Failing To Follow A Living Will Doesn't Always Constitute Medical Malpractice

A living will provides direction to loved ones and medical staff regarding how you and your estate should be treated when you become too incapacitated to convey your wishes. Although healthcare providers are generally obligated to follow the directives in a living will, a study conducted in 2004 found two-thirds of the participants ignored patients' advance directives. Though it would seem the affected person would have a personal injury case against the violator, there are a few times when a doctor could act contrary to the order and not be found liable for damages.

Illegal Acts

Sometimes people draw up their living wills not aware that certain requests would require the medical professional to behave illegally. For example, physician-assisted suicide is illegal in 46 states in the US. However, some people with terminal illnesses may request to be given certain medications that would terminate their lives if administered. A physician in this situation couldn't comply if they practiced in a state that did not allow physician-assisted suicide because it would be against the law.

No Awareness of or Access to DNR Document

This issue typically comes up in emergency situations when decisions have to be made quickly and there is no way to determine if the person has a DNR or the document cannot be accessed for some reason. For instance, paramedics may perform lifesaving measures on a person because they were not informed nor had reason to know the individual has a DNR.

Additionally, anyone can tell medical staff a person has a living will. However, if neither the document nor the person's healthcare surrogate or representative is available to provide direction, the healthcare providers will act in the best interests of the patient. In this case, it's a matter of risk. The medical staff may not be willing to risk a lawsuit by taking the word of someone who is not legally able to speak on the incapacitated person's behalf.

The Surrogate Violates the Directive

Healthcare surrogates—people acting on patients' behalf—may sometimes go against the directives ordered in living wills. There are quite a few scenarios where this may happen. The document itself may give the person the power to make decisions contrary to the living will.

Another common scenario is when the recommended course of action may result in a better outcome than the one prescribed in the living will. For instance, a recommended surgery may restore some mobility or brain function. The surrogate may decide to go against the DNR and have the treatment done. In this case, the liability would fall on the surrogate rather than the medical professional.

The Directives Don't Cover the Circumstances

One issue many healthcare providers and surrogates run into is the living will doesn't completely cover the current medical issue, if at all. This occurs when advanced directives are too vague or too specific.

For instance, the doctor may surmise the individual has a 50 percent chance of returning to a normal state but the directive says to end life-sustaining measures if the predicted chance of recovery is 25 percent or less. In this case, the doctor and surrogate will have to use their best judgment to make a decision to continue medical treatment or not.

One of the requirements of proving medical malpractice is the healthcare provider acted negligently. However, if he or she behaves reasonably in such uncertain circumstances, then it will be difficult to obtain compensation for damages resulting from a violation of a DNR order.

When drawing up a living will, it's critical to do so with the assistance of a knowledgeable living wills attorney who can provide guidance that helps you draft a document that covers all the bases, so to speak. If you feel you have a valid case for damages, contact an attorney for assistance with filing a lawsuit.