CME Information

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The NORCAL Group of companies includes NORCAL Mutual Insurance Company, along with its subsidiary companies Medicus Insurance Company, FD Insurance Company, NORCAL Specialty Insurance Company and its affiliate Preferred Physicians Medical RRG.

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Method and Medium

To obtain CME credit, read the article then take the quiz and fill out the evaluation form. You can print or email your CME certificate from this application.

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Original Release Date: April 15, 2018

Expiration Date: May 1, 2020

Learning Objectives

By reviewing medical professional liability claims and/or emerging topics in healthcare risk management, this enduring material series will support your ability to:

• Assess your practice for risk exposures.
• Apply risk management best practices that increase patient safety and reduce medical professional liability claims.

Target Audience

All physicians, clinicians, staff and healthcare administrators.

Credit Designation Statement

NORCAL Mutual Insurance Company designates this enduring material for a maximum of 2 AMA PRA Category 1 Credits^TM. Physicians should claim only the credit commensurate with the extent of their participation in the activity.

Disclosure Policy

As an ACCME accredited provider, NORCAL Mutual Insurance Company requires planners, reviewers or authors who influence or control the content of a CME activity to disclose financial relationships (of any amount) they have had with commercial interests associated with this CME activity during the year preceding publication of the content.

Any identified conflicts of interest are resolved prior to the commencement of the activity.

Disclosures

Individuals involved in the planning, reviewing or execution of this activity have indicated they have no relevant financial relationships to disclose.

End-of-life healthcare is a multifaceted, difficult topic that can be approached from many different perspectives. This article's focus is liability risk management. Managing liability risk in end-of-life care has its own complexities, as strategies can require delving into medical ethics, law, healthcare policy and one's own morality and mortality. But managing liability risk in these cases can also be as straightforward as communicating well with colleagues, patients and their families. Familiarity with end-of-life healthcare risk management strategies is important for a broad range of clinicians, staff and the entities that employ them. Although palliative care specialists can be particularly helpful with end-of-life treatment issues, there is a significant shortage of them. Therefore, the responsibility of helping patients live as well as possible during their final stage of life falls primarily on generalists and specialists in areas other than palliative care.¹

Because of differences in state laws and the great variety of ways people die, prepare to die and experience the dying process, lawsuits by aggrieved families have various levels of success. Whether healthcare defendants "win" or "lose" these lawsuits can be beside the point, as the strain of protracted litigation is probably considered a "lose" by anyone who has been a defendant in a malpractice lawsuit. Communication failures, poor documentation and inadequate policies and procedures for end-of-life care are common themes in these lawsuits. Fortunately, there are risk management strategies to address these issues.

The risk management strategies presented in this article are based on case studies that have been drawn from lawsuits reported in the media, appellate opinions and NORCAL closed claims. They illustrate the variety of different ways healthcare teams grapple with aid-in-dying requests, advance directives, pain management with opioids and cultural differences surrounding the dying process.

Definitions

Advance Care Planning
Advance care planning is a process during which a patient develops a medical treatment plan that can go into effect if he or she loses the capacity for medical decision-making. This planning can begin at any age and without regard to current health status. An ideal planning team involves the patient's primary care clinician, healthcare agent, family members and other members of the healthcare team as appropriate. Advance directives and physician orders for end-of-life care are a part of advance care planning.²

Advance Directive
An advance directive is a patient-initiated legal document that goes into effect when the patient becomes incapacitated. There are two main elements in an advance directive - a living will and a durable power of attorney for healthcare. A living will describes the amount and kind of medical treatment the patient wants under specific conditions. A durable power of attorney for healthcare is a legal document naming a healthcare agent - someone who will make medical decisions for the patient when he or she becomes incapacitated.³ All states and Washington, DC have advance directive laws. However, there is significant variability in advance directive enforcement, triggering events and physician immunity from state to state.² Examples of advance directive forms for different states are available at: www.caringinfo.org/... (accessed 3/22/2018).

Physician Orders for Life-Sustaining Treatment (POLST)
Unlike an advance directive, a POLST is a medical order written by a physician instructing other healthcare clinicians/staff/entities about life-sustaining treatment of a seriously ill or extremely frail patient.⁴ The names of similar orders in different states vary, for example, medical orders for life-sustaining treatment (MOLST), physician orders for scope of treatment (POST), etc. The orders cross care settings and should be honored in an emergency that takes place in the community, for example, when an ambulance is transporting an individual who arrests on the way to the hospital.²

Examples of POLST form elements are available at: polst.org/... (accessed 3/22/2018).

