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Legal Commentary on “Defending Patient Autonomy: The Case of the Challenging Spouse”

For hospital counsel, this case will present a dilemma between respecting the patient’s legal rights and protecting the institution from frivolous litigation. Most hospital attorneys work closely with risk management, and they are very litigation averse. The purpose of risk management is not to win lawsuits but to avoid them. It can be challenging to do the legally right thing, particularly if the right thing may result in an expensive lawsuit. Litigation is very public and confidence in a hospital may be adversely affected by publicity regarding a lawsuit that alleges a hospital ignored a spouse’s request to keep a patient alive (“They didn’t lift a finger while my poor husband just died”). Allegations in lawsuits, and media reports of these allegations, rarely reflect the reality of the situation. They make good hospitals look bad. It is well settled in the law that a competent person has the right to choose or refuse medical treatment, including all decisions relevant to her or his health care. When patients are at the end of their lives, they are vulnerable to coercion. It is the responsibility of health care providers and health care institutions to assure that the decisions of competent patients are respected, in the face of any undue influence that may be used by distraught family members. The law seemingly provides assurance that rights will be respected, but rights are not self-enforcing. No right is absolute, and there are often contrary forces that