Law & Medicine

Question: A three-person hospitalist team contracts with a local hospital to provide in-house coverage for all medical admissions. Dr. A, who admitted a febrile female patient 3 days earlier, failed to check her urine culture and sensitivity. Dr. B was on duty the night the patient developed septic shock. He promptly transferred her to the ICU, drew blood cultures, and started her on a third-generation cephalosporin. He failed to check on the sensitivity results for the next 2 days, and did not prioritize this item when signing off to Dr. C, who then assumed care for the patient. The patient died shortly thereafter, and her blood cultures grew out MRSA, resistant to the cephalosporin. In a lawsuit alleging negligence, which of the following is best?

A. Dr. A is liable, as his failure to check on the urine specimen in the first place was the proximate cause of the patient’s eventual demise.

B. Dr. B is liable, as he should have checked on or alerted Dr. C to the blood cultures.

C. Dr. C has an independent duty to review the lab studies. But for this failure, the patient would not have succumbed to the infection, so Dr. C is liable.

D. All three hospitalists are jointly and severally liable.

E. If an autopsy showed death resulted from an unsuspected myocardial infarct, then there will be no liability.

Answer: D. Liability will likely attach to all three hospitalists, as the conduct of each arguably fell below the standard of care. Choice E is incorrect as there may still be liability for missing an MI, and the plaintiff will likely argue that the inadequately treated infection precipitated or aggravated the cardiac complication. This hypothetical is meant to underscore the critical need for various caregivers in a hospital setting to fully communicate.

The hospitalist movement began about 2 decades ago amidst rumblings that it would represent a "dangerous" trend, with disruption of the doctor-patient relationship when the patient needs his/her regular doctor most. Notwithstanding these early reservations, the specialty has now become widely accepted, and its membership has tripled in the last decade to reach almost 35,000. Hospitalists increase the work efficiency of primary care physicians, who can now devote all their attention to the office or clinic, free of the time-consuming interruptions of attending to an acutely ill patient in the hospital.

Hospitalists also have been shown to reduce the hospital length of stay by about half a day, although there was no significant cost savings (N. Engl. J. Med. 2007;357:2589-2600).

Large-scale studies on the quality of hospitalist care are still pending, but smaller studies demonstrate that it has improved patient outcomes.

The two most important challenges facing hospitalists are to form a meaningful doctor-patient relationship in an acute situation and to ensure good communication. The first challenge makes it easier for a patient to sue (a "stranger" doctor), and the second creates liability traps as medical errors tend to occur when communication among providers and others are suboptimal.

The scope of a hospitalist’s duty should therefore be carefully spelled out in advance, and include where each physician’s duty begins and ends. There must be no doubt from the outset as to who is responsible for what. The coordination and communication between the emergency department and the hospitalist is a key area. A hospitalist is generally responsible for directly supervising and coordinating a patient’s care, and may not be expected to function at the level of another specialist. For example, in Domby v Moritz, D050165 (Cal 2008), a hospitalist was not found liable in the death of a cardiac patient, the court holding that he had a narrower scope of duty than the standard of care expected of the cardiologist who was comanaging the case. However, depending on the facts, not all such cases will necessarily be decided in the hospitalist’s favor.

The overarching risk management strategy is clear and effective communication at all levels, especially during the handoff from one caregiver to another. A missed or delayed diagnosis remains the main malpractice allegation, but handoff communication problems are among the most common root causes of hospital errors, and can extend beyond hospital care.

In one study, more than a third of follow-up evaluations were not completed because the discharge summary was incomplete or unavailable. In another study of 696 discharged patients from two academic centers, only 25% of the discharge summaries mentioned any pending test results, and a mere 13% listed the nature of those tests (J. Gen. Intern. Med. 2009;24:1002-6).

The duty of the hospitalist does not end when a patient leaves the hospital, and all patients should be specifically advised regarding the importance of follow-up appointments with their primary care physicians. Inadequate communication with the primary care doctor regarding the patient’s hospital course and follow-up plans can create liability for the hospitalist should something go wrong post discharge.

Malpractice carriers and others have developed various mnemonics to assist the hospitalist. A handy one is the five P’s for Patient, Plan, Purpose, Problems, and Precautions. Another more elaborate mnemonic is PASS the BATON, which stands for Patient (identification), Assessment (e.g., complaints, diagnosis), Situation (e.g., response to treatment, code status), Safety (e.g., lab results, falls), Background (e.g., relevant past history), Actions (what’s done and what’s needed), Timing (urgency and priority), Ownership (who is responsible) and Next (plans to come).

This column, Law & Medicine, appears regularly in Internal Medicine News. Dr. Tan is emeritus professor at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: A three-person hospitalist team contracts with a local hospital to provide in-house coverage for all medical admissions. Dr. A, who admitted a febrile female patient 3 days earlier, failed to check her urine culture and sensitivity. Dr. B was on duty the night the patient developed septic shock. He promptly transferred her to the ICU, drew blood cultures, and started her on a third-generation cephalosporin. He failed to check on the sensitivity results for the next 2 days, and did not prioritize this item when signing off to Dr. C, who then assumed care for the patient. The patient died shortly thereafter, and her blood cultures grew out MRSA, resistant to the cephalosporin. In a lawsuit alleging negligence, which of the following is best?

A. Dr. A is liable, as his failure to check on the urine specimen in the first place was the proximate cause of the patient’s eventual demise.

B. Dr. B is liable, as he should have checked on or alerted Dr. C to the blood cultures.

C. Dr. C has an independent duty to review the lab studies. But for this failure, the patient would not have succumbed to the infection, so Dr. C is liable.

D. All three hospitalists are jointly and severally liable.

E. If an autopsy showed death resulted from an unsuspected myocardial infarct, then there will be no liability.

Answer: D. Liability will likely attach to all three hospitalists, as the conduct of each arguably fell below the standard of care. Choice E is incorrect as there may still be liability for missing an MI, and the plaintiff will likely argue that the inadequately treated infection precipitated or aggravated the cardiac complication. This hypothetical is meant to underscore the critical need for various caregivers in a hospital setting to fully communicate.

The hospitalist movement began about 2 decades ago amidst rumblings that it would represent a "dangerous" trend, with disruption of the doctor-patient relationship when the patient needs his/her regular doctor most. Notwithstanding these early reservations, the specialty has now become widely accepted, and its membership has tripled in the last decade to reach almost 35,000. Hospitalists increase the work efficiency of primary care physicians, who can now devote all their attention to the office or clinic, free of the time-consuming interruptions of attending to an acutely ill patient in the hospital.

Hospitalists also have been shown to reduce the hospital length of stay by about half a day, although there was no significant cost savings (N. Engl. J. Med. 2007;357:2589-2600).

Large-scale studies on the quality of hospitalist care are still pending, but smaller studies demonstrate that it has improved patient outcomes.

The two most important challenges facing hospitalists are to form a meaningful doctor-patient relationship in an acute situation and to ensure good communication. The first challenge makes it easier for a patient to sue (a "stranger" doctor), and the second creates liability traps as medical errors tend to occur when communication among providers and others are suboptimal.

The scope of a hospitalist’s duty should therefore be carefully spelled out in advance, and include where each physician’s duty begins and ends. There must be no doubt from the outset as to who is responsible for what. The coordination and communication between the emergency department and the hospitalist is a key area. A hospitalist is generally responsible for directly supervising and coordinating a patient’s care, and may not be expected to function at the level of another specialist. For example, in Domby v Moritz, D050165 (Cal 2008), a hospitalist was not found liable in the death of a cardiac patient, the court holding that he had a narrower scope of duty than the standard of care expected of the cardiologist who was comanaging the case. However, depending on the facts, not all such cases will necessarily be decided in the hospitalist’s favor.

The overarching risk management strategy is clear and effective communication at all levels, especially during the handoff from one caregiver to another. A missed or delayed diagnosis remains the main malpractice allegation, but handoff communication problems are among the most common root causes of hospital errors, and can extend beyond hospital care.

In one study, more than a third of follow-up evaluations were not completed because the discharge summary was incomplete or unavailable. In another study of 696 discharged patients from two academic centers, only 25% of the discharge summaries mentioned any pending test results, and a mere 13% listed the nature of those tests (J. Gen. Intern. Med. 2009;24:1002-6).

The duty of the hospitalist does not end when a patient leaves the hospital, and all patients should be specifically advised regarding the importance of follow-up appointments with their primary care physicians. Inadequate communication with the primary care doctor regarding the patient’s hospital course and follow-up plans can create liability for the hospitalist should something go wrong post discharge.

Malpractice carriers and others have developed various mnemonics to assist the hospitalist. A handy one is the five P’s for Patient, Plan, Purpose, Problems, and Precautions. Another more elaborate mnemonic is PASS the BATON, which stands for Patient (identification), Assessment (e.g., complaints, diagnosis), Situation (e.g., response to treatment, code status), Safety (e.g., lab results, falls), Background (e.g., relevant past history), Actions (what’s done and what’s needed), Timing (urgency and priority), Ownership (who is responsible) and Next (plans to come).