Do Not Resuscitate (DNR)/Do Not Intubate (DNI) Orders
DNR/DNI orders are written in a healthcare facility, but do not generally cross care settings or apply to care in the community.²

Palliative Care/Supportive Care
Palliative medicine was recognized by the American Board of Medical Specialties in 2006. It involves a team-based approach (including medicine, nursing, social work and chaplaincy) to alleviating patient suffering through symptom management and promoting quality of life for seriously ill patients by discovering their goals and implementing treatment preferences. Ideally, palliative care is initiated at the time of diagnosis. It is available to all patients regardless of age, diagnosis, disease stage or prognosis, and can be provided concurrently to patients with disease-directed therapy, for example, chemotherapy.^5,6

Hospice Care/End-of-Life Care
Hospice is a specific form of palliative care provided to patients while they are actively dying, particularly during the last six months of life. Hospice care focuses on comfort measures instead of curative measures. It is generally provided in the patient's home or a nursing home.^5,6

Physician Aid-in-Dying (aka, Assisted Suicide, Death with Dignity)
Physician aid-in-dying involves a physician writing a prescription for a lethal dose of medication that the patient can self administer.⁵ Physician aid-in-dying is currently authorized in six states - Oregon, Washington, Vermont, Montana, California and Colorado - and Washington, D.C. In Montana, a court decision provides protection from prosecution to physicians who assist patients in dying.^5,7

Overlooking the DNR Order

Cases further on in this article address complex issues of advance directive interpretation and execution. In the following case, however, there was no ambiguity surrounding the patient's choice to opt out of life-sustaining treatment. The case was filed because no one checked the patient's DNR status before she was resuscitated. The problem for the plaintiffs was proving that being alive was a compensable injury. Consider the clinician, staff and administration strategies that could have increased the chance that this patient's DNR order would have been followed.

Case One¹⁵

Allegation:

The hospital physicians and staff negligently resuscitated a patient with known and well-documented DNR status.

On June 16, an 83-year-old woman suffered a subarachnoid hemorrhage and aneurysm and was transported to the hospital shock trauma unit and then transferred to the neurological unit. Prior to the hospitalization, she had executed an advanced directive and appointed her husband as her healthcare agent. She underwent tracheostomy, and on August 7 a Maryland medical order on life-sustaining treatment form (MOLST) was executed. It indicated no CPR should take place if cardiac and/or pulmonary arrest occurred. Copies of the MOLST were placed in the patient's medical record and distributed to various family members.

On August 13, the patient was transferred to a Post-Acute Specialty Program (PASP) unit, for ongoing airway and ventilation management and potential weaning. The transfer summary referred to the patient's DNR status. After the transfer, multiple notations of the patient's DNR status were made in her chart. In the early morning hours on August 29, a nurse found the patient severely hypoxic and in cardiac arrest. The nurse called a code blue. After 20 minutes of chest compressions, electrical shocks and chemical stimulants to her heart, the patient was resuscitated.

Two months later, she was discharged home on a feeding tube and oxygen. She was incontinent and suffering from bouts of dementia and delirium. She required around-the-clock home healthcare.

The patient's daughter sued the hospital, asserting claims for: assault, negligence, intentional infliction of emotional distress, breach of contract, breach of fiduciary duty and lack of informed consent.

This case illustrates a side to the resuscitation issue that may not receive enough consideration by healthcare team members who strive to save a patient at all costs-the patient's quality of life following the resuscitation. If the nurse had been aware of this patient's code status, which was readily available to her in the patient's file, the code blue would not have been initiated and the lawsuit most likely would have been avoided. Knowledge of a patient's code status should not be considered optional.

