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Legal Problems in Critical Care Units

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Legal Aspects of Medicine

Abstract

Critical care medicine has rapidly developed into a flourishing discipline.1 It has also engendered much scholarship in the legal and medical professions. The intensive care unit and the emergency room also have been the target of many legal sharpshooters.

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References

  1. Bone RC: Critical Care—a Comprehensive Approach, A publication of the American College of Chest Physicians, Park Ridge, Illinois, 1984, 532 pp.

    Google Scholar 

  2. NIH Consensus Conference. Development conference on critical care medicine. Crit Care Med 1983;11:466–469.

    Article  Google Scholar 

  3. Myer AA (guest ed): Critical Care Management of the Trauma Patient. Philadelphia, WB Saunders Co., 1986, pp 673–677.

    Google Scholar 

  4. Bone RC: Critical care medicine: The past and changes in the future. J Am Med Assoc 1984;252:2060–2061.

    Article  Google Scholar 

  5. Miles HS, Cranford R, Schultz A, et al: The do not resuscitate order in a teaching hospital. Ann Intern Med 1982;96:660–664.

    Google Scholar 

  6. Robin ED: A critical look at critical care. The Herbert Shubin Memorial Lecture given at the 20th Annual Symposium of the Critical Care Society, Las Vegas, Nevada. Crit Care Med 1983;11:2.

    Google Scholar 

  7. Robin ED: Iatroepidemics: A probe to examine systematic preventable errors in (chest) medicine. Am Rev Respir Dis 1987;135:1152–1156.

    Google Scholar 

  8. Relman AS: Intensive care units: Who needs them? N Engl J Med 1980;302:965–966.

    Article  Google Scholar 

  9. Butler PW, Bone RC, Field T: Technology under medicare diagnosis-related groups. Implications for intensive care. Chest 1985;87:229–234.

    Article  Google Scholar 

  10. Weinberg SL: DRG dilemmas in intensive care. Financial and medical. Chest 1985;87:141.

    Article  Google Scholar 

  11. Richards EP, Rathbun K: Legal issues in critical care medicine. J Intensive Care Med 1986;1:101–110.

    Article  Google Scholar 

  12. Bone RC: Address to the American College of Chest Physicians, 52nd Annual Assembly, 1986.

    Google Scholar 

  13. Bowen O: What is quality of care? N Engl J Med 1987;316, No. 25:1518–1580.

    Article  Google Scholar 

  14. Robin ED: The cult of the Swan-Ganz catheter. Ann Intern Med 1985;103:445–449.

    Google Scholar 

  15. Robin ED: Medical Care Can Be Dangerous to Your Health: A Guide to Risks and Benefits. New York, Harper and Row, 1986.

    Google Scholar 

  16. Kanaus WA, Draper EA, Zimmerman JE: An evaluation of outcome from intensive care in major medical centers. Ann Intern Med 1986;104:410–418.

    Google Scholar 

  17. Wennberg JE: Dealing with medical practice variations: A proposal for action. Health Affairs 1984;3:7–32.

    Article  Google Scholar 

  18. Luft HS, Banker JP, Enthoven AC: Should operations be regionalized? The empirical relation between surgical volume and mortality. N Engl J Med 1979;301:1364–1369.

    Article  Google Scholar 

  19. Steel K, Gertman PM, Crescenzi: Iatrogenic illness on a general medical service at a university hospital. N Engl J Med 1981;304:638.

    Article  Google Scholar 

  20. Shure D (guest ed): Diagnostic techniques. Clin Chest Med 1987;8(1):1–75.

    Google Scholar 

References

  1. The “instinct” that motivates physicians to protect a patient, despite the latter’s protestations against further treatment or artificial support, has been identified by a commentator as the physician’s paternalistic view of the physician-patient relationship. See Annas and Densberger, “Competence to Refuse Medical Treatment: Autonomy vs. Paternalism,” 15 U. Toledo L. Rev. 561 (1983) (paternalism dictates a limited view of a person’s competence to understand and decide between medical treatment and allowing a disease to take its natural course). Richards and Rathburn also suggest that the current “underlying paradigm of critical care medicine is the technological imperative, “the desire of physicians to do everything that they have been trained to do.” It has been this devotion to high-technology medicine, the authors suggest, that has led to certain other treatment realities, including the obfuscation of the rationale for treatment by the technology, the use of high technology to keep a patient comfortable, as opposed to having any creative benefit, the desire to see on the side of greater, not less treatment, and the inability of a patient to have his wishes known. Most alarming, however, is the use of high technology as a weapon in defensive medicine—see Richards and Rathburn “Legal Issues in Critical Care Medicine,” J Intensive Care Med 1986;1:101–110.

    Google Scholar 

  2. In Re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976), cert, denied sub. nom. Garger v. N.J., 429 v.s. 922 (1976).

