Hospitals Sued Over Saving Patients' Lives

or do not resuscitate order in his file. Joining me is Daddy as Pope, a professor at the Mitchell Hamlin's School of Law. So tell us about these wrongful prolongation of life lawsuits and when they started to be recognized in the courts. Sure, so those sorts of lawsuits started

decades ago. Right. We first started having advanced directives in the nineteen seventies, and then after people started completing advanced right because it didn't take too long for cases to arise where doctors and hospitals did not honor or follow the instructions in those advanced directives. But the cases that were brought during the nineteen eighties and nines were almost uniformly unsuccessful because the courts were unwilling to recognize that

there had actually been any harm. Right, the doctors saved your life. They were suscitated you when your heart stopped, or they intibated you when you couldn't breathe, and therefore it was difficult for the courts to grapple with the concept that the saving of your life is in fact a compensible injury. Right, it's a harm. But more recently, and this is really only over the past let's say five years, you now have a string of lawsuits that

have been successful. In the Montana case that was cited in the Boston Globe story this week, there's a four dollar verdict. There was a million dollar settlement in southern California, a million dollar settlement in Georgia, and other cases. And so there's really been a turn both at the trial levels where verdicts are coming out at the appellate levels, where the appellate courts are saying, yes, this is a

compensible legal injury. For decades, we've been telling people, and when I say we, I mean government agencies nonprofits have been encouraging people to do advanced care planning right, they'd say, Hey, June, hey Thaddeus, do you have an advanced directive? Have you talked with your family about your wishes so you can make sure that if you lose capacity, you can get the treatment that you want and avoid the treatment that

you don't want. And so since we've been making that promise so prominently, so repeatedly, for so long, that now when that promise is breached, it does I think, seeing to the courts more logical, more palatable, that that sort of breach of a promise should be compensable. In the Montanic case, Roddy Knoful had a d n R order in his file, a band on his wrist indicating he didn't want to be resuscitated, and yet the staff resuscitated him twice. What does that speak to? Is it just

the hospital staff ignoring the wishes of the patient. That's a great question. So what we see, I think, are two different types of cases. In one type of case, the clinicians actually make a deliberate and intentional decision. They don't agree with the patient's choice, or they don't agree with the family's choice, and therefore they don't follow it. In the Montana case, it's not clear that that's what happened.

It appears that it's more a case of negligence, where either his wishes weren't recorded very carefully or there was negligence in how the staff actually checked or ascertained what his wishes were. And since it was in his chart and he had the wrist band and they had just talked to his wife, they had at least three separate sources of information to know that he didn't want to be resuscitated, and so therefore to proceed in the face of all that contrary information, it seems at least negligent.

Maybe it's beyond negligent, maybe at the higher level, maybe it's reckless disregard. Maybe it was intentional. I don't know, but it was at least negligence, and the jury did find negligence in that case. In the other cases you mentioned,

was it also negligence? Were the circumstances similar. So there's the case, and this went up to the Georgia Supre Court, the Alsea versus doctor's hospital case, and in that case it seemed that it was more intentional, so that the doctor in that case I knew that the patient had an advanced directive that she did not want to be intubated.

He knew that the agent the healthcare agents appointed under the Advanced Directive had also instructed the same, but said, you know what, let's go ahead and intibate her anyway.

So in that case, it appears that it wasn't a negligent failure to record the patient's preferences or neg and failure to check the record, but it was an intentional decision to do something different thinking this was in the record, thinking well, we can always undo it, right, if we intubate somebody and we put them on mechemical relation, we can always undo that later. So we'll just air on the side of doing that, and if we're wrong, we

can undo it. And what the court said in that case was, yeah, but you still did something that you knew was contrary to the patient's preferences. And so even though it was for a short duration of time, as it was in Montana, right again, it was only a short duration of time, it's still a compensable injury. So some of these cases are just mere negligence, failure to check the chart, failure to check the risk band, failure to communicate from one clinician to another, commission, but some

of do appear to be intentional. Now it seems as if in the cases we've been talking about, patients have done what they're supposed to do. They filled out the advanced directive. So what can be done to ensure that hospitals follow the wishes of the patients. It's worth noting only around thirty of us actually have done advanced care planning and have completed advanced directives. That number is actually going way up because of COVID nineteen, but still most

of us haven't done that. But for those who have done advanced directors, how do we make sure that they actually get followed? I think the first thing is always a point an agent. Advanced directives in almost every state have two parts. There's the instructional part, where you can tell us what treatments you want and what treatments you don't want. But then there's also the appointment of agent parts to be called a durable power of attorney for healthcare.