Withholding vs. Withdrawing Life-Sustaining Treatment

The attitude of some clinicians, staff and administrators is that patients' lives should be saved at all cost because it is easier to defend a wrongful life claim than it is to defend a wrongful death claim.¹⁷ Seen in that light, the risk management issues seem moot. But this attitude ignores patient self-determination and potentially raises ethical issues such as providing non-beneficial medical treatment and providing treatment that does more harm than good. This attitude can also put an unwarranted burden on healthcare agents on whose shoulders the decision to later withdraw care usually falls. There are legal, ethical and emotional differences between withholding and withdrawing life-sustaining treatment. A recurring theme in wrongful prolongation of life claims is a healthcare agent's emotional distress caused by making a withdrawal of care decision - a decision that he or she was never intended to make, because there was a DNR/DNI order or an advance directive.

The distinction between withholding versus withdrawing treatment was the underlying issue in the following case, which took place in Georgia. Consider how the outcome could have been different if the surgeon had honored the unambiguous and readily available advance directive or called the 91-year-old patient's healthcare agent for consent prior to intubating and ventilating her.

Case Two¹⁸

In November 2009, an 89-year-old woman executed an advance directive. She designated her granddaughter as her healthcare agent. The advance directive specified that the granddaughter be "authorized to make all healthcare decisions for [the grandmother], including decisions to provide, withhold, or withdraw artificial nutrition and hydration, and all other forms of health care to keep [the grandmother] alive."

In the paragraph of the advance directive addressing end-of-life decisions, the grandmother chose the option of not prolonging life, and specifically indicated: "I do not want my life to be prolonged if (1) I have an incurable and irreversible condition that will result in my death within a relatively short time, (2) I become unconscious and, to a reasonable degree of medical certainty, I will not regain consciousness, or (3) the likely risks and burdens of treatment would outweigh the expected benefits."

The advance directive also stated: "My agent shall make healthcare decisions for me in accordance with this power of attorney for healthcare, any instructions I give in this form, and my other wishes to the extent known to my agent. To the extent my wishes are unknown, my agent shall make healthcare decisions for me in accordance with what my agent determines to be in my best interest. In determining my best interest, my agent shall consider my personal values to the extent known to my agent."

The grandmother had additionally told her family members, including her granddaughter, that "she was ready to go when the good Lord called her" and specifically that she did not want to "rely on a machine to live."

On March 3, 2012, fearing her grandmother was suffering from a stroke, the granddaughter brought her to the emergency department (ED). She provided the advance directive to the admission staff and it was placed in the grandmother's medical record. The grandmother was admitted to the hospital with a diagnosis of pneumonia, sepsis and acute renal failure. Because she lacked decision-making capacity, the granddaughter's agency was activated. The granddaughter alerted members of her grandmother's healthcare team to the advance directive and also demanded that they not administer CPR, intubation or mechanical ventilation. She provided her home, work and cellphone number to facilitate contacting her at any time.

On the morning of March 4, a surgeon called the granddaughter to tell her that her grandmother was being moved to the intensive care unit (ICU) and that he wanted to do a CT scan to better assess her condition. The granddaughter consented to the CT scan, but alerted the surgeon to the advance directive and told him that no CPR or heroic measures were to be undertaken. Later that day, he called to ask consent for a right chest thoracentesis. He asked about ventilation, and the granddaughter told him to call her before any decisions about ventilation or intubation were made. On March 5, the surgeon called to obtain consent for a "surgical" thoracentesis. He did not tell the granddaughter that it would involve intubation and ventilation.

On March 7, around 4:00 am, a nurse called the surgeon at home to report the grandmother was in respiratory distress. He ordered intubation and ventilation to prevent her from going into respiratory or cardiac arrest. The nurse reminded the surgeon about the advance directive and suggested calling the granddaughter. The surgeon told the nurse he would call the granddaughter later in the day after the intubation.

On March 7 around 8:00 am, the granddaughter discovered her grandmother intubated and ventilated. She demanded to know, from the physician on duty, why her grandmother was intubated against the advance directive. She was told her grandmother had been in respiratory distress, and that it was done to avoid a respiratory or cardiac arrest. The physician on duty told her that she could have her grandmother taken off the ventilator and extubated, which would cause her to suffocate and die. As this had happened to the granddaughter's father, she could not bring herself to do it. She thereafter consented to various medical procedures. When it became necessary for the grandmother to receive dialysis, she had her grandmother extubated. The grandmother died three days later.

