Medical Malpractice Case for Keeping Patient Alive
This edition of the Koldin Law Center E-Newsletter reviews a recent Court Case finding that families can sue for Medical Malpractice for pain and suffering when a medical provider administers life saving measures causing the patient to remain alive against his/her wishes.
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The majority of our clients sign a Health Care Proxy which includes the authority to terminate life support measures.
In a recent New York Appellate Court case, the issue was what liability health care providers have for not honoring medical treatment directives.
In the case of “Greenberg v. Montefiore New Rochelle Hospital,” the patient signed a Health Care Proxy, a Living Will, and a Medical Order for Life-Sustaining Treatment (MOLST). These documents clearly directed that no antibiotics or intravenous fluids be used other than to minimize pain.
The Health Care Agent under the Health Care Proxy verbally directed that the patient was not to receive interventional medical treatment, including antibiotics, and that he was only to be provided with measures to alleviate pain, so that his suffering would end as quickly as possible.
Nevertheless, the attending physician directed that the patient be treated with intravenous antibiotics and ordered a brain CT, chest X ray, ECG, blood tests, and the administration of other medications that were not necessary to alleviate pain.
An expert testified that had the patient not received treatment, he likely would have died from sepsis within a few days. Instead, he endured pain and suffering over a period of approximately 30 days, until he died.
The lower Court held that you cannot file a malpractice claim for providing medical treatment to keep a patient alive. The Appellate Court reversed and sent the case back for a trial.
The Appellate Court held that the claim can go forward in the Trial Court to sue for damages for the deceased patient’s pain and suffering, which was allegedly the result of medical malpractice in that defendants breached the standard of care by administering treatments without consent and in direct contravention of the patient’s wishes expressed in his advance directives as reaffirmed by his health care agent and in the MOLST.
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At the Koldin Law Center, P.C., located in East Syracuse, New York, we have over 50 years of experience helping individuals plan for immediate crisis and long term care. Our attorneys are available to discuss your estate planning options, including the advantages and disadvantages of Revocable Trusts and Irrevocable Trusts, along with other estate planning considerations including a Will, Power of Attorney, and Health Care Proxy.
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