That's probably the more important part, because then you have an actual person who can show up and be your advocate and make sure that your wishes get followed. And you want to appoint somebody who can actually be a good advocate, somebody who you trust, somebody who knows your values and preferences, and somebody who will be available at the relevant time, and you probably want to back up in case your primary agents is not available. So that's

probably the most important things. And then the second thing I think is that these cases may already be accomplishing. This is there may be more training in healthcare systems to make sure that we are carefully documenting and communicating patient preferences about their end of life care. What is it do not resuscitate law? So do not this is

another unfortunate problem. Do not resuscitate or d n R order um really only pertains to the situation where the patient's heart, uh they stop breeding or their heart or they are they are they they don't have a pulse, right, So it just means that you're gonna it means that you're not going to do CPR to try to restore the patients a circulation or breathing. So that's it, right, That d n R order means we're not going to

do CPR. So it's it's it's a it's in order to not do one specific type of life sustained treatment on Fortunately, and there's a lot of studies on this, those those orders are overinterpreted, and so we've done many surveys of physicians and also nurses m you know, giving them hypothetical scenarios and asking them what they should do.

And unfortunately, many times a clinician seeing that the patient has a d n R order and remember it only means that you're not supposed to be CPR, but that patient would still receive all other sorts of licenstating treatment UM, but they would interpret it to mean that the patient is comfort measures own right, they're not going to get

any curative directed treatment or any other life treatment. So they they overinterpret the meaning of a d n R order and so that that is definitely a patient safety risk that also needs to be work done. What is the exact law that we're talking about, So there's a lot of different laws. There's most states now have a pulse law. So in New York it's called a most

mL LST Medical Orders for Life Sustaining Treatment UM. This this and so there's a separate statue in New York for this, in a separate statute in many states or most states for this UM. And the idea is what it is. It is an advanced directive, which is the sort of document that was an issue in the Georgia case. In some of these other cases, it is just um, uh, your wishes, right, it's just a recording of your wishes.

And the thought maybe twenty years ago was that if we we can um better assure that your wishers are followed, if we convert the advanced directive into a medical order SECT and the idea and that's what that's what a pulse is Physician orders for lifustating treatment UM. And if it's a medical order set, it's a it's a uniform form, it's a simpler form, it's a one page form usually UM.

And it's since it's since it already is a set of medical orders, it's immediately actionable, right, So we don't need to look at your advanced directive, figure out what you want, and then right orders to implement your wishes. The POLST already is a set of medical orders, so

it's immediately actionable UM. And so that's and and in fact, the evidence does show that if you're seriously ill individual, it would be a really good idea to not only have an advanced directive, but to also have a pulse because that better assures that you that your wishes get followed, more than just having an advanced directive by itself. So when you asked me a second ago, what are the things that patients can do to better assure that their

end of life wishes get respected? For at least the seriously ill patient or seriously ill individuals, they should have not only an advancedructive but also appolsed. So this discussion seems to highlight the fact that this is a very confusing area of the law that I think most people don't know about. So should doctors be paid for having sessions with patients to explain this to them? Yes, a few.

So most patients, of course that are UM older, their primary source of insurance is Medicare, And a few years ago UM Medicare did change the physician schedule to allow payment for advanced care planning discussions ah and and the thought was that would be one way to incentivize doctor is to sit down and talk with patients UM about their wishes and ideally to in fact completely advanced directive and also for the relevant patients to complete a pulse UM.

So we've had that those two new codes, those two new CPT codes to pay for these sorts of discussions now for five years UM. Unfortunately, the evidence shows that it hasn't um produced the sort of the incentive hasn't been strong enough to incentivize the discussions I think in the way that was hoped for, right, So we continue to see legislation UH designed to provide an even stronger incentive,

and the bills have done all sorts of things. Sometimes the idea where we pay not only the doctors, will pay the beneficiary. Right, so if you completely the advanced directive, will pay you seventy five m. And the reason to do that, by the way, is because we know that overwhelmingly, if you ask people what they want at the end of life, they would prefer to forego aggressive curative directed measures at the end of life and would prefer us to die at home on hospice. Unfortunately, that's not what

