Can Health Care Providers Be Held Liable for Not Following Advance Directives?

Whether healthcare providers can be held liable for not following advance directives can vary depending on state laws and the circumstances surrounding patient care. Since advance directives are legally recognized documents, it is not uncommon for grieving families or loved ones to question the implications of liability or whether an advance directive can be challenged in court. However, the matter of liability often depends on a variety of factors. 

When a healthcare provider violates an advance directive, three substantial consequences are possible:

• The hospital where the patient received care may be penalized 
• The state medical board may discipline the healthcare provider 
• The healthcare provider and the hospital may be subject to medical malpractice liability

In a situation where an advance directive isn’t followed, it is crucial to understand the rationale behind the decision as well as the actions that were taken instead. Although advance directives are legally recognized documents, this does not necessarily mean that healthcare providers are required to follow them. For example, if the patient’s advance directive includes wishes that aren’t medically sound or may directly conflict with the healthcare provider’s conscience or ethics, they aren’t required to comply with its terms. 

If a healthcare provider chooses not to comply with a patient’s advance directive, they have an obligation to transfer or refer the patient to another healthcare provider that is willing to comply. The decision not to comply does not give the healthcare provider permission to violate the patient’s wishes in the advance directive by taking action without consent. The actions taken that violate the advance directive are typically where liability and medical malpractice become significant concerns. For example, lawsuits about advance directives have increased in recent years due to healthcare providers resuscitating patients to save their lives despite documentation indicating that patients didn’t want to be resuscitated.

It is important for patients and their healthcare providers to maintain clear communication regarding the patient’s end-of-life wishes and have accurate documentation that reflects any changes to those wishes. Healthcare providers must be aware of their legal and ethical boundaries, and likewise, patients must be aware of their ability to transfer to another healthcare provider that can honor their requests. Ultimately, liability issues can arise, and the risk for potential malpractice can increase without a firm understanding on the part of the patient, their family, and the provider as to what the goals of care are.

Sources

“Ensuring Advance Directives Are Followed and Lawsuits Are Avoided”. The ASCO Post. https://ascopost.com/issues/july-25-2017/ensuring-advance-directives-are-followed-and-lawsuits-are-avoided 

“Myths and Facts About Health Care Advance Directives”. American Bar Association. https://www.americanbar.org/groups/law_aging/publications/bifocal/vol_37/issue_1_october2015/myths_and_facts_advance_directives/