This column, Law & Medicine, appears regularly in Internal Medicine News. Dr. Tan is emeritus professor at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: A three-person hospitalist team contracts with a local hospital to provide in-house coverage for all medical admissions. Dr. A, who admitted a febrile female patient 3 days earlier, failed to check her urine culture and sensitivity. Dr. B was on duty the night the patient developed septic shock. He promptly transferred her to the ICU, drew blood cultures, and started her on a third-generation cephalosporin. He failed to check on the sensitivity results for the next 2 days, and did not prioritize this item when signing off to Dr. C, who then assumed care for the patient. The patient died shortly thereafter, and her blood cultures grew out MRSA, resistant to the cephalosporin. In a lawsuit alleging negligence, which of the following is best?

A. Dr. A is liable, as his failure to check on the urine specimen in the first place was the proximate cause of the patient’s eventual demise.

B. Dr. B is liable, as he should have checked on or alerted Dr. C to the blood cultures.

C. Dr. C has an independent duty to review the lab studies. But for this failure, the patient would not have succumbed to the infection, so Dr. C is liable.

D. All three hospitalists are jointly and severally liable.

E. If an autopsy showed death resulted from an unsuspected myocardial infarct, then there will be no liability.

Answer: D. Liability will likely attach to all three hospitalists, as the conduct of each arguably fell below the standard of care. Choice E is incorrect as there may still be liability for missing an MI, and the plaintiff will likely argue that the inadequately treated infection precipitated or aggravated the cardiac complication. This hypothetical is meant to underscore the critical need for various caregivers in a hospital setting to fully communicate.

The hospitalist movement began about 2 decades ago amidst rumblings that it would represent a "dangerous" trend, with disruption of the doctor-patient relationship when the patient needs his/her regular doctor most. Notwithstanding these early reservations, the specialty has now become widely accepted, and its membership has tripled in the last decade to reach almost 35,000. Hospitalists increase the work efficiency of primary care physicians, who can now devote all their attention to the office or clinic, free of the time-consuming interruptions of attending to an acutely ill patient in the hospital.

Hospitalists also have been shown to reduce the hospital length of stay by about half a day, although there was no significant cost savings (N. Engl. J. Med. 2007;357:2589-2600).

Large-scale studies on the quality of hospitalist care are still pending, but smaller studies demonstrate that it has improved patient outcomes.

The two most important challenges facing hospitalists are to form a meaningful doctor-patient relationship in an acute situation and to ensure good communication. The first challenge makes it easier for a patient to sue (a "stranger" doctor), and the second creates liability traps as medical errors tend to occur when communication among providers and others are suboptimal.

The scope of a hospitalist’s duty should therefore be carefully spelled out in advance, and include where each physician’s duty begins and ends. There must be no doubt from the outset as to who is responsible for what. The coordination and communication between the emergency department and the hospitalist is a key area. A hospitalist is generally responsible for directly supervising and coordinating a patient’s care, and may not be expected to function at the level of another specialist. For example, in Domby v Moritz, D050165 (Cal 2008), a hospitalist was not found liable in the death of a cardiac patient, the court holding that he had a narrower scope of duty than the standard of care expected of the cardiologist who was comanaging the case. However, depending on the facts, not all such cases will necessarily be decided in the hospitalist’s favor.

The overarching risk management strategy is clear and effective communication at all levels, especially during the handoff from one caregiver to another. A missed or delayed diagnosis remains the main malpractice allegation, but handoff communication problems are among the most common root causes of hospital errors, and can extend beyond hospital care.

In one study, more than a third of follow-up evaluations were not completed because the discharge summary was incomplete or unavailable. In another study of 696 discharged patients from two academic centers, only 25% of the discharge summaries mentioned any pending test results, and a mere 13% listed the nature of those tests (J. Gen. Intern. Med. 2009;24:1002-6).

The duty of the hospitalist does not end when a patient leaves the hospital, and all patients should be specifically advised regarding the importance of follow-up appointments with their primary care physicians. Inadequate communication with the primary care doctor regarding the patient’s hospital course and follow-up plans can create liability for the hospitalist should something go wrong post discharge.

Malpractice carriers and others have developed various mnemonics to assist the hospitalist. A handy one is the five P’s for Patient, Plan, Purpose, Problems, and Precautions. Another more elaborate mnemonic is PASS the BATON, which stands for Patient (identification), Assessment (e.g., complaints, diagnosis), Situation (e.g., response to treatment, code status), Safety (e.g., lab results, falls), Background (e.g., relevant past history), Actions (what’s done and what’s needed), Timing (urgency and priority), Ownership (who is responsible) and Next (plans to come).

This column, Law & Medicine, appears regularly in Internal Medicine News. Dr. Tan is emeritus professor at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: Six days after he bruised his chest and fractured his ankle as a result of an auto accident, the victim, who had a history of diabetes and coronary artery disease, died from an acute myocardial infarction. The medical expert testified that the accident caused him to develop the AMI because of preexisting risk factors, although an otherwise normal person would not. Which of the following statements is best?

A. A tortfeasor is never liable for damages that are too remote and not foreseeable.

B. The accident did not proximately cause the infarct, so the wrongdoer is liable only for the chest wall and ankle injuries.

C. Under the "eggshell skull" rule, the tortfeasor takes his victim as he finds him, and the defendant here is therefore liable for all injuries, including the AMI.

D. The defendant can legitimately claim no prior knowledge of victim’s preexisting conditions, and therefore cannot foresee an AMI complication.

E. A normal person would not have sustained an AMI under the circumstances, and the law demands only what is reasonable.

Answer: C. In order to be compensated, a plaintiff generally has to satisfy the court that the damage was not too remote. Reasonable foreseeability of the type of harm – not necessarily its extent – is the key inquiry when the remoteness of damage is assessed, and public policy considerations centering on fairness may also come into play.

It has been stated that "starting with the proposition that a negligent person should be liable, within reason, for the consequences of his conduct, the extent of his liability is to be found by asking the one question: Is the consequence fairly to be regarded as within the risk created by the negligence? If so, the negligent person is liable for it, but otherwise not" (Roe v. Minister of Health [1954] 2 Q.B. 66 at 85).

This hypothetical case, adapted from an actual Iowa supreme court decision (Benn v. Thomas 512 N.W.2d 537 [Iowa 1994]), features the legal maxim called the "eggshell skull" rule. This principle of law carves out an exception to the need to inquire into whether any damage is too remote. The "eggshell skull" rule famously stipulates that the tortfeasor takes his victim as he finds him, which means in practical terms that the defendant remains liable for all injuries that he caused in a susceptible plaintiff who had preexisting vulnerabilities.

The doctrine originated in the 1901 English case of Dulieu v. White (2 K.B. 669 [1901]), in which the thin-skulled plaintiff died from a minor accident, whereas a person with a skull of normal thickness would have suffered only a bump on the head. The defendant was found liable for the patient’s death.

In an earlier landmark case, (Vosburg v. Putney, 50 N.W. 403 [Wisc. 1891]), a schoolboy developed an invasive infection of his leg after he was kicked by a fellow classmate. Unbeknown to the perpetrator, the victim had recently been injured on that same leg; the injury was aggravated by the tortious act and the leg had to be amputated. The court held that the tortfeasor was liable for the entire damage, notwithstanding the fact that he was unaware of the victim’s prior leg condition or that he had not intended that degree of harm.

In Smith v. Leech Brain & Co Ltd. ([1962] 2 Q.B. 405), an employee developed lip cancer and eventually died after a piece of molten metal caused a burn to the lip. The affected area was apparently in a precancerous condition. The court held that "the test is not whether these [defendants] could reasonably have foreseen that a burn would cause cancer and that [Mr. Smith] would die. The question is whether these [defendants] could reasonably foresee the type of injury he suffered, namely, the burn. What, in the particular case, is the amount of the damage which he suffers as a result of that burn, depends upon the characteristics and constitution of the victim."

In Stoleson v. United States (708 F.2d 1217 [7th Cir. 1983]), the plaintiff suffered a heart attack that was attributed to nitroglycerin exposure at the munitions plant where she worked. As the employer, the federal government was found liable for failing to protect its workers from such exposure. However, the claimant subsequently developed symptoms that included chest pain, dizziness, shortness of breath, coughing, and vomiting, together with a massive weight gain of more than 100 pounds. The symptoms were diagnosed as hypochondriasis, and became manifest only several years after the original incident, long after she had left the workplace. The court held that if her psychosomatic condition preexisted the heart attack, then the "eggshell skull" rule was applicable, but the plaintiff lost the claim as she had failed to prove causation (that is, that nitroglycerin exposure caused her physical symptoms so many years later).