happens UM. And so therefore, if we actually provided the care that Americans want, we probably would save a lot of money. The Medicare would save a lot of money. And therefore, by if that incentive work, and I don't know if it would, but if we pay people seventy five to complete in advance directive, and they actually completed an advanced directive and they can complete it any way that they want. Right. All all ask you people to do is tell us what you want, tell us what

you don't want. We're not it's your choice. But more people in fact would choose, for example, if they were permanently unconscious, to say, I wouldn't want to live like that, right, you don't need to continue to give me mechanical a relation and artificial hydration if I'm permanently unconscious. So most people would decline h a lot of care at the end of life that they would otherwise be getting if they're getting complete and it reinstructive. How important do you

think it is that these lawsuits are being recognized. Well, I think it's very important that these cases. First of all, that these cases were brought. Secondly, that they were resolved in the way that they were resolved, and third that the Boston Globe and Kaiser Health News and you are talking about them because um, I think you the message needs to be sent that it's worth your time to

completely reinstructive. I think because if you think, like oh, I hear that that hospitals and doctors don't always follow them. Sometimes they ignore them, sometimes they lose them. Then then of course the natural responses why bother? Right, why bother? The completely the instructive because it's probably not going to get followed anyway, right, so that it gives people a sense of utility. So I think it's important to send the message, No, they have a legal duty to follow them,

um and if they don't, they will be punished. Um. And so it is worth your time to complete an advancedructive. Thanks for being on the Bloomberg Law Show. That's Daddy is Pope, a professor the Mitchell Hamlin's School of Law. The thirteenth Amendment is often described as the amendment that abolished slavery in this country, but there is a loophole

that permits slavery as punishment for a crime. It's this loophole that more than a dozen human rights and social justice organizations want to get rid of, and last month, Democratic members of the House and Senate introduced a joint resolution aimed at striking that language from the Constitution to any means. Michelle Goodwin, a constitutional law professor at the

University of California, Irvine. For those who don't know, tell us about the thirteenth Amendment, all parts of the thirteenth Amendment. So the thirteenth Amendment was originally proposed in order to end slavery entirely in the United States. This is after the Civil War has ended, the Emancipation Proclamation, which was a wartime measure, was coming to an end. Many people presumed that the Emancipation Proclamation was what ended slavery. It wasn't.

What Lincoln said is that if you join the Union, you may keep your slaves, but if you decide that you will not join the Union, then your slaves will be freed as of ex date and time. And after the Civil War was over, um, there were states like Kentucky which had agreed to join the Union um, but also got to keep their slaves. And so the thirteenth Amendment was to do away with that altogether. But there

were Southerners, Southern senators, who argued for something different. They wanted an amendment, and in fact it was not only the ending of slavery. There were some senators that wanted something even more aggressive that said that all people are created equal, that spoke to human rights basically based on what was coming out of France. But the pushback was

twofold in Congress amongst senators. One there were senators that said, well, equality for all would means that women get to be equal and our wives get to presume that they're equal to their husbands. That can't fly. That could have just simply been a ruise, you know, just because they didn't want blacks to be equal to white that they taught them this would make women equal, but even more sinister and more strategic. And what we live with today is

the punishment clause. There were Southern senators who were slaveholding and came from slaveholding families. They said, well, what we should actually have is a punishment clause in this which says that you're free from slavery except if you have been convicted of a crime. It's a very short statement. It's nothing lengthy, it's nothing that's filled with paragraphs. But it's just that that you remain in slave if you've

been convicted of a crime. And what's important is that every constitutional amendment must be ratified, and that means then that these senators went back to their states and then the amendment goes state to state for ratification. Well, what the Southerners did was to fill up before the amendment came to their states and was signed off by their local legislatures. They filled their local state books with all

sorts of crime, so loitering crimes. In some states, it was a crime if you were black and you sold rights. Crime if you're black and you sold weak, crime, if you were black and you stayed in town more than x number of days. Crime if you were black and a random white person could say your house looks unkimpt um, all manner of things that were just random and ridiculous that clearly because they did not apply to white were intended to bring black people free black people back into

a condition of slavery. So what happened as a result of the ratification of the thirteenth Amendment? So what's the ratification then of the thirteenth Amendment. This meant that what the punishment clause that in the South they could get to business by creating all sorts of crimes and punishing black people for these crimes, and that would bring black

