Document Type

Article

Publication Date

2013

Publication Information

9 Journal of Health & Biomedical Law 213 (2013)

Abstract

Both medical and legal commentators contend that there is little legal risk for administering life-sustaining treatment without consent. In this Article, I argue that this perception is inaccurate. First, it is based on an outdated data set, primarily damages cases from the 1990s. More recent plaintiffs have been comparatively more successful in establishing civil liability. Second, the published assessments focus on too-limited data set. Even if the reviewed cases were not outdated, a focus limited to civil liability would still be too narrow. Legal sanctions have also included licensure discipline and other administrative sanctions. In short, the legal risks of providing unwanted life-sustaining treatment are not as rare, meager, and inconsequential as often depicted. In fact, sanctions for administering unwanted treatment are significant and growing.

The right to refuse life-sustaining treatment has been established for decades. But, as with many principles in bioethics, like the related doctrine of informed consent, there remains a wide chasm between legal and ethical principles, on the one hand, and the reality of clinical practice, on the other. In contrast to other commentators, I have aimed to establish that the prospect for enforcement and protection of patient rights is not as dismal as commentators often depict. In fact, both private litigants and government regulators have been imposing sanctions that are increasingly severe and frequent.

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