Issues of remoteness of damage will unlikely feature in medical negligence, as virtually all physical and mental injuries including death are foreseeable in the setting of medical treatment, especially in patients with underlying vulnerabilities. Take as an example a diabetic with peripheral neuropathy and poor circulation. A negligently treated minor foot ulcer may cause the patient to end up with an amputation, whereas such a serious outcome would be unlikely in a nondiabetic. Under the "eggshell skull" rule, the negligent doctor will be liable for all injuries, including the amputation, although not for the preexisting diabetic condition itself.

The "eggshell skull" rule should be distinguished from the "crumbling skull" rule. The latter basically stipulates that compensation must discount the damage that can reasonably be expected to flow normally from any preexisting conditions even in the absence of tortious aggravation.

Dr. Tan is emeritus professor of medicine at the University of Hawaii and director of the St. Francis International Center for Healthcare Ethics. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: Six days after he bruised his chest and fractured his ankle as a result of an auto accident, the victim, who had a history of diabetes and coronary artery disease, died from an acute myocardial infarction. The medical expert testified that the accident caused him to develop the AMI because of preexisting risk factors, although an otherwise normal person would not. Which of the following statements is best?

A. A tortfeasor is never liable for damages that are too remote and not foreseeable.

B. The accident did not proximately cause the infarct, so the wrongdoer is liable only for the chest wall and ankle injuries.

C. Under the "eggshell skull" rule, the tortfeasor takes his victim as he finds him, and the defendant here is therefore liable for all injuries, including the AMI.

D. The defendant can legitimately claim no prior knowledge of victim’s preexisting conditions, and therefore cannot foresee an AMI complication.

E. A normal person would not have sustained an AMI under the circumstances, and the law demands only what is reasonable.

Answer: C. In order to be compensated, a plaintiff generally has to satisfy the court that the damage was not too remote. Reasonable foreseeability of the type of harm – not necessarily its extent – is the key inquiry when the remoteness of damage is assessed, and public policy considerations centering on fairness may also come into play.

It has been stated that "starting with the proposition that a negligent person should be liable, within reason, for the consequences of his conduct, the extent of his liability is to be found by asking the one question: Is the consequence fairly to be regarded as within the risk created by the negligence? If so, the negligent person is liable for it, but otherwise not" (Roe v. Minister of Health [1954] 2 Q.B. 66 at 85).

This hypothetical case, adapted from an actual Iowa supreme court decision (Benn v. Thomas 512 N.W.2d 537 [Iowa 1994]), features the legal maxim called the "eggshell skull" rule. This principle of law carves out an exception to the need to inquire into whether any damage is too remote. The "eggshell skull" rule famously stipulates that the tortfeasor takes his victim as he finds him, which means in practical terms that the defendant remains liable for all injuries that he caused in a susceptible plaintiff who had preexisting vulnerabilities.

The doctrine originated in the 1901 English case of Dulieu v. White (2 K.B. 669 [1901]), in which the thin-skulled plaintiff died from a minor accident, whereas a person with a skull of normal thickness would have suffered only a bump on the head. The defendant was found liable for the patient’s death.

In an earlier landmark case, (Vosburg v. Putney, 50 N.W. 403 [Wisc. 1891]), a schoolboy developed an invasive infection of his leg after he was kicked by a fellow classmate. Unbeknown to the perpetrator, the victim had recently been injured on that same leg; the injury was aggravated by the tortious act and the leg had to be amputated. The court held that the tortfeasor was liable for the entire damage, notwithstanding the fact that he was unaware of the victim’s prior leg condition or that he had not intended that degree of harm.

In Smith v. Leech Brain & Co Ltd. ([1962] 2 Q.B. 405), an employee developed lip cancer and eventually died after a piece of molten metal caused a burn to the lip. The affected area was apparently in a precancerous condition. The court held that "the test is not whether these [defendants] could reasonably have foreseen that a burn would cause cancer and that [Mr. Smith] would die. The question is whether these [defendants] could reasonably foresee the type of injury he suffered, namely, the burn. What, in the particular case, is the amount of the damage which he suffers as a result of that burn, depends upon the characteristics and constitution of the victim."

In Stoleson v. United States (708 F.2d 1217 [7th Cir. 1983]), the plaintiff suffered a heart attack that was attributed to nitroglycerin exposure at the munitions plant where she worked. As the employer, the federal government was found liable for failing to protect its workers from such exposure. However, the claimant subsequently developed symptoms that included chest pain, dizziness, shortness of breath, coughing, and vomiting, together with a massive weight gain of more than 100 pounds. The symptoms were diagnosed as hypochondriasis, and became manifest only several years after the original incident, long after she had left the workplace. The court held that if her psychosomatic condition preexisted the heart attack, then the "eggshell skull" rule was applicable, but the plaintiff lost the claim as she had failed to prove causation (that is, that nitroglycerin exposure caused her physical symptoms so many years later).

Issues of remoteness of damage will unlikely feature in medical negligence, as virtually all physical and mental injuries including death are foreseeable in the setting of medical treatment, especially in patients with underlying vulnerabilities. Take as an example a diabetic with peripheral neuropathy and poor circulation. A negligently treated minor foot ulcer may cause the patient to end up with an amputation, whereas such a serious outcome would be unlikely in a nondiabetic. Under the "eggshell skull" rule, the negligent doctor will be liable for all injuries, including the amputation, although not for the preexisting diabetic condition itself.

The "eggshell skull" rule should be distinguished from the "crumbling skull" rule. The latter basically stipulates that compensation must discount the damage that can reasonably be expected to flow normally from any preexisting conditions even in the absence of tortious aggravation.

Dr. Tan is emeritus professor of medicine at the University of Hawaii and director of the St. Francis International Center for Healthcare Ethics. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: Six days after he bruised his chest and fractured his ankle as a result of an auto accident, the victim, who had a history of diabetes and coronary artery disease, died from an acute myocardial infarction. The medical expert testified that the accident caused him to develop the AMI because of preexisting risk factors, although an otherwise normal person would not. Which of the following statements is best?

A. A tortfeasor is never liable for damages that are too remote and not foreseeable.

B. The accident did not proximately cause the infarct, so the wrongdoer is liable only for the chest wall and ankle injuries.

C. Under the "eggshell skull" rule, the tortfeasor takes his victim as he finds him, and the defendant here is therefore liable for all injuries, including the AMI.

D. The defendant can legitimately claim no prior knowledge of victim’s preexisting conditions, and therefore cannot foresee an AMI complication.

E. A normal person would not have sustained an AMI under the circumstances, and the law demands only what is reasonable.

Answer: C. In order to be compensated, a plaintiff generally has to satisfy the court that the damage was not too remote. Reasonable foreseeability of the type of harm – not necessarily its extent – is the key inquiry when the remoteness of damage is assessed, and public policy considerations centering on fairness may also come into play.

It has been stated that "starting with the proposition that a negligent person should be liable, within reason, for the consequences of his conduct, the extent of his liability is to be found by asking the one question: Is the consequence fairly to be regarded as within the risk created by the negligence? If so, the negligent person is liable for it, but otherwise not" (Roe v. Minister of Health [1954] 2 Q.B. 66 at 85).

This hypothetical case, adapted from an actual Iowa supreme court decision (Benn v. Thomas 512 N.W.2d 537 [Iowa 1994]), features the legal maxim called the "eggshell skull" rule. This principle of law carves out an exception to the need to inquire into whether any damage is too remote. The "eggshell skull" rule famously stipulates that the tortfeasor takes his victim as he finds him, which means in practical terms that the defendant remains liable for all injuries that he caused in a susceptible plaintiff who had preexisting vulnerabilities.

The doctrine originated in the 1901 English case of Dulieu v. White (2 K.B. 669 [1901]), in which the thin-skulled plaintiff died from a minor accident, whereas a person with a skull of normal thickness would have suffered only a bump on the head. The defendant was found liable for the patient’s death.

In an earlier landmark case, (Vosburg v. Putney, 50 N.W. 403 [Wisc. 1891]), a schoolboy developed an invasive infection of his leg after he was kicked by a fellow classmate. Unbeknown to the perpetrator, the victim had recently been injured on that same leg; the injury was aggravated by the tortious act and the leg had to be amputated. The court held that the tortfeasor was liable for the entire damage, notwithstanding the fact that he was unaware of the victim’s prior leg condition or that he had not intended that degree of harm.

In Smith v. Leech Brain & Co Ltd. ([1962] 2 Q.B. 405), an employee developed lip cancer and eventually died after a piece of molten metal caused a burn to the lip. The affected area was apparently in a precancerous condition. The court held that "the test is not whether these [defendants] could reasonably have foreseen that a burn would cause cancer and that [Mr. Smith] would die. The question is whether these [defendants] could reasonably foresee the type of injury he suffered, namely, the burn. What, in the particular case, is the amount of the damage which he suffers as a result of that burn, depends upon the characteristics and constitution of the victim."