On May 14, the granddaughter filed a lawsuit against the hospital and the surgeon, claiming breach of contract, negligence, battery, intentional infliction of emotional distress and breach of fiduciary duty. Protracted litigation ensued. The defendants filed motions for summary judgment contending the state advance directive statutes broadly immunized healthcare providers for "failure to comply" with the directives of healthcare agents. The denial of the motion was appealed up to the state supreme court, which upheld it, disagreeing with the defendant physicians that the statute provided them with immunity. The case was settled shortly before trial.

The Georgia Supreme Court sent a strong message to clinicians who fail to comply with advance directives in that state: "[W]hen the health care provider makes the patient's health care decisions on his own, without relying in good faith on what the patient's agent directed, the provider must defend his actions without the immunity given in OCGA § 31-32-10 (a)."18 The court's opinion cited the surgeon's deposition testimony, in which he indicated his unwillingness to follow the advance directive: "If the family does not want her on the respirator, well, we can just pull the tube out…if we try to make calls she'd be dead. [W]e can always undo it. But, if the patient dies…that's my ultimate loss. There's no way I can get her back. So when this happened, I really didn't go into any of the code/no code/do not intubate/resuscitate. Save the patient's life first and then we'll do whatever it takes to make the family and that patient whatever, but we can't undo death. So that's what I was thinking."18 Immunity provisions are common in advance directive legislation. They generally grant immunity against criminal, civil, or disciplinary sanctions associated with a physician's decision to withhold or withdraw life-sustaining medical interventions pursuant to advance directives.17 In Georgia, like many other states, the immunity only extends to physicians who make a good faith effort to comply with the advance directive. Almost all state advance directive statutes allow physicians and entities to opt out of compliance based on conscientious or other objections.19 Honesty is a key aspect of end-of-life care. If this physician had an objection in general to following DNR/DNI orders, he most likely could have exercised his right to object, which could have facilitated his replacement on the care team with a physician who was willing to comply.

Changes to DNR Status

In a perfect world, patients' wishes about life-saving/sustaining treatment would be abundantly clear to their families, close friends, medical providers and whoever else becomes responsible for their end-of-life care. In the following case, the patient's father and various members of the patient's healthcare team had differences of opinion about whether the patient wanted to be resuscitated, but it was never discussed among them. Poor documentation further complicated the defense of this claim. Consider how the outcome may have been different if the healthcare team had a system in place to ensure the patient's end-of-life wishes were honored.

Case Three²²

Allegation:

The hospital negligently resuscitated a patient with a DNR order.

The patient was a 40-year-old woman with severe depression, pressure sores, end-stage renal disease, hypertension, type 2 diabetes, bacteremia, chronic airway obstruction and malnutrition. She was a long-term resident of a skilled nursing facility (SNF). Her file at the SNF contained a POLST, which indicated the patient should not be resuscitated if she went into cardiopulmonary arrest, but that she should receive comfort measures and limited interventions, such as artificial nutrition. Her father was her healthcare agent.

On a Monday, the patient was transported via ambulance to the hospital for lower extremity swelling. She was admitted for further evaluation and IV antibiotics were started. The POLST, indicating her code status as DNR was entered in her hospital file. Her DNR status was documented in her file on various occasions during her hospitalization. She was competent until Thursday, when she suffered a cardiac arrest. A code blue was called. Chest compressions, heart-stimulating drugs and a defibrillator resuscitated the patient, who was intubated and put on hypothermia protocol. Her father was called and notified that his daughter was in the ICU, had been resuscitated and had a poor prognosis. When the father asked why his daughter had been resuscitated when she was DNR, he was told she had changed her status to full code at admission. A week later, the father consented to have his daughter removed from the ventilator and she expired. The father filed a lawsuit against the hospital and healthcare team alleging negligent infliction of emotional distress related to the period following the resuscitation.

Competent patients are allowed to change their DNR status. However, in this case, there was no evidence in the patient's medical record indicating she had changed her DNR status. Instead, the POLST was in her file and the physicians caring for her prior to the resuscitation documented she was DNR. Furthermore, the lack of documentation was a violation of hospital policy, which required documentation of any POLST changes. Assuming the patient requested the change, the hospital further complicated the situation when it failed to notify the patient's healthcare agent about the change. He was blindsided by the change, which allegedly took place at admission, giving the hospital sufficient time to enter changes into the medical record and advise the healthcare agent about the change.

