Wright v. Johns Hopkins Health Systems Corp.

RODOWSKY, Judge. In this action the estate and parents of an unmarried decedent sue a number of health care providers on the ground that the defendants wrongfully prolonged the decedent’s life by resuscitating him from cardiac arrest, allegedly contrary to the instructions in his advance directive and to his expressed intent. The Circuit Court for Baltimore City granted the defendants’ motion for summary judgment. For the reasons set forth below, we shall affirm.

The petitioners, plaintiffs below, are Jeanette Wright, individually and as personal representative of the Estate of Robert Lee Wright, Jr. (Wright), and Robert Lee Wright, Sr., individually. The respondents, defendants below, are the Johns Hopkins Health Systems Corporation, the Johns Hopkins Hospital, and the Johns Hopkins University (collectively, Johns Hopkins), and four physicians, individually and as agents of Johns Hopkins, John Bellan, M.D., Larry Buxbaum, M.D., James Miller, M.D., and John Bartlett, M.D. (collectively, the defendant physicians). The complaint alleges breaches of duty under statutory and common law which we shall review before presenting the facts of this case.

I. The Common Law and the Health Care Decisions Act In Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 , 110 S.Ct. 2841 , 111 L.Ed.2d 224 (1990), the United States Supreme Court emphasized that a liberty interest under the Fourteenth Amendment gives rise to a constitutionally protected right to refuse life-sustaining medical proce ⁵⁷² dures. Id. at 281 , 110 S.Ct. at 2853 , 111 L.Ed.2d at 243 (“It cannot be disputed that the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment.”). See Mack v. Mack, 329 Md. 188, 211 , 618 A.2d 744, 755-56 (1993) (“Although the United States Supreme Court’s decision in Cruzan made no holding on the subject, all of the justices, save Justice Scalia, either flatly stated or strongly implied that a liberty interest under the Fourteenth Amendment gives rise to a constitutionally protected right to refuse life saving hydration and nutrition.”) (citation omitted). Under Maryland common law, a competent adult has the right to refuse medical treatment and to withdraw consent to medical treatment once begun.

Mack, 329 Md. at 210-11 , 618 A.2d at 755-56 . The right exists even though an individual is unable to exercise that right for himself. Id. at 211 , 618 A.2d at 756 . This right is a corollary to the common law doctrine of informed consent, which “ ‘follows logically from the universally recognized rule that a physician, treating a mentally competent adult under non-emergency circumstances, cannot properly undertake to perform surgery or administer other therapy without the prior consent of his patient.

The fountainhead of the doctrine ... is the patient’s right to exercise control over his own body, ... by deciding for himself whether or not to submit to the particular therapy.’ ” Id. at 210 , 618 A.2d at 755 (quoting Sard v. Hardy, 281 Md. 432, 438-39 , 379 A.2d 1014, 1019 (1977)) (citation omitted). This right is not absolute, but is subject to at least four countervailing State interests: “ ‘(1) the preservation of life; (2) the protection of interests of innocent third parties; (3) the prevention of suicide; and (4) the maintenance of the ethical integrity of the medical profession.’ ” Id. at 210 n. 7, 618 A.2d at 755 n. 7 (quoting Brophy v. New England Sinai Hosp., Inc., 398 Mass. 417, 432 , 497 N.E.2d 626, 634 (1986)). ⁵⁷³ Additionally, where another is speaking on behalf of an incapacitated individual, it is that person’s burden to prove, by clear and convincing evidence, the critical facts demonstrating that the incapacitated individual’s judgment is, or would be, that life-sustaining procedures should be withheld or withdrawn were that individual to be in a certain condition. See Mack, 329 Md. at 208 , 618 A.2d at 754 (holding that “requests to withdraw sustenance from a person in a persistent vegetative state [require] the proponent of withholding or withdrawing life support to bear the burden of proving by clear and convincing evidence that the ward’s decision would have been to forego life support”). In addition to constitutional and common law rights to refuse life-sustaining medical procedures, an individual’s ability to direct in advance his choice concerning whether to refuse life-sustaining procedures is based in statutory law.

Prior to October 1993, the Life-Sustaining Procedures Act governed the form and effect of advance directives. Md.Code (1982, 1990 Repl.Vol.), §§ 5-601 through 5-614 of the Health-General Article. The Life-Sustaining Procedures Act permitted an individual, who was qualified to execute a will, to execute a declaration, called an advance directive, directing the withholding or withdrawal of life-sustaining procedures in the event two physicians certified the individual to be in a terminal condition. Id. § 5-602.