people back into slavery. And the result was that plantations actually grew in size after they were larger in some states like Louisiana, after slavery then before slavery, because now there was a whole different enterprise, and an enterprise that was corrupt in many ways. Um in Alabama, it was so bad that there were state legislators that investigated wardens and police chiefs because they were skimming money off of

the top. There were in these states you could convict lease, which meant that if someone's convicted of a client to black kids standing on a corner, much of like the kinds of things that we see today, but then you know that's loitering, and that loitering could lead to twenty or thirty years of incarceration. Clearly, this is about slavery, and the state could argue in these instances that well, as long as they can pay the fine, they don't

have to worry about convictions. But it's important to know that at those times, these fines were fifty dollars seventy five hundred dollars hundred fifty dollars. What white person in eight sixty five could afford to pay a fine like that, let alone some black person who has just been released from the conditions of slavery, who could afford a hunt to pay a hundred dollar fine Because he or she

stood on a corner with two other people talking. Some people might say, well, they're not using that provision anymore, are they, And they are so. The punishment clause has never been repealed, and the punishment clause led to pernicious action. UM. The restoration of slavery chain gangs, all of these guys of things that look terrible and old people, you know, and white black stripes on the side of roads hitting rocks. It still continues and persists today. It's never been repealed

from the United States Constitution. And even more so than states adopted it. She had states that had decided that they would not be slave states or that they would get rid of slavery in their states. Now the federal government has placed it in the Constitution, and so slavery can thrive in their particular states. In California, the people who put out wildfires, people who are incarcerated, incarcerated men,

incarcerated women, people have died in those conditions. The people who have been making masks in prisons in California have been women in prison. Do they get the masks? You know? In New York, the people who have been making hand sanitizer behind bars, UM also these people who have been convicted and this is their punishment for a crime. And what it is is it's an added layer. Because if you've been convicted of a crime, let say, now you

stole somebody's purse, your punishment is actually that. Well, now you are either on probation or or parole, or you've been sentenced uh to jail, and you've been taken away from your family. But this is where the state adds onto it. Not only have you been taken away from society, not only do you have this mark on yourself that you were convicted for having stolen that purse, but now in addition to that, will make you do this labor for free. Um not pay you anything, but charge you

as if you were at a luxury hotel. And many people don't understand or see that prison is not free. It's not as if people are just getting um free meals and and free all of these things. In many states they make you pay for exactly what you have been confined to. Your toothpaste is and free. You have to pay in commissary. Your telephone calls to your family not only are they not free, but you're going to pay more than anybody else in America for that phone call.

And yet at the same time, the state will put you to work. In some instances you might get paid, but get this, you may be paid only one cent per hour, maybe it will be ten cents per hour. And what you're doing are things that are intended to be a punishment. Now, let's make clear. In some states it may be that people want to opt in UM

so that they can get some training and skills. But here's another per initious aspect events and and that is the following, which is that when these individuals get out, they have the mark of being incarcerated on them. We punish people by having them mark the box whether they've been incarcerated. And when you mark the box, for many industries, that means that you cannot be gainfully employed afterwards. It's

a dark mark of X. Do not hire this person. So, even under the understanding that this helps you when you get out, it turns out the work hasn't been done privately or publicly to help people in that regard. And let's be clear, we're talking about fortune hundred companies. They're using prison labor, but not making a pathway for these individuals after incarcerations. To work in their companies. So tell us about UM. Senator Murkley's resolution. What he's proposing. So

tell us about Senator Murkley's resolution. So what he's proposing is to do away entirely with this punishment clause. Let's remove this out of the vestiges of our history and the United States. We know it comes from UM spoiled fruit in our country. It comes from a place UM that was a lott in place in our country and continues to produce than spoiled fruit. And so he says, well, let's just get rid of the punishment clause and from there we can build a new UM. And that's a

bright and fresh idea. There is a perfect opportunity in the wake of this to think in aggressive ways about mass incarceration and prison reform. And this is a terrific opportunity for us to do this, not only because the United States and carcerate more people than any other country in the world. We have five percent of the world's population and yet of the world's incarcerated time relations and

it's not just men, it's women too. The United States incarceer rates more women than any other country in the world, and the majority of these women happen to be mothers, and the studies that have been produced by sociologists and others are really just stunning children of incarcerated parents. They're worse than children who have experienced a parent death or diverse divorce. And so these the way in which we