Advance Directive "Term of Art"

Patients and their healthcare agents make assumptions that the advance directives they have executed will be interpreted the way they intended. However, advance directives are often written in general terms that do not perfectly describe a specific life-prolonging intervention. Some terms may be well-understood by members of the healthcare team, but prone to misinterpretation by patients and their families. In the following case, a lawsuit was filed over whether "artificial nutrition" included spoon feeding. Consider how the outcome of this case might have been different if the parties had come to an agreement over the meaning of artificial nutrition before the patient lost the ability to feed herself.

Case Four²³

Allegation:

Spoon feeding the patient violated the wishes she expressed in her advance directive.

The patient was diagnosed with early onset Alzheimer's disease at age 56 in 2009. At that time, she executed an advance directive in which she opted out of artificial nutrition and hydration. The patient's husband, her healthcare agent, placed her in a memory care facility at age 60. By age 63, the staff of the memory care facility had started to spoon feed her because she was no longer able to feed herself. Her husband attempted to get the spoon feeding stopped, which he believed violated her advance directive. The memory care facility disagreed, interpreting artificial nutrition as nutrition not supplied by mouth. The husband filed a lawsuit.

The husband's request to have the spoon feeding stopped was denied by a Maryland court, which interpreted artificial nutrition consistent with the nursing facility definition.23 However, this was a lawsuit that could have been avoided with better communication. The nursing facility had a feeding policy based on state law that mandated providing nutrition to residents three times per day.23 Furthermore, eating difficulty is a fairly common issue in late-stage dementia patients.24 The facility could have informed the patient's husband that there was a very good chance the patient would require help eating in the near future and that their policy was to assist with feeding. Had this discussion occurred while the husband was making decisions about whether to place his wife at the facility, he could have changed the advance directive to prohibit spoon feeding at that time; and if the facility was not willing to forgo spoon feeding the patient, he could have chosen a facility that would honor that kind of request.

Getting Everyone on the Same Page

End-of-life decision-making can be traumatic for everyone involved, particularly when the healthcare agent and the healthcare team members have conflicting opinions about how to honor the patient's advance directive. Consider how the healthcare team might have made this healthcare agent's experience more manageable.

Case Five²⁵

Allegation:

Measures contrary to the patient's advance directive were implemented following palliative surgery.

The patient was diagnosed with metastatic colon cancer in late 2007. His oncologist estimated his life expectancy at two years. On May 7, 2008, he was scheduled for a colon resection to remove a tumor in order to provide palliative care and prevent future difficulties with bleeding, obstruction and pain associated with the tumor. The patient had an advance directive in his hospital record. It provided, in pertinent part:

"If I have a terminal condition: I direct that life-sustaining treatment shall be withheld or withdrawn if such treatment would only prolong my process of dying, and if my attending physician and another physician determine that I have an incurable and irreversible condition that even with the administration of life-sustaining treatment will cause my death within six months."

Following surgery, the patient suffered a post-operative anastomotic leak that resulted in sepsis. The patient then consented to a second and third surgery. Following the third surgery, which took place on May 21, 2008, the patient remained ventilated and sedated in the hospital's ICU.

Because the patient's condition was so grave, his family, in consultation with Critical Care Consultant 1, decided to withdraw care on May 26. However, on the morning of May 26, Critical Care Consultant 2 determined the patient's condition was improving. He requested, and the patient's wife consented, to continue care. On May 28, however, the patient's wife sought a second opinion about her husband's prognosis. Critical Care Consultant 3 indicated that although the patient's lab values were improving and he appeared to have survived the sepsis, he was statistically unlikely to fully recover or return to a "normal life" and to do so would require a prolonged recovery.

On May 29, pursuant to the family's request, the patient was removed from life support. He died seven days later.

The patient's family sued the hospital and members of the patient's healthcare team under a variety of legal theories, including medical malpractice, negligence per se, lack of informed consent, intentional and negligent infliction of emotional distress, battery, breach of contract, corporate negligence and wrongful death. They alleged the defendants violated the patient's advance directive by not withdrawing care before May 29.