This act was criticized, especially in that the advance directives only applied to individuals imminently facing death, without including individuals in a persistent vegetative state, and the act was ambiguous with regard to the withholding or withdrawal of artificially administered sustenance necessary for comfort care and to alleviate pain. J.C. Byrnes, Life-Support Withdrawal: Law of Commiseration or Principle ?, 2: 2 Md. J. Contemp. Legal Issues 331 , 348-49 (1991). As Attorney General Curran observed in 1988, decisions about life-sustaining medical procedures were being made “against a background of legal confusion.” 73 Op.

Att’y Gen. 162, 169 (1988). ⁵⁷⁴ In May 1993, the General Assembly repealed the Life-Sustaining Procedures Act and enacted the Health Care Decisions Act (the Act), by Chapter 372 of the Acts of 1993, codified in Md.Code (1982, 1994 Repl.Vol., 1998 Cum.Supp.), §§ 5-601 through 5-618 of the Health-General Article (HG). 1 The Act overlies an individual’s existing common law right to refuse life-sustaining medical procedures: “The provisions of this subtitle are cumulative with existing law regarding an individual’s right to consent or refuse to consent to medical treatment and do not impair any existing rights or responsibilities which a health care provider, a patient, including a minor or incompetent patient, or a patient’s family may have in regard to the provision, withholding, or withdrawal of life-sustaining procedures under the common law or statutes of the State.” § 5-616(a). The Act establishes the framework by which health care decisions may be made. An individual, called the declarant, may make an advance directive. This may be done orally or in writing. § 5-601(b).

The declarant may also appoint an agent for health care. § 5-601(c). Or, the decision may be made by some other surrogate. § 5-605. Under the Act “[a]ny competent individual may, at any time, make a written advance directive regarding the provision of health care to that individual, or the withholding or withdrawal of health care from that individual.” § 5-602(a). The writing must be signed by or at the express direction of the declarant, dated, and subscribed by two witnesses. § 5-602(c)(1).

With regard to an oral advance directive, the Act provides that “[a]ny competent individual may make an oral advance directive to authorize the providing, withholding, or withdrawing of any life-sustaining procedure or to appoint an agent to make health care decisions for the individual.” § 5-602(d). An ⁵⁷⁵ oral advance directive made after October 1, 1993, must be “made in the presence of the [declarant’s] attending physician and one witness and documented as part of the [declarant’s] medical record.” Id. The attending physician and the witness must sign and date the documentation in the medical record. Id.

It is the responsibility of the declarant to notify the attending physician that the declarant has made an advance directive; if the declarant is comatose, incompetent, or otherwise incapable of communication, any other person may notify the attending physician. § 5-602(f)(l). Once an attending physician is notified of a written advance directive the physician must make the advance directive, or a copy of it, a part of the declarant’s medical records. § 5-602(f)(2)(i). Once an attending physician is notified of an oral advance directive, the physician must “make the fact of the advance directive, including the date the advance directive was made and the name of the attending physician, a part of the declarant’s medical records.” § 5—602(f)(2)(ii). An advance directive becomes effective either when conditions specified by the declarant are determined to have been satisfied in the manner specified by the declarant or “when the declarant’s attending physician and a second physician certify in writing that the patient is incapable of making an informed decision” regarding the treatment. §§ 5-602(e)(l), 5-606(a)(1).

This certification must be made prior to providing, withholding, or withdrawing medical treatment, and within two hours after the declarant has been personally examined by one of the two certifying physicians. § 5-606(a)(l). An adult is considered to be “incapable of making an informed decision” when the declarant is unable “to make an informed decision about the provision, withholding, or withdrawal of a specific medical treatment or course of treatment because the patient is unable to understand the nature, extent, or probable consequences of the proposed treatment of course of treatment, is unable to make a rational evaluation of the burdens, risks, and bene ⁵⁷⁶ fits of the treatment or course of treatment, or is unable to communicate a decision.” § 5-601(0(1). Compare §§ 5-602(e)(2), 5-606(a)(2) (providing that, if the declarant is unconscious or unable to communicate by any means, only the written certification of the attending physician is required). Additionally, where the declarant has an advance directive but has not appointed a health care agent, a health care provider cannot withhold or withdraw life-sustaining procedures 2 on the basis of the advance directive unless two physicians certify that the declarant is in one of three diagnostic conditions: a terminal condition, an end-stage condition, or a persistent vegetative state. § 5-606(b).

