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Lawsuit fears on care of dying misplaced

Wednesday, November 15, 2000

By Byron Spice, Science Editor, Post-Gazette

Fears of lawsuits may make doctors hesitant to withdraw treatment from dying patients or to use death-hastening levels of pain medication to relieve suffering, but University of Pittsburgh law professor Alan Meisel says those fears are misplaced.

The reality is that doctors rarely are sued over end-of-life treatment, said Meisel, director of Pitt's Center for Bioethics and Health Law. In the last quarter century, only about a dozen doctors have been sued for damages. And in those cases, they were more likely to be sued for being too aggressive in extending life, rather than the opposite.

"The risks of sanctions are exceedingly small," Meisel said. But the fear of being sued persists and that affects end-of-life care.

One of the most notable effects, he said, may be the systematic undertreatment of pain. Doctors often hesitate to prescribe the high dosages of narcotics necessary to relieve pain in a dying patient because those dosages also will hasten death. But a doctor need not fear being sued in such a case, as long as the medications are prescribed for relief of pain.

In an article in today's issue of the Journal of the American Medical Association, Meisel and Lois Snyder, a lawyer with the American College of Physicians-American Society of Internal Medicine, and Dr. Timothy Quill of Rochester, N.Y., addressed seven legal myths regarding end-of-life care:

Evidence of a patient's wishes is necessary before withdrawing life-sustaining treatment. A family member or other surrogate can relate the patient's wish or, in some states, even what the patient would probably wish.

Withholding food and water is illegal. Fluids and nutrition are like any other medical treatment and can be withheld according to the patient's wish or the wishes stated by the patient's surrogate.

Doctors must consult a hospital's risk management office before halting life-sustaining treatment. Hospital policy may require this consultation, but it is not legally or ethically necessary.

Living wills and other advanced directives must be in writing, must be in an official form, can't be transferred between states and, once signed, govern all treatment decisions. Advanced directives are often the best source of information about an incapacitated patient's wishes and thus can guide treatment decisions, even if they do not comply with all legal formalities. Oral directives are legally valid; conversations with a patient before or during a final illness can be more useful in determining the patient's wishes than a living will.

Doctors can be criminally prosecuted if high doses of pain medication cause a patient's death. Doctors cannot be prosecuted as long as they administer medication with the intent of relieving pain. In Pennsylvania, guidelines issued by the state Board of Medicine specifically allow doctors to treat pain adequately without concern about addiction or hastening death.

Even if a suffering patient asks for a quick death, no legal option is available. Physician-assisted suicide remains illegal in most states, but the U.S. Supreme Court has indicated that patients facing imminent death may give informed consent to "terminal sedation" -- sedation to unconsciousness or to a level that ensures escape from suffering. Meisel and his colleagues acknowledge that terminal sedation's overall legality is still uncertain, however.

The Supreme Court has outlawed physician-assisted suicide. It is legal in Oregon and other states are free to legalize or prohibit it.

The relative lack of legal barriers to end-of-life treatment is good news, Meisel concluded. Society hasn't reached a consensus on all these issues, he explained, "but we're certainly moving in that direction."

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