immunity from liability than doctors who perform negligent sterilization procedures or faulty genetic testing or counseling.

    A patient's right to make end-of-life decisions, including the right to refuse life-saving medical treatment, has been recognized by every state and is protected by the Constitution. This right will be rendered meaningless if the courts fail to provide a remedy for its violation.

II. PART TWO

    To properly comment on this case, we must ascertain the attitude of Jewish law (halacha) toward euthanasia and informed consent, and determine whether there is any way to assess damages for wrongful living. Because the attitude of halacha toward euthanasia has already been discussed at great length, this section emphasizes theological issues relating to the ownership of human life, and the value of a life of suffering.

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Excerpted from Contrasts in American and Jewish Law by . Copyright © 2001 by Yeshiva University Press. Excerpted by permission. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.

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