If the condition is a terminal condition 3 or an end-stage condition, 4 the declarant’s attending physician and a second physician must certify that the declarant is in a terminal or end-stage condition. § 5-606(b)(1). If the condition is a persistent vegetative state, 5 ⁵⁷⁷ two physicians, one of whom is a neurologist, neurosurgeon, or other physician who has special expertise in the evaluation of cognitive functioning, must certify that the declarant is in a persistent vegetative state. § &—606(b)(2). Appointment by a declarant of an agent for health care is addressed in § 5-602(b)(l). An individual who is competent “may, at any time, make a written advance directive appointing an agent to make health care decisions for the individual under the circumstances stated in the advance directive.” Id.

An instrument appointing a health care agent must comply with the signature and attestation requirements for an advance directive. § 5-602(c). “[T]he threshold of inability for being declared ‘incapable of making an informed decision’ ... must be reached before an advance[ ] directive, appointment of a health care agent, or surrogate decisionmaking may become operative to govern health care decisionmaking.” J.F. Fader II, The Precarious Role of the Courts: Surrogate Health Care Decisionmaking, 53 Md. L.Rev. 1193, 1210-11 (1994) (footnote omitted). If a health care agent has been appointed, and if two physicians have certified as to the declarant’s incapacity, there is no express requirement for physician certification that the declarant is in one of the three defined diagnostic conditions prior to withholding or withdrawing life-sustaining procedures. 6 Another type of agent for health care under the Act is a surrogate decisionmaker. Under the priority scheme set forth in the Act, where the declarant has no guardian, spouse, or ⁵⁷⁸ adult child, the declarant’s parent(s) “may make decisions about health care for a person who has been certified to be incapable of making an informed decision and who has not appointed a health care agent.” § 5-605(a)(2). The surrogate decisionmaker must base his decisions for the declarant on the declarant’s wishes (substituted judgment), considering six factors outlined in § 5-605(c)(2)(i) through (vi), or, if the declarant’s wishes are unknown or unclear, on the declarant’s best interest. § 5-605(c).

A surrogate decisionmaker’s ability to withhold or withdraw life-sustaining procedures is limited to situations in which the declarant is certified by two physicians to be in one of the three defined diagnostic conditions. § 5-606(b). The Attorney General has also opined that a durable power of attorney authorization under Maryland Code (1974, 1991 Repl.Vol., 1998 Cum.Supp.), § 13-601 of the Estates and Trusts Article may be used to authorize an agent to direct the ■withholding or withdrawal of life-sustaining procedures. “A person (the principal) may use a durable power of attorney to direct an agent (the attorney in fact) to carry out the principal’s specific directive concerning medical treatment, including the withholding or withdrawing of artificially administered sustenance under specified circumstances. Alternatively, a principal may choose to empower the attorney in fact to make all medical decisions on his or her behalf, rather than directing a specific treatment decision.” 73 Op. Att’y Gen. at 184.

II

The General Facts On July 18, 1994, Wright, age 33, was transported by ambulance from his home to the Moore Clinic, an outpatient HIV facility at the Johns Hopkins Hospital in Baltimore City. He was suffering from AIDS and was, on that day, complaining of fever, a worsening cough, poor oral intake, and diarrhea. From the Moore Clinic, Wright was admitted as an inpatient to the Osier 8 medicine service at the hospital for evaluation and treatment. From July 18 until July 20, Wright ⁵⁷⁹ was treated in Osier 8 for acute renal failure.

During that time his family regularly visited with him. On July 20, Wright telephoned his mother to tell her that he would be coming home that day after he finished receiving a blood transfusion. The purpose of the blood transfusion was to increase his circulating blood volume, which tended to improve his well-being. Within minutes after the transfusion was completed, Wright was found unresponsive and without a pulse.

Dr. James Miller, the resident physician assigned to care for Wright in Osier 8, directed that cardiopulmonary resuscitation (CPR) be administered. Wright was also intubated to assist his breathing. Breathing and circulation were restored. Wright was then transferred from Osier 8 to the medical intensive care unit (MICU) at Johns Hopkins.

Wright’s mother, father, and home health care nurse arrived at the hospital after having been informed of the incident. A physician informed Wright’s parents that it was their decision whether to keep Wright in the MICU or to send him back to Osier 8. The mother requested that Wright’s breathing tube be removed and that he be sent back to Osier 8. She requested comfort care treatment only for her son.