In Stoleson v. United States (708 F.2d 1217 [7th Cir. 1983]), the plaintiff suffered a heart attack that was attributed to nitroglycerin exposure at the munitions plant where she worked. As the employer, the federal government was found liable for failing to protect its workers from such exposure. However, the claimant subsequently developed symptoms that included chest pain, dizziness, shortness of breath, coughing, and vomiting, together with a massive weight gain of more than 100 pounds. The symptoms were diagnosed as hypochondriasis, and became manifest only several years after the original incident, long after she had left the workplace. The court held that if her psychosomatic condition preexisted the heart attack, then the "eggshell skull" rule was applicable, but the plaintiff lost the claim as she had failed to prove causation (that is, that nitroglycerin exposure caused her physical symptoms so many years later).

Issues of remoteness of damage will unlikely feature in medical negligence, as virtually all physical and mental injuries including death are foreseeable in the setting of medical treatment, especially in patients with underlying vulnerabilities. Take as an example a diabetic with peripheral neuropathy and poor circulation. A negligently treated minor foot ulcer may cause the patient to end up with an amputation, whereas such a serious outcome would be unlikely in a nondiabetic. Under the "eggshell skull" rule, the negligent doctor will be liable for all injuries, including the amputation, although not for the preexisting diabetic condition itself.

The "eggshell skull" rule should be distinguished from the "crumbling skull" rule. The latter basically stipulates that compensation must discount the damage that can reasonably be expected to flow normally from any preexisting conditions even in the absence of tortious aggravation.

Dr. Tan is emeritus professor of medicine at the University of Hawaii and director of the St. Francis International Center for Healthcare Ethics. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: A patient in his 30s presented to Dr. C with atypical substernal chest pain. There was no family history of heart disease, he had no cardiac risk factors, and the examination was normal. Although the clinical picture was not that of myocardial ischemia, Dr. C obtained an EKG and serum creatine phosphokinase (CPK) and troponin levels, all of which were normal. In recent years, Dr. C, a cardiologist, has given up doing invasive procedures to reduce malpractice exposure. Which of the following is best?

A. The work-up of chest pain in this patient can be considered defensive medicine if it’s done primarily out of malpractice fear.

B. Questionnaire surveys generally conclude that virtually all doctors practice defensive medicine.

C. Giving up "high-risk" procedures purely for medicolegal reasons (malpractice concerns) is a form of defensive medicine.

D. There is controversy over what constitutes defensive medicine, how much it costs, and whether it is in fact widely practiced.

E. All are correct.

Answer: E. Almost all doctors admit they practice defensive medicine, which has been defined as "deviation from sound medical practice that is induced primarily by a threat of liability" (JAMA 2005;293:2609-17). Positive defensive medicine, centering on assurance behavior, provides additional services that are of no medical value. An example is obtaining a head CT in all cases of headaches. Negative defensive medicine speaks to avoidance behavior, with the doctor foregoing interventions that he or she perceives as increased malpractice risk, such as performing invasive procedures.

A 2003 survey of specialists in Pennsylvania found that 93% practiced defensive medicine. Assurance behavior – such as ordering tests, performing diagnostic procedures, and referring patients for consultation – was very common (92%). A particularly widespread defensive act was the use of imaging technology in clinically unnecessary circumstances. Avoidance of litigation-prone procedures and patients was also widespread. Forty-two percent of respondents reported that they had taken steps to restrict their practice in the previous 3 years including avoiding trauma surgery as well as patients with complex medical problems or who were perceived as litigious.

In a 2005 study, emergency physicians in the upper tertile of malpractice fear were found to use more diagnostic tests and were more likely to hospitalize patients at low risk for coronary artery disease (Ann. Emerg. Med. 2005;46:525-33).

Defensive medicine also was found to be widespread (83%) among 900 doctors in a survey recently conducted by the Massachusetts Medical Society.

It is widely believed that defensive medicine adds to the nation’s medical bill. By correlating professional liability insurance with cost of services, the AMA estimated that in the 1980s, defensive medicine cost $12.1-$13.7 billion each year (JAMA 1987;257:2776-81).

In an oft-cited study by Kessler and McClellan (Q. J. Econ. 1996;111:353-90), the authors measured the effects of malpractice liability reforms using data on elderly Medicare beneficiaries treated for serious heart disease and found that reforms that directly reduced provider liability pressure led to reductions of 5%-9% in medical expenditures. If such Medicare savings, which amounted to $600 million per year for cardiac disease, were extrapolated across the health care system, the total annual savings would amount to $50 billion. A more conservative study estimated that system-wide savings from aggressive malpractice reform would approach $41 billion over 5 years (J. Am. Health Policy 1994;4:7-15).

Skeptics, however, question the way the profession defines defensive medicine, pointing out that malpractice concerns may be one, but not the only or even the primary reason as most interventions add some marginal value to patient care. Besides, physicians in low litigious jurisdictions display similar behavior, for example, in Japan, where 98% of 131 gastroenterologists in Hiroshima admitted to the practice although only three (2%) respondents had been sued and most respondents (96%) had liability insurance (World J. Gastro. 2006;12:7671-5).

Above all, skeptics argue that there is no acceptable method for measuring the extent and use of defensive medicine, and survey reports are apt to be misleading because of bias and the lack of controls and baseline data.

Several reports challenge the belief that the practice of defensive medicine is widespread and therefore adds hugely to health care costs (J. Health Polit. Policy Law 1996;21:267-88).

The Klingman study used simulated clinical scenarios and concluded that the extent of defensive medicine was at most 8%. The study by Glassman et al. found no correlation between individual malpractice claims experience to use of resources among 835 physicians including internists. Nor did they find a correlation between malpractice claims experience and an individual physician’s concern about malpractice, tolerance for uncertainty or perception of risk.

Finally, in an interview of 29 physicians and 17 administrators about their use of the more expensive low-osmolar contrast agent and the cheaper high-osmolar agent, investigators found that clinical and cost concerns were more important than were the legal factors (J. Health Polit. Policy Law 1996;21:243-66).

They concluded that "clinical factors dominate the decision-making process, making it unlikely that a policy focus on reducing incentives for defensive medicine will substantially reduce health care costs."

Dr. Tan is an emeritus professor of medicine at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: A patient in his 30s presented to Dr. C with atypical substernal chest pain. There was no family history of heart disease, he had no cardiac risk factors, and the examination was normal. Although the clinical picture was not that of myocardial ischemia, Dr. C obtained an EKG and serum creatine phosphokinase (CPK) and troponin levels, all of which were normal. In recent years, Dr. C, a cardiologist, has given up doing invasive procedures to reduce malpractice exposure. Which of the following is best?

A. The work-up of chest pain in this patient can be considered defensive medicine if it’s done primarily out of malpractice fear.

B. Questionnaire surveys generally conclude that virtually all doctors practice defensive medicine.

C. Giving up "high-risk" procedures purely for medicolegal reasons (malpractice concerns) is a form of defensive medicine.

D. There is controversy over what constitutes defensive medicine, how much it costs, and whether it is in fact widely practiced.

E. All are correct.

Answer: E. Almost all doctors admit they practice defensive medicine, which has been defined as "deviation from sound medical practice that is induced primarily by a threat of liability" (JAMA 2005;293:2609-17). Positive defensive medicine, centering on assurance behavior, provides additional services that are of no medical value. An example is obtaining a head CT in all cases of headaches. Negative defensive medicine speaks to avoidance behavior, with the doctor foregoing interventions that he or she perceives as increased malpractice risk, such as performing invasive procedures.

A 2003 survey of specialists in Pennsylvania found that 93% practiced defensive medicine. Assurance behavior – such as ordering tests, performing diagnostic procedures, and referring patients for consultation – was very common (92%). A particularly widespread defensive act was the use of imaging technology in clinically unnecessary circumstances. Avoidance of litigation-prone procedures and patients was also widespread. Forty-two percent of respondents reported that they had taken steps to restrict their practice in the previous 3 years including avoiding trauma surgery as well as patients with complex medical problems or who were perceived as litigious.

In a 2005 study, emergency physicians in the upper tertile of malpractice fear were found to use more diagnostic tests and were more likely to hospitalize patients at low risk for coronary artery disease (Ann. Emerg. Med. 2005;46:525-33).

Defensive medicine also was found to be widespread (83%) among 900 doctors in a survey recently conducted by the Massachusetts Medical Society.

It is widely believed that defensive medicine adds to the nation’s medical bill. By correlating professional liability insurance with cost of services, the AMA estimated that in the 1980s, defensive medicine cost $12.1-$13.7 billion each year (JAMA 1987;257:2776-81).

In an oft-cited study by Kessler and McClellan (Q. J. Econ. 1996;111:353-90), the authors measured the effects of malpractice liability reforms using data on elderly Medicare beneficiaries treated for serious heart disease and found that reforms that directly reduced provider liability pressure led to reductions of 5%-9% in medical expenditures. If such Medicare savings, which amounted to $600 million per year for cardiac disease, were extrapolated across the health care system, the total annual savings would amount to $50 billion. A more conservative study estimated that system-wide savings from aggressive malpractice reform would approach $41 billion over 5 years (J. Am. Health Policy 1994;4:7-15).