This case is an example of the difficulty experienced by healthcare agents and physicians when attempting to interpret the wishes of a patient as stated in an advance directive that does not align with the patient's end-of-life circumstances. The healthcare agent was focused on not unnecessarily prolonging the patient's process of dying. She believed the patient should not have remained ventilated and sedated as long as he had. However, the physicians were focused on not violating the activating terms of the advance directive. For example, in his deposition, Critical Care Consultant 2 testified that he did not believe the advance directive was activated because he did not believe the patient's "incurable and irreversible condition" (cancer) would cause his death within six months. Although the patient's agent consented to further treatment, she most likely did not adequately understand the reason for treatment. The patient's surgeon did not believe the advance directive was activated because the advance directive required the patient's attending physician and another physician on the patient's healthcare team to make a determination that the patient would die within six months, and that had not occurred. Like many other lawsuits involving conflict over end-of-life interventions, there does not appear to be a perfect solution in this case. However, the lawsuit might have been avoided if the healthcare team had provided the healthcare agent with a consistent message about the patient's prognosis and advised her of their grounds for continuing life-sustaining treatment in light of the advance directive.

Case Six³⁰

Allegation:

A patient with terminal lung cancer was denied proper pain medication.

An 85-year-old patient was brought to the ED complaining of severe back pain. He reported a one and one-half year history of intractable pain, a long history of smoking and profound recent weight loss. Examination revealed bilateral pleural effusion and multiple compression fractures in his spine. The internist surmised that he had lung cancer which had spread to his bones. For his pain, the internist ordered meperidine and acetaminophen on an as needed basis. According to the internist, the patient never complained to him about his pain. The nurses' notes, however, indicated the patient reported pain scores between seven and nine out of ten even after the medication was administered. The patient's children also testified that the patient's pain was uncontrolled throughout his five-day admission. On his fifth day of hospitalization, when the internist recommended further tests, the patient requested hospice care at home. His pain was ten out of ten at discharge. The internist discharged him with a prescription for Vicodin®, which he could not take because of swallowing dysfunction. A different physician succeeded in managing the patient's pain while he was on hospice care. He died three days after discharge.

The patient's family sued the internist and hospital alleging elder abuse.

At trial, the plaintiff's experts were critical of the internist for his medication choice and for not ordering around-the-clock pain medication. They testified that the internist's assessment of the pain was insufficient, that he did not try to readjust the treatment plan and that he did not follow national pain management guidelines. The defense experts testified that the internist's treatment met the standard of care. In his defense, the internist testified that he believed morphine created too great a risk of respiratory depression. The jury returned a verdict for the plaintiffs.30 In addition to the standard of care issues, the internist's case was hampered by his documentation and communication failures. For example, he failed to document why he chose pain management with meperidine and acetaminophen; he failed to advise the family that he feared morphine would cause respiratory distress; he failed to review the nursing notes, which indicated the patient's pain was not controlled and he failed to consult with a pain management specialist. The hospice nurse also may have prompted the family to file a lawsuit with her criticisms of the internist pain management skills.30 On why she filed a lawsuit, the daughter stated: "I wanted [the internist] to change his ways so other people wouldn't have to go through this."31 Had the healthcare team taken action to ensure that the patient's quality of life was as high as possible during his hospital stay and better communicated with the patient and his family, they might not have felt compelled to file a lawsuit.

Case Seven³³

Allegation:

Advising the patient that she was dying caused her to have a stroke.

An 80-year-old patient presented to her long time FP with significant pedal edema. She had a history of congestive heart failure, coronary artery disease and myocardial infarction with serious aortic stenosis. She was not a candidate for surgical treatment. Her FP prescribed furosemide and called her cardiologist to discuss further treatment options. The cardiologist suggested that the FP have a conversation with the patient about palliative care and potential hospice, as the patient's condition was worsening and there were no longer any curative treatment options. Based on the cardiologist's advice, the FP relayed the information to the patient and recommended a palliative care consult and hospice referral.

Four days after the FP made the recommendations, the patient's son, who was known to him and who had accompanied his mother on various appointments, called him to report that the conversation had been so stressful it caused his mother to have a stroke, which had left her comatose. The patient's son threatened a lawsuit.

Culture may have a large role in how some patients consider pain management, medical decision-making, interest in details about disease process, life-sustaining interventions, willingness to enter hospice care and merely discussing death.11,12 For some patients, such as this one, in whose culture speaking of death and dying was taboo, using a direct approach without family members present can be problematic. The patient's son in this case never followed through with his threat to file a lawsuit, but the threat and poor ending to the relationship with the patient and her family was difficult for the FP.