The transfer order from the MICU to Osier 8, bearing date of July 20, states: “Pt. is DNR/DNI.” 7 The transfer note, dated July 21, describes the occurrence as follows: “[Patient] was found in full arrest today by nursing staff after receiving a blood transfusion. Total CPR @ 10 min. Successful intubation and conversion from course V-fib to supraventricular tach. Transferred to MICU.

After transfer Osier 8 team informed by home health nurse that [patient] had written living will and expressed wish to be DNR/DNI. ⁵⁸⁰ ' “[Patient] was extubated on MICU and continued to breath spontaneously. Transferred back to floor____ “We will provide comfort care and make no further attempt to reintubate or resuscitate [patient] again per his expressed wishes.” 8 A consultation report written shortly after the occurrence concluded with certain recommendations, one of which read: “Would contact ethics committee to discuss medical-legal [and] ethical issues i.e., withholding of IVFs, nutrition, antibiotics etc.” Following the occurrence, Wright lay in a coma for two days. His mother testified that Dr. Miller informed her that Wright had suffered sixty-five percent brain damage. She further stated that after regaining consciousness Wright could only moan and call out for her.

He died on July 30, 1994, ten days after his cardiac arrest. Wright had been HIV positive since the mid-1980s and began treatment at Johns Hopkins around 1990. An assessment for HIV case management by Johns Hopkins was made on February 12, 1993. On his HIV Case Management Psychosocial Form, Wright checked a space indicating that he needed legal assistance and inserted the comment “Living Will, Power of Attorney.” On his HIV Case Management Plan of Care worksheet, in the “Legal Concerns” section, Wright checked the preprinted goal reading “[d]evelop legal plans to meet present and future life planning concerns.” On that same page, under the sub-heading “Life Planning Decisions,” he placed a checkmark next to “Do not resuscitate (DNR)” and “Living Will/Durable Power of Attorney decisions.” Less than two weeks later, on either February 22 or 23, Wright executed a document entitled “Declaration of Life-Sustaining Procedures (Living Will).” Wright’s Living Will directed that life-sustaining procedures be withheld or withdrawn in the event that two physicians (a) certify Wright to be ⁵⁸¹ in a terminal condition as a result of any incurable injury, disease, or illness, and (b) determine that Wright’s death is imminent and will occur whether or not life-sustaining procedures that would only serve to prolong the dying process were utilized.

The Living Will was signed by Wright and his mother and attested by two witnesses. 9 The first page of a document entitled “Durable Power of Attorney for Healthcare” is also in evidence. That page does not contain the spaces for signatures and a date. Wright’s mother represented to this Court that Wright executed this document in February 1993. Page one contains the appointment of Wright’s mother as his “agent to make healthcare decisions for [him] as authorized in this document,” and the appointment of his father as alternate health care agent. ⁵⁸² Page one states that Wright’s mother’s durable power of attorney for health care becomes effective upon the certification by two physicians that Wright is incapable of making certain decisions: “2.

Creation and Effectiveness of Durable Power of Attorney for Healthcare ‘With this document I intend to create a durable power of attorney for healthcare, which shall take effect when and if two physicians, one of whom is my attending physician, certify that I am disabled because I lack sufficient understanding or capacity to make or communicate decisions with respect to my own health care. The power shall continue in effect during my disability.” The document also states what authority is granted to the health care agent: “3. General Statement of Authority Granted “Except as indicated in Section 4, below,[ 10 ] I hereby grant to my agent named above full power and authority to make healthcare decisions on my behalf; including the following: (5) To direct the withholding or withdrawal of life-sustaining procedures or measures when and if I am terminally ill or permanently unconscious. Life-sustaining procedures or measures are those forms of medical care which only serve to artificially prolong the dying process, and may include mechanical ventilation, dialysis, antibiotics, artificial nutrition and hydration, and other forms of medical treatment which stimulate or maintain vital bodily functions.