Skeptics, however, question the way the profession defines defensive medicine, pointing out that malpractice concerns may be one, but not the only or even the primary reason as most interventions add some marginal value to patient care. Besides, physicians in low litigious jurisdictions display similar behavior, for example, in Japan, where 98% of 131 gastroenterologists in Hiroshima admitted to the practice although only three (2%) respondents had been sued and most respondents (96%) had liability insurance (World J. Gastro. 2006;12:7671-5).

Above all, skeptics argue that there is no acceptable method for measuring the extent and use of defensive medicine, and survey reports are apt to be misleading because of bias and the lack of controls and baseline data.

Several reports challenge the belief that the practice of defensive medicine is widespread and therefore adds hugely to health care costs (J. Health Polit. Policy Law 1996;21:267-88).

The Klingman study used simulated clinical scenarios and concluded that the extent of defensive medicine was at most 8%. The study by Glassman et al. found no correlation between individual malpractice claims experience to use of resources among 835 physicians including internists. Nor did they find a correlation between malpractice claims experience and an individual physician’s concern about malpractice, tolerance for uncertainty or perception of risk.

Finally, in an interview of 29 physicians and 17 administrators about their use of the more expensive low-osmolar contrast agent and the cheaper high-osmolar agent, investigators found that clinical and cost concerns were more important than were the legal factors (J. Health Polit. Policy Law 1996;21:243-66).

They concluded that "clinical factors dominate the decision-making process, making it unlikely that a policy focus on reducing incentives for defensive medicine will substantially reduce health care costs."

Dr. Tan is an emeritus professor of medicine at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: A patient in his 30s presented to Dr. C with atypical substernal chest pain. There was no family history of heart disease, he had no cardiac risk factors, and the examination was normal. Although the clinical picture was not that of myocardial ischemia, Dr. C obtained an EKG and serum creatine phosphokinase (CPK) and troponin levels, all of which were normal. In recent years, Dr. C, a cardiologist, has given up doing invasive procedures to reduce malpractice exposure. Which of the following is best?

A. The work-up of chest pain in this patient can be considered defensive medicine if it’s done primarily out of malpractice fear.

B. Questionnaire surveys generally conclude that virtually all doctors practice defensive medicine.

C. Giving up "high-risk" procedures purely for medicolegal reasons (malpractice concerns) is a form of defensive medicine.

D. There is controversy over what constitutes defensive medicine, how much it costs, and whether it is in fact widely practiced.

E. All are correct.

Answer: E. Almost all doctors admit they practice defensive medicine, which has been defined as "deviation from sound medical practice that is induced primarily by a threat of liability" (JAMA 2005;293:2609-17). Positive defensive medicine, centering on assurance behavior, provides additional services that are of no medical value. An example is obtaining a head CT in all cases of headaches. Negative defensive medicine speaks to avoidance behavior, with the doctor foregoing interventions that he or she perceives as increased malpractice risk, such as performing invasive procedures.

A 2003 survey of specialists in Pennsylvania found that 93% practiced defensive medicine. Assurance behavior – such as ordering tests, performing diagnostic procedures, and referring patients for consultation – was very common (92%). A particularly widespread defensive act was the use of imaging technology in clinically unnecessary circumstances. Avoidance of litigation-prone procedures and patients was also widespread. Forty-two percent of respondents reported that they had taken steps to restrict their practice in the previous 3 years including avoiding trauma surgery as well as patients with complex medical problems or who were perceived as litigious.

In a 2005 study, emergency physicians in the upper tertile of malpractice fear were found to use more diagnostic tests and were more likely to hospitalize patients at low risk for coronary artery disease (Ann. Emerg. Med. 2005;46:525-33).

Defensive medicine also was found to be widespread (83%) among 900 doctors in a survey recently conducted by the Massachusetts Medical Society.

It is widely believed that defensive medicine adds to the nation’s medical bill. By correlating professional liability insurance with cost of services, the AMA estimated that in the 1980s, defensive medicine cost $12.1-$13.7 billion each year (JAMA 1987;257:2776-81).

In an oft-cited study by Kessler and McClellan (Q. J. Econ. 1996;111:353-90), the authors measured the effects of malpractice liability reforms using data on elderly Medicare beneficiaries treated for serious heart disease and found that reforms that directly reduced provider liability pressure led to reductions of 5%-9% in medical expenditures. If such Medicare savings, which amounted to $600 million per year for cardiac disease, were extrapolated across the health care system, the total annual savings would amount to $50 billion. A more conservative study estimated that system-wide savings from aggressive malpractice reform would approach $41 billion over 5 years (J. Am. Health Policy 1994;4:7-15).

Skeptics, however, question the way the profession defines defensive medicine, pointing out that malpractice concerns may be one, but not the only or even the primary reason as most interventions add some marginal value to patient care. Besides, physicians in low litigious jurisdictions display similar behavior, for example, in Japan, where 98% of 131 gastroenterologists in Hiroshima admitted to the practice although only three (2%) respondents had been sued and most respondents (96%) had liability insurance (World J. Gastro. 2006;12:7671-5).

Above all, skeptics argue that there is no acceptable method for measuring the extent and use of defensive medicine, and survey reports are apt to be misleading because of bias and the lack of controls and baseline data.

Several reports challenge the belief that the practice of defensive medicine is widespread and therefore adds hugely to health care costs (J. Health Polit. Policy Law 1996;21:267-88).

The Klingman study used simulated clinical scenarios and concluded that the extent of defensive medicine was at most 8%. The study by Glassman et al. found no correlation between individual malpractice claims experience to use of resources among 835 physicians including internists. Nor did they find a correlation between malpractice claims experience and an individual physician’s concern about malpractice, tolerance for uncertainty or perception of risk.

Finally, in an interview of 29 physicians and 17 administrators about their use of the more expensive low-osmolar contrast agent and the cheaper high-osmolar agent, investigators found that clinical and cost concerns were more important than were the legal factors (J. Health Polit. Policy Law 1996;21:243-66).

They concluded that "clinical factors dominate the decision-making process, making it unlikely that a policy focus on reducing incentives for defensive medicine will substantially reduce health care costs."

Dr. Tan is an emeritus professor of medicine at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: Regarding end-of-life issues, which of the following statements is most accurate?

A. All persons may forgo life-sustaining treatment including artificial nutrition and hydration.

B. A doctor may administer increasing doses of morphine to treat pain, even if this may cause respiratory depression and hasten death.

C. By exercising the right of autonomy, a patient may legally request physician-assisted suicide.

D. If a patient lacks medical decision–making capacity and there is no next of kin to give consent, then two doctors can together provide treatment in the patient’s best interest.

E. Just as there is a fundamental right to stop treatment, there also is a fundamental right to insist on continuing treatment.

Answer: B. Only an adult of "sound mind" can make decisions to accept or reject medical treatment, but this does not extend to physician-assisted suicide, which is illegal in all states except Oregon and Washington. Choices A & C are therefore incorrect. Where a patient lacks mental capacity and there is no surrogate decision-maker available, the doctor is obligated, except in an emergency situation, to apply to the court for a guardian ad litem. Simply having two (or more) physicians agree to a course of treatment is inappropriate. The best choice is B; it speaks to the ethical principle of "double effect," in which the intent is to confer a benefit such as pain relief, notwithstanding knowledge of an adverse consequence including hastening the patient’s demise. E is incorrect as there is no right to futile treatment.

In the 1976 landmark case of Karen Ann Quinlan, the New Jersey court underscored the fundamental right of a young woman in a persistent vegetative state to forgo life-sustaining support with a mechanical ventilator. Furthermore, the court allowed the right to be exercised by her parents on her behalf, and recommended the formation of hospital ethics committees to decide such matters.

This right was extended to cover artificial feeding by a unanimous U.S. Supreme Court decision in Cruzan v. Director, Missouri Department of Health. There, the court reasoned that whether or not the techniques used to pass food and water into the patient’s alimentary tract were termed "medical treatment," it was clear they all involved some degree of intrusion and restraint. Requiring a competent adult to endure such procedures against her will burdens the patient’s liberty, dignity, and freedom to determine the course of her own treatment. The Court held that the liberty guaranteed by the Due Process Clause must protect an individual’s deeply personal decision to reject medical treatment, including the artificial delivery of food and water.

