Family Allowed to Maintain Action for Pain and Suffering Where Decedent’s Advance Directives Were Ignored. (N.Y. App.)

Family Allowed to Maintain Action for Pain and Suffering Where Decedent’s Advance Directives Were Ignored. (N.Y. App.)
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Gerald Greenberg had done all of his planning. He had a health care proxy and a living will. His family knew his wishes and the living will clearly stated that he wanted comfort care measures only. In addition, when Gerald was suffering from advanced Alzheimer’s disease, he was hospitalized with sepsis. His son, as his health care agent, signed a Medical Order for Life Sustaining Treatment that also provided for comfort measures only. The first physician noted all the directives in the chart and verbally confirmed them with the family, specifically discussing and noting the order for no intravenous antibiotics. When the attending physician evaluated Gerald, he also noted the orders in the file. Nevertheless, he ordered a full battery of tests and intravenous antibiotics. An expert retained by the family gave the opinion that, without the intervention that was ordered, Gerald would have passed within a few days. With the treatments ordered by the hospital, he lived for 30 days. The family filed a medical malpractice action, alleging that the physician and hospitals blatant disregard for Gerald’s wishes led to a month of pain and suffering. The defendants sought to dismiss the cause of action as a claim for “wrongful life,” which is not a viable cause of action under New York law. The trial court agreed with the defendants and dismissed the complaint. On appeal, the appellate court overruled the trial court, emphasizing the pain and suffering claims, which are allowed as grounds for a medical malpractice claim. Read the court opinion here.