Case Eight³⁶

Allegation:

The hospital and treating physician misled the patient into believing they would provide an EOLOA prescription.

In May 2016, the patient was diagnosed by her oncologist with stage IV colorectal cancer with metastasis in her liver and lungs. The oncologist informed the patient that the cancer was not curable and treatment would be palliative rather than curative. The patient entered hospice care.

Starting in June 2016, on various occasions the patient allegedly told her social worker, oncologist and palliative care specialist that she intended to use aid-in-dying medications. The patient's desire for aid-in-dying medications was documented in her hospital medical record. A physician treating her during her hospitalization noted that the next steps for the patient were to put her interest in writing and be evaluated by two different physicians and a psychiatrist or psychologist. The physician further noted that the patient would follow up with a "social worker from the oncology office to complete these various requirements." A letter sent to the patient from the hospital on July 18 allegedly stated, "While here we also discussed at length your interest in the new California law called “Compassionate Care" regarding physician assisted dying. We understand that these are not new sentiments for you and support your right to self determination. We have documented your interest in this in our notes and you should follow up with your oncology social worker in 14 days or more as a second benchmark, as the next step in fulfilling the requirements."

The patient was hospitalized again from July 28-August 6. Her physicians and social worker continued to document her interest in EOLOA. Allegedly, she was not informed at any time that her hospital physicians would not prescribe the medications until August 18. The patient and her family thereafter attempted to find another physician who would prescribe the medication. On August 29, a physician who was willing to prescribe the medications was identified and a meeting with him took place on August 31. Because the law requires a 15-day waiting period, plans were made to obtain the medications on September 15. The patient died on September 14.

The patient's daughters filed a lawsuit alleging elder abuse, misrepresentation/fraud and negligent infliction of emotional distress.

Judging from the complaint, this lawsuit is not about the right to obtain the medication. This lawsuit is about feeling misled - having something promised, then denied. Whether the patient would have ultimately obtained and taken the medications or whether the other causes of action will stand up to legal challenge does not dismiss the fact that the patient's daughters were angry enough to file this lawsuit. In their complaint, the patient's family argued that the hospital and healthcare team members had a duty to promptly inform the patient they would not provide the aid-in-dying medications.36 Whether that is true is a matter of contention. However, had the patient been informed, when she initially inquired, that the EOLOA option was not available through her hospital healthcare team, this lawsuit would most likely have been avoided, as the right to opt out is clearly stated in the legislation.35 The misrepresentation issues arise from what appears to be a lack of communication between hospital administrators and the clinicians and staff. For example, the hospital website indicated that it would participate in EOLOA. The palliative care/symptoms management department handouts indicated they would participate in EOLOA. The patient’s medical records indicated that her healthcare team supported her aid-in-dying request up to the point that she was advised it would not be available. This case raises different issues for the different parties involved in aid-in-dying fulfillment. Hospital administrators and leadership must ensure clear messaging and direction in order for the healthcare team to provide the patient with correct information. Physicians in states that have passed aid-in-dying legislation, on the other hand, will have to decide whether to opt in or out, and if they decide to opt out, to determine how to ensure patients are informed as soon as possible.

Communication among members of the patient's healthcare team and with the patient, agent and family is the key to end-of-life healthcare risk management. Clinicians play an essential role in navigating patients through the final stage of life. Because of their training, clinicians are in an excellent position to understand the risks, benefits and alternatives to life-sustaining treatments. They are also in the best position to make appropriate recommendations about end-of-life treatment goals. But it can be very hard and the window of opportunity can be too small for procrastination. There can be no ultimate triumph over death, even if that is what the patient and/or clinician wishes for. It is up to clinicians, however, to ensure patients understand the reality of their disease and the curative potential of treatments being offered. Ambiguity surrounding these issues sets the stage for family member frustration and anger with the healthcare team when the truth is revealed.^2,9

Clinicians must also recognize when fear of litigation, personal value judgments or disorganization are obstructing implementation of patient end-of-life decisions. Patients have a right to forgo life-sustaining treatment. Patients and their families rightly expect advance directives and physician orders regarding life-sustaining treatment to be followed. Therefore, clinicians, staff and healthcare entities must coordinate to ensure those wishes are understood and fulfilled.