However, where a patient’s wishes are not clear and convincing, a court will be reluctant to order cessation of treatment. In a 6-0 decision, the California Supreme Court ruled in Wendland v. Wendland, that a patient’s tube feedings could not be discontinued under the circumstances of the case. Robert Wendland regained consciousness after 14 months in a coma but was left hemiparetic and incontinent and could not feed by mouth or dress, and bathe and communicate consistently. His wife Rose refused to authorize reinsertion of a dislodged feeding tube, believing that Robert would not have wanted it replaced. The decision was supported by his daughter and brother, the hospital’s ethics committee, county ombudsman, and a court-appointed counsel. But the patient’s mother, Florence, went to court to block the action. Robert did not have an advance directive but had made statements to the effect he would not want to live in a vegetative state.

The court determined that Robert’s statements were not clear and convincing because they did not address his current condition, were not sufficiently specific, and were not necessarily intended to direct his medical care. Further, the patient’s spouse had failed to provide sufficient evidence that her decision was in her husband’s best interests.

A contentious end-of-life issue is that of medical futility, which basically denotes treatment that cannot confer an overall benefit on the whole person even if it can restore some physiologic variable. The stickiest scenario is where a family member insists on futile treatment against the advice of the attending doctors. In earlier cases, the courts had avoided addressing this issue directly, but in a 1995 trial, Gilgunn v. Massachusetts General Hospital, a jury returned a resounding verdict for the defendant hospital that directed the unilateral withholding of futile treatment against the wishes of the patient’s daughter.

Finally, there is the issue of physician-assisted suicide and active euthanasia that achieved public notoriety with the criminal conviction of Dr. Jack Kevorkian. In Vacco v. Quill, the U.S. Supreme Court reasoned that the important, logical, and rational distinction between assisting suicide and withdrawing life-sustaining treatment comports with fundamental legal principles of causation and intent. First, when a patient refuses life-sustaining medical treatment, he dies from an underlying fatal disease or pathology; but if a patient ingests lethal medication prescribed by a physician, he is killed by that medication.

Furthermore, a physician who withdraws, or honors a patient’s refusal to begin life-sustaining medical treatment purposefully intends, or may so intend, only to respect his patient’s wishes and to cease doing useless and futile or degrading things to the patient when the patient no longer stands to benefit from them. The same is true when a doctor provides aggressive palliative care; in some cases, painkilling drugs may hasten a patient’s death, but the physician’s purpose and intent is, or may be, to ease his patient’s pain only.

A doctor who assists a suicide, however, "must, necessarily, and indubitably, intend primarily that the patient be made dead." Similarly, a patient who commits suicide with a doctor’s aid necessarily has the specific intent to end his or her own life, while a patient who refuses or discontinues treatment might not. In holding that there is no fundamental right to physician-assisted suicide, the U.S. Supreme Court nonetheless left open to the individual states the continuing debate over this contentious matter. Legalizing physician-assisted suicide and/or euthanasia is opposed by most professional organizations including the American Medical Association.

Dr. Tan is emeritus professor of medicine at the University of Hawaii and director of the St. Francis International Center for Healthcare Ethics. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author a

Question: Regarding end-of-life issues, which of the following statements is most accurate?

A. All persons may forgo life-sustaining treatment including artificial nutrition and hydration.

B. A doctor may administer increasing doses of morphine to treat pain, even if this may cause respiratory depression and hasten death.

C. By exercising the right of autonomy, a patient may legally request physician-assisted suicide.

D. If a patient lacks medical decision–making capacity and there is no next of kin to give consent, then two doctors can together provide treatment in the patient’s best interest.

E. Just as there is a fundamental right to stop treatment, there also is a fundamental right to insist on continuing treatment.

Answer: B. Only an adult of "sound mind" can make decisions to accept or reject medical treatment, but this does not extend to physician-assisted suicide, which is illegal in all states except Oregon and Washington. Choices A & C are therefore incorrect. Where a patient lacks mental capacity and there is no surrogate decision-maker available, the doctor is obligated, except in an emergency situation, to apply to the court for a guardian ad litem. Simply having two (or more) physicians agree to a course of treatment is inappropriate. The best choice is B; it speaks to the ethical principle of "double effect," in which the intent is to confer a benefit such as pain relief, notwithstanding knowledge of an adverse consequence including hastening the patient’s demise. E is incorrect as there is no right to futile treatment.

In the 1976 landmark case of Karen Ann Quinlan, the New Jersey court underscored the fundamental right of a young woman in a persistent vegetative state to forgo life-sustaining support with a mechanical ventilator. Furthermore, the court allowed the right to be exercised by her parents on her behalf, and recommended the formation of hospital ethics committees to decide such matters.

This right was extended to cover artificial feeding by a unanimous U.S. Supreme Court decision in Cruzan v. Director, Missouri Department of Health. There, the court reasoned that whether or not the techniques used to pass food and water into the patient’s alimentary tract were termed "medical treatment," it was clear they all involved some degree of intrusion and restraint. Requiring a competent adult to endure such procedures against her will burdens the patient’s liberty, dignity, and freedom to determine the course of her own treatment. The Court held that the liberty guaranteed by the Due Process Clause must protect an individual’s deeply personal decision to reject medical treatment, including the artificial delivery of food and water.

However, where a patient’s wishes are not clear and convincing, a court will be reluctant to order cessation of treatment. In a 6-0 decision, the California Supreme Court ruled in Wendland v. Wendland, that a patient’s tube feedings could not be discontinued under the circumstances of the case. Robert Wendland regained consciousness after 14 months in a coma but was left hemiparetic and incontinent and could not feed by mouth or dress, and bathe and communicate consistently. His wife Rose refused to authorize reinsertion of a dislodged feeding tube, believing that Robert would not have wanted it replaced. The decision was supported by his daughter and brother, the hospital’s ethics committee, county ombudsman, and a court-appointed counsel. But the patient’s mother, Florence, went to court to block the action. Robert did not have an advance directive but had made statements to the effect he would not want to live in a vegetative state.

The court determined that Robert’s statements were not clear and convincing because they did not address his current condition, were not sufficiently specific, and were not necessarily intended to direct his medical care. Further, the patient’s spouse had failed to provide sufficient evidence that her decision was in her husband’s best interests.

A contentious end-of-life issue is that of medical futility, which basically denotes treatment that cannot confer an overall benefit on the whole person even if it can restore some physiologic variable. The stickiest scenario is where a family member insists on futile treatment against the advice of the attending doctors. In earlier cases, the courts had avoided addressing this issue directly, but in a 1995 trial, Gilgunn v. Massachusetts General Hospital, a jury returned a resounding verdict for the defendant hospital that directed the unilateral withholding of futile treatment against the wishes of the patient’s daughter.

Finally, there is the issue of physician-assisted suicide and active euthanasia that achieved public notoriety with the criminal conviction of Dr. Jack Kevorkian. In Vacco v. Quill, the U.S. Supreme Court reasoned that the important, logical, and rational distinction between assisting suicide and withdrawing life-sustaining treatment comports with fundamental legal principles of causation and intent. First, when a patient refuses life-sustaining medical treatment, he dies from an underlying fatal disease or pathology; but if a patient ingests lethal medication prescribed by a physician, he is killed by that medication.

Furthermore, a physician who withdraws, or honors a patient’s refusal to begin life-sustaining medical treatment purposefully intends, or may so intend, only to respect his patient’s wishes and to cease doing useless and futile or degrading things to the patient when the patient no longer stands to benefit from them. The same is true when a doctor provides aggressive palliative care; in some cases, painkilling drugs may hasten a patient’s death, but the physician’s purpose and intent is, or may be, to ease his patient’s pain only.

A doctor who assists a suicide, however, "must, necessarily, and indubitably, intend primarily that the patient be made dead." Similarly, a patient who commits suicide with a doctor’s aid necessarily has the specific intent to end his or her own life, while a patient who refuses or discontinues treatment might not. In holding that there is no fundamental right to physician-assisted suicide, the U.S. Supreme Court nonetheless left open to the individual states the continuing debate over this contentious matter. Legalizing physician-assisted suicide and/or euthanasia is opposed by most professional organizations including the American Medical Association.

Dr. Tan is emeritus professor of medicine at the University of Hawaii and director of the St. Francis International Center for Healthcare Ethics. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author a

Question: Regarding end-of-life issues, which of the following statements is most accurate?

A. All persons may forgo life-sustaining treatment including artificial nutrition and hydration.

B. A doctor may administer increasing doses of morphine to treat pain, even if this may cause respiratory depression and hasten death.

C. By exercising the right of autonomy, a patient may legally request physician-assisted suicide.

D. If a patient lacks medical decision–making capacity and there is no next of kin to give consent, then two doctors can together provide treatment in the patient’s best interest.

E. Just as there is a fundamental right to stop treatment, there also is a fundamental right to insist on continuing treatment.

Answer: B. Only an adult of "sound mind" can make decisions to accept or reject medical treatment, but this does not extend to physician-assisted suicide, which is illegal in all states except Oregon and Washington. Choices A & C are therefore incorrect. Where a patient lacks mental capacity and there is no surrogate decision-maker available, the doctor is obligated, except in an emergency situation, to apply to the court for a guardian ad litem. Simply having two (or more) physicians agree to a course of treatment is inappropriate. The best choice is B; it speaks to the ethical principle of "double effect," in which the intent is to confer a benefit such as pain relief, notwithstanding knowledge of an adverse consequence including hastening the patient’s demise. E is incorrect as there is no right to futile treatment.