mask incarcerate. The harms that results from this harm not only the individuals who happen to be incarcerated, but also lasting, lasting impacts on their children and on their communities. And other studies have shown, including by the federal government and organizations that are on the left and the right, that

incarceration sales America. The way in which we mass incarcerate simply does not produce the results um that we wanted, that we need for our society, and it costs us a lot economically, but it also costs us another way. Would it require a constitutional amendment? Well, so this is a very good question. Ideally there would be a constitutional amendment to get slavery out of our constitution. And because this is in our constitution, then legislation alone, in my opinion,

is not sufficient. Um. Legislation could go a long way. There are already states that are doing this, that are actually adopting those constitutional amendments, because for states that follows the federal guidance, one could say in this in terms of what Congress did in eighteen sixty five, and then states followed um suits, there are states like Colorado that through referendum have now removed the punishment clause from their state constitution. Very recently U Taught and the brass that

did the same. And so we can look to the models of those three states um and do this as well. So it could be done by federal constitutional amendment, or it could also be done by states taking this up um. In some ways, you can see the state action as similar to marriage equality, where the states that Scott busy with doing that before the Supreme Court ruled on the matter. But either way, this is an urgent issue for our time. Let's just suppose that a constitutional amendment was passed and

that language was taken out. Would it still be effective in the twenty states that still have that language in their constitutions in other words, but they also have to take it out in order for this really to have a nationwide effect. That's a great question. So if it is taken out of the constitution, because Congress has removed it.

Congressional laws frump states law. So that is why, in fact we have the federalist system as we have, which is that that which is ruled upon by Congress and that which is made into our United States Constitution serves as the platform for the country. And at that point any any language that continues in the States Constitution would essentially be null and void because of the action taken by the federal government and what is in the federal Constitution.

One might be similarly UM. The very slow actions to repeal other either Jim Crow era or slavery era laws UM that existed in Southern constitutions or in Southern legislation UM all null en void after congressional action or constitutional action UM, but nevertheless sometimes slow for removal because of symbolic action in the in the Southern States to preserve UM do in some ways at least symbolically preserve the

status of separate but equals. Does it seem to you as if this part of the Thirteenth Amendment and the effects are something that most people in the country aren't aware of. Most people are unaware of this legacy and how it has a significant role in how we police

and understand policing incarceration today. So if we were take to take a step back and how this so cleverly joined together right in, one must understand that the Southern slave holding senators understood what they were doing by saying, let's flip this into the freedom clause. So we're going we're going to put an amendment together for the Constitution, but we're going to include this. This was not by happenstance. Um, this not by mistake. This was actually shrewd, very clever,

intentional action on behalf of Southern legislators. And most Americans have no idea about it. Many law professors don't. Many law professors teach the thirteenth Amendment only the first part of it, that it abolished the slavery, not paying any

attention to what came next. But if you study anthropology as I do, sociology as I do, then you see all of what came after that, which was the reproduction, the reification of slavery in those states and the permissibility of it in other states that had abolished slavery or had never had it. And so most people do not know about it, but it flows from there. This is

what we get with Jim Crow as well. If we were to think about slavery and just take one quick moment with that, the original police were slave patrol police. The very badges on which police is where today is based on um Baptists from the seventeen and eighteen hundreds. They look exactly the same. So when we think about policing, when we think about max and corceervation, when we think about punishment in this nation, it is racially connected, it

is placed connected. And so when we fail to pay attention to the origins of the Thirteenth Amen that we miss an important part of our American history that helps us to explain and understand why incarceration has turned out to be the way that it is and how different it happens to be um than in some of the nations that we call our peer nations. Here in the United States has been decidedly different because it's been racialized

in a very different way, and that has continued. When we think about the Thirteenth Amendment and removing this clause, that is when we actually get closer to this idea about racial justice in America. Thanks for being on the show. That's Professor Michelle Goodwin of the University of California, Irvine. And that's it for the edition of the Bloomberg Law Show. I'm June Grosso. Thanks so much for listening. Please tune into the show every weeknight at ten pm Eastern right

here on Bloomberg Radio. And that's it for the sedition of the Bloomberg Lawn Podcast. I'm June Grosso. Thanks so much for listening. And remember you can always get the latest legal news on our Bloomberg Lawn Podcast. You can find them on Apple Podcasts, Spotify, and wherever you get your favorite podcasts. And please listen to The Bloomberg Lawn Show every weeknight at ten pm Eastern on Bloomberg Radio.