Life-sustaining procedures do not include care necessary to provide comfort or alleviate pain.” Additional facts will be stated in the discussion of specific issues. ⁵⁸³ III. Procedural History The complaint contains four counts. In Count One (“Negligence-Survival Act”), Wright’s mother, as personal representative of Wright’s estate, alleged that on July 20, 1994, the defendants negligently administered CPR contrary to Wright’s Living Will and “negligently failed to reasonably, timely and properly explore and/or inquire as to Decedent’s intentions concerning resuscitation,” which resulted in Wright experiencing “additional unnecessary neurological impairment, pain and suffering, and ultimately ... a prolonged, painful and tragic death on July 30, 1994.” In Count Two (‘Wrongful Death”), Wright’s parents alleged that Wright’s suffering that resulted from the resuscitation caused them “mental anguish, unremitting grief and sorrow and pecuniary loss.” In Count Three (“Battery”), Wright’s parents alleged that the defendants “conducted an intentional, non-consensual harmful and/or offensive touching of the Decedent when they instituted resuscitative measures in violation of Decedent’s advance[] directives and/or failed to timely explore Decedent’s desires regarding resuscitative measures.” In Count Four (“Lack of Informed Consent”), Wright’s parents alleged that the defendants “failed to obtain Plaintiffs’ informed consent in that they negligently failed to disclose to Plaintiffs all material information, including, but not limited to, the nature of the proposed treatment [i.e., CPR]; the probability of success of the contemplated resuscitation and its alternatives; the risks and unfortunate consequences associated with such a treatment; and were otherwise negligent in failing to provide them with proper informed consent.” The parents stated that “[a]ny reasonable person, under the same or similar circumstances, if provided with such material information, would have withheld consent to the treatment, and would have sought alternative measures and would not have been subjected to continuing pain and suffering.” Pursuant to Maryland Code (1974, 1998 Repl.Vol.), § 3-2A-06B of the Courts and Judicial Proceedings Article (CJ), the plaintiffs elected to waive arbitration. ⁵⁸⁴ After taking Wright’s mother’s deposition, the defendants moved for summary judgment, arguing that they were statutorily immune from liability, that Wright’s Living Will never became operative, that there is no legally cognizable claim for Wright’s “wrongful life” damages, that no wrongful act caused Wright’s death, that no battery occurred, and that the emergency of the cardiac arrest suspended the physicians’ duty to obtain informed consent. Wright’s parents opposed the motions, filing an affidavit from Wright’s mother and, later, an affidavit from Dr. William J. Brownlee.

The plaintiffs argued that the defendants were not statutorily immune; that the Living Will was operative at the time of the resuscitation, or that, even if the Living Will was statutorily invalid, Wright exercised his common law right to refuse medical treatment; and that the administering of CPR was the wrongful act causing Wright’s death. In a supplemental memorandum of law the parents argued that, contrary to Johns Hopkins’s written policies, the defendants failed to place Wright’s Living Will in his medical chart and failed to discuss the matter of resuscitation with him. The circuit court entered judgment for the defendants for reasons stated in a lengthy written opinion. Much of the opinion reviewed facts as asserted by the plaintiffs and held that they did not alter the legal result.

The court concluded that, at the time of his cardiac arrest, Wright was not in a terminal or an end-stage condition. Nor were the defendants “required to delay resuscitation even for the minutes required to seek and obtain either consent of a health care agent or formal medical certification of the decedent’s pre-arrest medical condition as might warrant a' declination to resuscitate.” With regard to Wright’s Living Will, the court concluded that, although there may exist a dispute of facts as to “institutional pre-resuscitation knowledge of that advance directive,” the conditions precedent to trigger the Living Will, that is, physician certification that Wright was in a terminal condition or imminently facing death, had not been met. With regard to oral directives by Wright the court held that, if the health care ⁵⁸⁵ providers who resuscitated Wright could be shown to have been on notice of contrary oral directives at that time, they were not documented in Wright’s medical records as required under the Act and were, therefore, not binding on other, subsequently-involved physicians. Further, agreeing with an opinion by the Attorney General, 79 Op.

Att’y Gen. 137 (1994), the court held that certain uncertified oral statements by Wright lacked “reasonable clarity for informed medical implementation,” and that there was no evidence that cardiac arrest had been predicted and particular consideration given to a DNR in that event. Wright’s parents appealed to the Court of Special Appeals. Prior to that court’s consideration of the case, Johns Hopkins and the defendant physicians petitioned this Court for a writ of certiorari. Wright’s parents cross-petitioned.

We granted both petitions. Johns Hopkins Hosp. v. Wright, 350 Md. 280 , 711 A.2d 871 (1998). 11 IY. The Issues The parties have raised numerous and somewhat overlapping issues. They are: ■ • 1.

Under the Act or the common law, does an individual, and, accordingly, the individual’s estate, have a cause of action for a health care provider’s failure to comply with the individual’s advance directive? 2. Did the plaintiffs set forth sufficient facts to state causes of action for negligence, wrongful death, battery, and lack of informed consent? 3. Under the Act, does a sudden and unforeseen cardiac arrest render an otherwise non-terminal individual “terminal,” thereby triggering the operation of an advance directive? ⁵⁸⁶ 4. Under the Act or the common law, once an individual makes an advance directive, what measures must one or more