In the 1976 landmark case of Karen Ann Quinlan, the New Jersey court underscored the fundamental right of a young woman in a persistent vegetative state to forgo life-sustaining support with a mechanical ventilator. Furthermore, the court allowed the right to be exercised by her parents on her behalf, and recommended the formation of hospital ethics committees to decide such matters.

This right was extended to cover artificial feeding by a unanimous U.S. Supreme Court decision in Cruzan v. Director, Missouri Department of Health. There, the court reasoned that whether or not the techniques used to pass food and water into the patient’s alimentary tract were termed "medical treatment," it was clear they all involved some degree of intrusion and restraint. Requiring a competent adult to endure such procedures against her will burdens the patient’s liberty, dignity, and freedom to determine the course of her own treatment. The Court held that the liberty guaranteed by the Due Process Clause must protect an individual’s deeply personal decision to reject medical treatment, including the artificial delivery of food and water.

However, where a patient’s wishes are not clear and convincing, a court will be reluctant to order cessation of treatment. In a 6-0 decision, the California Supreme Court ruled in Wendland v. Wendland, that a patient’s tube feedings could not be discontinued under the circumstances of the case. Robert Wendland regained consciousness after 14 months in a coma but was left hemiparetic and incontinent and could not feed by mouth or dress, and bathe and communicate consistently. His wife Rose refused to authorize reinsertion of a dislodged feeding tube, believing that Robert would not have wanted it replaced. The decision was supported by his daughter and brother, the hospital’s ethics committee, county ombudsman, and a court-appointed counsel. But the patient’s mother, Florence, went to court to block the action. Robert did not have an advance directive but had made statements to the effect he would not want to live in a vegetative state.

The court determined that Robert’s statements were not clear and convincing because they did not address his current condition, were not sufficiently specific, and were not necessarily intended to direct his medical care. Further, the patient’s spouse had failed to provide sufficient evidence that her decision was in her husband’s best interests.

A contentious end-of-life issue is that of medical futility, which basically denotes treatment that cannot confer an overall benefit on the whole person even if it can restore some physiologic variable. The stickiest scenario is where a family member insists on futile treatment against the advice of the attending doctors. In earlier cases, the courts had avoided addressing this issue directly, but in a 1995 trial, Gilgunn v. Massachusetts General Hospital, a jury returned a resounding verdict for the defendant hospital that directed the unilateral withholding of futile treatment against the wishes of the patient’s daughter.

Finally, there is the issue of physician-assisted suicide and active euthanasia that achieved public notoriety with the criminal conviction of Dr. Jack Kevorkian. In Vacco v. Quill, the U.S. Supreme Court reasoned that the important, logical, and rational distinction between assisting suicide and withdrawing life-sustaining treatment comports with fundamental legal principles of causation and intent. First, when a patient refuses life-sustaining medical treatment, he dies from an underlying fatal disease or pathology; but if a patient ingests lethal medication prescribed by a physician, he is killed by that medication.

Furthermore, a physician who withdraws, or honors a patient’s refusal to begin life-sustaining medical treatment purposefully intends, or may so intend, only to respect his patient’s wishes and to cease doing useless and futile or degrading things to the patient when the patient no longer stands to benefit from them. The same is true when a doctor provides aggressive palliative care; in some cases, painkilling drugs may hasten a patient’s death, but the physician’s purpose and intent is, or may be, to ease his patient’s pain only.

A doctor who assists a suicide, however, "must, necessarily, and indubitably, intend primarily that the patient be made dead." Similarly, a patient who commits suicide with a doctor’s aid necessarily has the specific intent to end his or her own life, while a patient who refuses or discontinues treatment might not. In holding that there is no fundamental right to physician-assisted suicide, the U.S. Supreme Court nonetheless left open to the individual states the continuing debate over this contentious matter. Legalizing physician-assisted suicide and/or euthanasia is opposed by most professional organizations including the American Medical Association.

Dr. Tan is emeritus professor of medicine at the University of Hawaii and director of the St. Francis International Center for Healthcare Ethics. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author a

Question: A 51-year-old diabetic woman had lapsed into septic shock and coma when the doctors sought a court order for urgent lifesaving bilateral below-knee amputation. The patient had earlier, while competent, refused such an intervention, but the situation was not as acute at that time. The only available family member was her minor 16-year-old son and there was insufficient time to appoint a guardian ad litem. The court found that the patient’s earlier statements regarding her preference to die rather than losing her legs were made without benefit of medical advice of impending death. Which of the following is best?

A. A competent person is entitled to withhold consent, and doctors are obliged to respect that decision unless in their opinion the refusal of treatment is likely to cause death.

B. Under the circumstances of this case, the court may grant or withhold consent using the "best interests" test.

C. The better approach is to secure consent from the 16-year-old son.

D. A court order is unnecessary in this case because it is a true emergency, which allows doctors to perform lifesaving surgery without consent.

E. All are correct.

Answer: B. The above hypothetical is adapted from an actual case in which the court used the best interests test in granting permission to proceed with the operation.

A patient’s decision to accept or forgo medical treatment is accorded legal recognition on the basis of patient autonomy, so long as capacity to consent is not at issue. As Judge Cardozo famously stated in the 1914 case, Schloendorff v. Society of New York Hospital, "Every person of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages." The case featured a woman whose fibroid tumor was removed while she was under anesthesia although she had specifically refused the operation.

A person is not to be considered incapacitated in decision making merely because he makes an unwise choice, and a well-documented refusal cannot be vitiated by a spouse or next of kin, nor brushed aside in the name of an emergency. Where the wishes of the patient are unknown, courts have resorted to the objective "best interests" test. If it can be ascertained what the patient might have wanted based on knowledge of his/her overall life choices, then such a "substituted judgment" (a subjective test) is used to guide the judicial decision.

Patient refusal to undergo a surgically invasive procedure, such as amputation or pacemaker placement, even if considered ill advised by the treatment team, is regularly given due judicial deference. Courts have upheld the refusal of a patient, in one case a schizophrenic, to undergo an amputation for a gangrenous leg. Likewise, it sided with a mother’s refusal to undergo a cesarean section despite imperiling her viable unborn. However, where there are compelling countervailing factors such as the health interests of a third party, courts have compelled blood transfusions, forced C-sections, and even famously intervened to separate conjoined twins. In the latter instance, an English court permitted the heroic separation of conjoined twins Mary and Jodie despite the inevitability that Mary, the weaker twin, would die during the operation. The court order was issued over the objections of the parents who were devout Catholics.

Then there is the occasional hospitalized patient who wishes to sign out against medical advice, despite being repeatedly warned it is an untimely discharge. However, this unwise decision is usually within the patient’s legal rights, and the attending may be left with the tasks of ensuring that the patient understands the serious consequences, providing temporary medications to the extent possible, and emphasizing immediate medical follow-up in the clinic or with the primary physician. Appealing to family members can sometimes convince the patient to stay, so this is a worthwhile effort.

Another example of patients deciding to forgo beneficial treatment concerns blood transfusion in Jehovah’s Witnesses based on religious grounds. Doctors generally acquiesce to a patient’s choice, but some complain that by refusing blood, Jehovah’s Witnesses render their work riskier and more difficult ("having to operate with one hand tied behind their backs"). As a result, there is a temptation to resort to subterfuge, such as transfusing without informing the patient, or waiting until the patient becomes comatose and is no longer able to refuse. However, such deceptive practices are unethical and inappropriate because they override patient autonomy and disrespect a patient’s sincerely held religious belief.

However, one should make sure that the patient has indeed chosen to forgo blood, and wherever possible, physicians should speak privately to a Jehovah’s Witness to ascertain his or her true wishes. Others have employed the approach of asking the patient to be guided by a court’s decision. In general, courts have resisted forcing transfusions in competent adults, holding that Jehovah’s Witnesses’ religious right to refuse blood is more compelling than the state’s interest in preserving life. On the other hand, some courts have ordered blood transfusions in children despite parental objections, or in cases in which there is a third-party at issue, such as in an advanced pregnancy with a viable fetus. It is worth noting that surgeons are increasingly adept at using relatively bloodless surgical techniques to bypass the need for transfusions. As a result, morbidity and mortality outcomes may not dramatically worsen, even for major operations such as open-heart surgery.

The right to refuse life-sustaining treatment, including artificial hydration and nutrition, will be discussed in a subsequent article.

