Everything Old Is New Again, Attorneys Say


An old cause of action for medical battery is reasserting itself in a very 21st century way, as courts are beginning to allow people to sue doctors for wrongful prolongation of life. That is, for failing to honor a patient’s advance directive to withhold life-saving treatment.

The case of the moment comes from New Jersey, where a trial court last fall refused to let a health-care provider escape liability for resuscitating a woman who had an advance directive explicitly saying she didn’t want to be revived if she suffered cardiac arrest. The provider later settled the case.

A lawsuit against a doctor who saves a life may seem odd, but some people would rather not be saved than survive in a very fragile condition or one that robs them of their independence. And that’s the whole purpose of an advance directive.

It’s also widely accepted that people have a right to refuse medical treatment. A provider who treats a patient without his or her consent has, for a long time, potentially been liable for medical battery, two law professors who study end-of-life issues told me.

They expect to see more wrongful prolongation of life cases being filed around the country, as more attorneys learn about the New Jersey case. And, while they have some qualms about plaintiffs’ ability to prove damages, cases like one in Georgia that ended in a $1 million settlement suggest these lawsuits are worth pursuing, they said.

Read my story here.

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