Sunday, November 4, 2018
Fredrick E. Vars & Alberto Lopez recently published an Article entitled, Wrongful Living, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.
Executing an advance directive that specifies a patient’s wishes regarding end-of-life medical care is an exercise of self-determination – a conscious choice about the degree and type of medical intervention one wishes to receive under end-of-life circumstances. Empirical studies, however, consistently report that healthcare professionals fail to comply with advance directives; violations of a patient’s interest in self-determination are alarmingly common. From a practical perspective, the conduct of either patients or healthcare professionals may make an advance directive unavailable, which results in noncompliance. Legally, courts have historically rejected claims for “wrongful living” associated with the prolongation of life that results from unwanted medical intervention. As a result, healthcare professionals fear the liability threatened by a wrongful death claim more than the legal exposure risked by keeping an individual alive despite a contrary mandate in an advance directive.
In response to practical concerns regarding availability, this paper proposes the creation of a nationwide registry of advance directives and argues that sanctions for violations of professional responsibility as well as the risk of liability for legal malpractice encourage utilization of the proposed registry. To realign the skewed legal incentives, this paper argues that the compensable harms associated with battery and negligence claims filed in lieu of “wrongful living” claims should include the loss of enjoyment of life. Because damages for loss of enjoyment of life are rarely mentioned by courts or scholars in the context of violating advance directives, this paper describes loss of enjoyment of life damages and argues that such damages should be compensable in the same manner that tort law compensates for similar injuries that lack an objective market value. In combination, the practical and legal proposals incentivize compliance with an advance directive and thereby expand the protection afforded a patient’s interest in self-determination.