    Google Scholar 

  3. Issues as weighty as those under consideration here will always be subject to analysis, review and critique. Public policy makers have already gone to significant lengths to define rights and liabilities of patients and physicians, implementing natural death and living wills legislation in thirty-seven states and the District of Columbia. It is well recognized, though, that many questions are still unanswered. See Greenfield, “Recent Amendments to the Texas Natural Death Act: Implications for Health Care Providers,” 17 St. Mary’s Law Journal 1003, 1005 (1986). For an excellent treatment of the burgeoning case law and statutory enactments, see note, “To Die or Not to Die: The New York Legislature Ponders a Natural Death Act,” 13 Ford. Urb. L.J. 639 (1984–1985).

    Google Scholar 

  4. 211 N.Y. 125, 105 N.E. 92 (1914). While the New York courts have developed the right to withdraw treatment from a common law perspective, the court in In Re Quinlan, 70 N.J. at_, 355 A.2d at 663, has determined that there is a constitutional right of privacy for competent adults to decline medical treatment.

    Google Scholar 

  5. 73 A.D. 2d 431, 426 N.Y.S.2d 517 (2d Dept. 1980), modified sub nom. In Re Storar, 52 N.Y.2d 363, 420 N.E. 2d 64 (1981).

    Google Scholar 

  6. 52 N.Y. 2d 363, 438 N.Y.S.2d 266, cert, denied 454 U.S. 858 (1981).

    Google Scholar 

  7. But cf. Superintendent of Belchertown State School v. Sarkewitz, 373 Mass. 728, 370 N.E. 2d 417 (1977). (substituted judgment permitted); In Re Quinlan, supra n. 2. Additionally, the New York Legislature, in 1987, buffered the impact of Eichner and Storar to a certain extent by adopting a substituted judgment provision relating to DNR orders. See Chapter 818 of the Laws of 1987.

    Google Scholar 

  8. See note 3, supra.

    Google Scholar 

  9. Chapter 818 of the Laws of 1987. The New York law provides civil and criminal liability protections to physicians who obtain the consent of patients to insert DNR orders in their hospital charts. These are specific provisions regarding procedures and the compilation of written requests before an order can be effectuated.

    Google Scholar 

  10. Hospitals, Dec. 20, 1986, p. 72.

    Google Scholar 

  11. Robin, “A Critical Look at Critical Care,” Critical Care Medicine (1983) 11:144–147.

    Article  Google Scholar 

  12. New York Law Journal, Sept. 15, 1987, p. 1.

    Google Scholar 

  13. 398 Mass. 417, 497 N.E. 2d 626 (1986).

    Google Scholar 

  14. Massachusetts recognizes substitute judgment. Supra, n. 7. New York, in contrast, recognizes an individual’s rights when his intent has been explicitly stated. See Eichner, supra, n. 5 and Storar, note 6, supra.

    Google Scholar 

  15. See Spadaccini v. Dolan, 63 A.D. 2d 110 (1st Dept. 1978).

    Google Scholar 

  16. Id.; see also Pattern Jury Instructions.

    Google Scholar 

  17. Pike v. Honsinger, 155 N.Y. (1898); see also Pattern Jury Instructions.

    Google Scholar 

  18. This is not meant to suggest that a physician will escape culpability in those instances where malpractice has been found, but that the patient would have died or suffered an injury in any event. As the court in Jones v. City of New York, 57 A.D. 2d 429, 430 (1st Dept. 1977) indicated, “[t]hat the patient may well have died soon because of his generally debilitated condition cannot exculpate defendant [physician] from responsibility for neglecting caused death at an earlier moment ” It is interesting to note that in Jones, which involved the development of a bilateral pneumothorax, in an individual with acute viral hepatitis and in a hepatic coma, resulting from the insertion of chest tubes found to be thin, soft and inadequate, the damages awarded by a jury were dramatically reduced by the appellate court. A verdict of $450,000 was reduced to $25,000 because, despite the obvious malpractice, there was a question as to how much conscious pain and suffering could actually have been attributed to the malpractice, or how long the decedent would have survived, given the critical condition he was in when the malpractice occurred.

    Google Scholar 

  19. See Warren’s Negligence, Section 13.02 (1978).

    Google Scholar 

  20. Id.

    Google Scholar 

  21. See also Ledogar v. Giordano, 505 NYS2d 899 (2d Dept. 1986); Fileccia v. Massapequa General Hospital, 99 A.D. 2d 796 (2d Dept. 1984)

    Google Scholar 

  22. Fiore v. Galang, 64 N.Y. 2d 999 (1985) (expert proof needed in analyzing allegations of failure to diagnose cancer and properly conduct abdominal surgery).

    Google Scholar 

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Bone, R.C., Vevaina, J.R., Dunne, J.R. (1989). Legal Problems in Critical Care Units. In: Vevaina, J.R., Bone, R.C., Kassoff, E. (eds) Legal Aspects of Medicine. Springer, New York, NY. https://doi.org/10.1007/978-1-4612-4534-6_13

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  • DOI: https://doi.org/10.1007/978-1-4612-4534-6_13

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