Dr. Tan is emeritus professor of medicine at the University of Hawaii and director of the St. Francis International Center for Healthcare Ethics, both in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: A 51-year-old diabetic woman had lapsed into septic shock and coma when the doctors sought a court order for urgent lifesaving bilateral below-knee amputation. The patient had earlier, while competent, refused such an intervention, but the situation was not as acute at that time. The only available family member was her minor 16-year-old son and there was insufficient time to appoint a guardian ad litem. The court found that the patient’s earlier statements regarding her preference to die rather than losing her legs were made without benefit of medical advice of impending death. Which of the following is best?

A. A competent person is entitled to withhold consent, and doctors are obliged to respect that decision unless in their opinion the refusal of treatment is likely to cause death.

B. Under the circumstances of this case, the court may grant or withhold consent using the "best interests" test.

C. The better approach is to secure consent from the 16-year-old son.

D. A court order is unnecessary in this case because it is a true emergency, which allows doctors to perform lifesaving surgery without consent.

E. All are correct.

Answer: B. The above hypothetical is adapted from an actual case in which the court used the best interests test in granting permission to proceed with the operation.

A patient’s decision to accept or forgo medical treatment is accorded legal recognition on the basis of patient autonomy, so long as capacity to consent is not at issue. As Judge Cardozo famously stated in the 1914 case, Schloendorff v. Society of New York Hospital, "Every person of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages." The case featured a woman whose fibroid tumor was removed while she was under anesthesia although she had specifically refused the operation.

A person is not to be considered incapacitated in decision making merely because he makes an unwise choice, and a well-documented refusal cannot be vitiated by a spouse or next of kin, nor brushed aside in the name of an emergency. Where the wishes of the patient are unknown, courts have resorted to the objective "best interests" test. If it can be ascertained what the patient might have wanted based on knowledge of his/her overall life choices, then such a "substituted judgment" (a subjective test) is used to guide the judicial decision.

Patient refusal to undergo a surgically invasive procedure, such as amputation or pacemaker placement, even if considered ill advised by the treatment team, is regularly given due judicial deference. Courts have upheld the refusal of a patient, in one case a schizophrenic, to undergo an amputation for a gangrenous leg. Likewise, it sided with a mother’s refusal to undergo a cesarean section despite imperiling her viable unborn. However, where there are compelling countervailing factors such as the health interests of a third party, courts have compelled blood transfusions, forced C-sections, and even famously intervened to separate conjoined twins. In the latter instance, an English court permitted the heroic separation of conjoined twins Mary and Jodie despite the inevitability that Mary, the weaker twin, would die during the operation. The court order was issued over the objections of the parents who were devout Catholics.

Then there is the occasional hospitalized patient who wishes to sign out against medical advice, despite being repeatedly warned it is an untimely discharge. However, this unwise decision is usually within the patient’s legal rights, and the attending may be left with the tasks of ensuring that the patient understands the serious consequences, providing temporary medications to the extent possible, and emphasizing immediate medical follow-up in the clinic or with the primary physician. Appealing to family members can sometimes convince the patient to stay, so this is a worthwhile effort.

Another example of patients deciding to forgo beneficial treatment concerns blood transfusion in Jehovah’s Witnesses based on religious grounds. Doctors generally acquiesce to a patient’s choice, but some complain that by refusing blood, Jehovah’s Witnesses render their work riskier and more difficult ("having to operate with one hand tied behind their backs"). As a result, there is a temptation to resort to subterfuge, such as transfusing without informing the patient, or waiting until the patient becomes comatose and is no longer able to refuse. However, such deceptive practices are unethical and inappropriate because they override patient autonomy and disrespect a patient’s sincerely held religious belief.

However, one should make sure that the patient has indeed chosen to forgo blood, and wherever possible, physicians should speak privately to a Jehovah’s Witness to ascertain his or her true wishes. Others have employed the approach of asking the patient to be guided by a court’s decision. In general, courts have resisted forcing transfusions in competent adults, holding that Jehovah’s Witnesses’ religious right to refuse blood is more compelling than the state’s interest in preserving life. On the other hand, some courts have ordered blood transfusions in children despite parental objections, or in cases in which there is a third-party at issue, such as in an advanced pregnancy with a viable fetus. It is worth noting that surgeons are increasingly adept at using relatively bloodless surgical techniques to bypass the need for transfusions. As a result, morbidity and mortality outcomes may not dramatically worsen, even for major operations such as open-heart surgery.

The right to refuse life-sustaining treatment, including artificial hydration and nutrition, will be discussed in a subsequent article.

Dr. Tan is emeritus professor of medicine at the University of Hawaii and director of the St. Francis International Center for Healthcare Ethics, both in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: A 51-year-old diabetic woman had lapsed into septic shock and coma when the doctors sought a court order for urgent lifesaving bilateral below-knee amputation. The patient had earlier, while competent, refused such an intervention, but the situation was not as acute at that time. The only available family member was her minor 16-year-old son and there was insufficient time to appoint a guardian ad litem. The court found that the patient’s earlier statements regarding her preference to die rather than losing her legs were made without benefit of medical advice of impending death. Which of the following is best?

A. A competent person is entitled to withhold consent, and doctors are obliged to respect that decision unless in their opinion the refusal of treatment is likely to cause death.

B. Under the circumstances of this case, the court may grant or withhold consent using the "best interests" test.

C. The better approach is to secure consent from the 16-year-old son.

D. A court order is unnecessary in this case because it is a true emergency, which allows doctors to perform lifesaving surgery without consent.

E. All are correct.

Answer: B. The above hypothetical is adapted from an actual case in which the court used the best interests test in granting permission to proceed with the operation.

A patient’s decision to accept or forgo medical treatment is accorded legal recognition on the basis of patient autonomy, so long as capacity to consent is not at issue. As Judge Cardozo famously stated in the 1914 case, Schloendorff v. Society of New York Hospital, "Every person of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages." The case featured a woman whose fibroid tumor was removed while she was under anesthesia although she had specifically refused the operation.

A person is not to be considered incapacitated in decision making merely because he makes an unwise choice, and a well-documented refusal cannot be vitiated by a spouse or next of kin, nor brushed aside in the name of an emergency. Where the wishes of the patient are unknown, courts have resorted to the objective "best interests" test. If it can be ascertained what the patient might have wanted based on knowledge of his/her overall life choices, then such a "substituted judgment" (a subjective test) is used to guide the judicial decision.

Patient refusal to undergo a surgically invasive procedure, such as amputation or pacemaker placement, even if considered ill advised by the treatment team, is regularly given due judicial deference. Courts have upheld the refusal of a patient, in one case a schizophrenic, to undergo an amputation for a gangrenous leg. Likewise, it sided with a mother’s refusal to undergo a cesarean section despite imperiling her viable unborn. However, where there are compelling countervailing factors such as the health interests of a third party, courts have compelled blood transfusions, forced C-sections, and even famously intervened to separate conjoined twins. In the latter instance, an English court permitted the heroic separation of conjoined twins Mary and Jodie despite the inevitability that Mary, the weaker twin, would die during the operation. The court order was issued over the objections of the parents who were devout Catholics.

Then there is the occasional hospitalized patient who wishes to sign out against medical advice, despite being repeatedly warned it is an untimely discharge. However, this unwise decision is usually within the patient’s legal rights, and the attending may be left with the tasks of ensuring that the patient understands the serious consequences, providing temporary medications to the extent possible, and emphasizing immediate medical follow-up in the clinic or with the primary physician. Appealing to family members can sometimes convince the patient to stay, so this is a worthwhile effort.

Another example of patients deciding to forgo beneficial treatment concerns blood transfusion in Jehovah’s Witnesses based on religious grounds. Doctors generally acquiesce to a patient’s choice, but some complain that by refusing blood, Jehovah’s Witnesses render their work riskier and more difficult ("having to operate with one hand tied behind their backs"). As a result, there is a temptation to resort to subterfuge, such as transfusing without informing the patient, or waiting until the patient becomes comatose and is no longer able to refuse. However, such deceptive practices are unethical and inappropriate because they override patient autonomy and disrespect a patient’s sincerely held religious belief.

However, one should make sure that the patient has indeed chosen to forgo blood, and wherever possible, physicians should speak privately to a Jehovah’s Witness to ascertain his or her true wishes. Others have employed the approach of asking the patient to be guided by a court’s decision. In general, courts have resisted forcing transfusions in competent adults, holding that Jehovah’s Witnesses’ religious right to refuse blood is more compelling than the state’s interest in preserving life. On the other hand, some courts have ordered blood transfusions in children despite parental objections, or in cases in which there is a third-party at issue, such as in an advanced pregnancy with a viable fetus. It is worth noting that surgeons are increasingly adept at using relatively bloodless surgical techniques to bypass the need for transfusions. As a result, morbidity and mortality outcomes may not dramatically worsen, even for major operations such as open-heart surgery.

The right to refuse life-sustaining treatment, including artificial hydration and nutrition, will be discussed in a subsequent article.

Dr. Tan is emeritus professor of medicine at the University of Hawaii and director of the St. Francis International Center for Healthcare Ethics, both in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].