Six days. $20,000 in legal fees. One advance directive (living will) applied too soon.
A 60-year-old man suffered complications after cardiac catheterization, developing acute kidney injury from the intra-arterial dye and pulmonary edema requiring intubation. Serious? Yes. Reversible? Yes.
The patient just needed short-term ventilatory support and temporary dialysis. The plan, consent, and scheduling of a temporary dialysis catheter ensued. Then his advance directive was found.
The attending physician concluded the patient should never have been intubated and decided to not move forward with temporary dialysis, even though the patient had not been declared terminally ill and awakened and followed commands when sedation was reduced. The patient’s legally appointed health care decision-maker, his child, fought relentlessly for continued treatment. Due to the hospital’s lack of a resolution of the conflict, the patient’s estate planning attorney was contacted by the patient’s child (legally appointed health care decision-maker). Four attorneys, all colleagues in the same firm, dropped all their responsibilities and quickly became involved. An emergency injunction was pursued.
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Six days later, a judge ruled that the advance directive had been applied prematurely and the injunction was granted. The patient was transferred to another hospital and had appropriately indicated medical care withheld for almost seven days as this course of events unfolded.
The patient, a father, ultimately died.
This is the patient-safety problem we rarely discuss, and it’s a national patient safety problem that goes undisclosed when patients are presented with advance directives for completion. An advance directive is only as safe as its interpretation, and legal validity does not equal clinical interpretability.
Having a legal document isn’t enough. Physicians and clinicians must understand when it applies, what it means, and who has decision-making authority. The very reason we appoint health care decision-makers is because the advance directive does not apply in every medical situation.
This identifies a very important and underscored point. Advance care planning should not just be about a document or the creation of a portable medical order for life-sustaining treatment (POLST). And if it is, then we had better be sure that we understand them and when and how to both interpret and utilize them.
An advance directive is not to be followed because it exists and it is legally binding. At this point, it is a “valid” advance directive. The advance directive needs to be triggered to become enacted for you to follow it. What triggers the advance directive to become enacted is stated in the document and typically requires the patient to have a loss of mental capacity and then enter a terminal condition or persistent vegetative state. It then requires one or two physicians to document that terminal condition or persistent vegetative state. None of these required steps were followed in this patient encounter. Had the son not persisted with contacting his father’s estate attorney, then the hospital would have allowed for a unilateral withdrawal of life-sustaining treatment. This is a very underreported and unfortunate example of an extremely important national patient safety risk, and it requires us to repeat it often. “Legal validity does not equal clinical interpretability.”
The advance directive should help physicians and clinicians get the decision right for the patient. That is its primary goal, and it clearly failed this patient and family.
Ferdinando Mirarchi is the chief executive officer and chief medical officer of MIDEO Health Technologies, LLC. He is the principal investigator of the TRIAD (The Realistic Interpretation of Advance Directives) Research Series, which identified a significant patient safety risk involving the misinterpretation of living wills, DNR orders, and Physician Orders for Life-Sustaining Treatment (POLST).
His research has been featured by The New York Times, The Washington Post, and other national media outlets, and it led to the development of MIDEO (My Informed Decision on VidEO), an evidence-based video advance directive and portable physician medical order designed to clarify patient wishes and improve emergency decision-making.
He is a reviewer for leading peer-reviewed journals, including CHEST, JAMA, and JAGS, serves on the editorial board of Patient Safety magazine, and authored Understanding Your Living Will. A fellow of both the American College of Emergency Physicians and the American Academy of Emergency Medicine, he previously held multiple leadership positions at UPMC Hamot and chaired the national palliative care committee at US Acute Care Solutions.
