Hospital can be sued for saving patient's life, Ohio Appellate Court rules.

A dying hospital patient who is resuscitated against his wishes can sue the hospital for damages related to health problems occurring after the resuscitation, an Ohio appellate court recently ruled. (Anderson v. St. Francis-St. George Hospital, No. C-930819 (Ohio Ct. App. Mar. 15, 1995).)

This is the first time a claim like this has been allowed, according to plaintiff's attorney William Knapp of Cincinnati.

Writing for a three-judge panel, Judge Marianna Brown Bettman noted that a competent adult's right to refuse medical treatment has been well established in common law and codified in both federal and state statutes. "[U]nless health care providers ... face consequences for ignoring or failing to follow a patient's directives, the public policy favoring these directives stands to be undermined," she wrote.

The patient, 82-year-old Edward Winter, who had a history of heart disease, was admitted to the hospital in 1988 after losing consciousness. When he awoke, he told his doctor that he wanted the hospital staff to use no extraordinary measures to save his life. The doctor indicated Winter's wishes on his chart.

Three days later, Winter's heart began to beat in a potentially fatal irregular rhythm. A nurse, who was unaware of the doctor's order, resuscitated him by defibrillation - electrically shocking the heart with paddles. After recovering for two days, Winter suffered a stroke that left him paralyzed on the right side.

Until he died two years later, Winter required round-the-clock care. He was incontinent and unable to walk and had difficulty speaking, bathing, and dressing. His medical expenses were over $100,000.

The lawsuit, brought on behalf of Winter's estate, is seeking reimbursement of his medical expenses and compensation for pain and suffering he endured as a result of the stroke.

This is the second time the court of appeals issued a ruling in the case. On the first round, the court held that the plaintiff's claims had been properly dismissed by the trial court because Ohio does not recognize a cause of action for "wrongful living" - a claim for damages for merely finding oneself alive after unwanted resuscitative measures.

On second review, the court reaffirmed that decision, but found that the trial court had erred in dismissing the estate's negligence and battery claims. If "fact finders determine that negligence or battery occurred, which Winter's estate must prove, the estate may legally recover damages caused by the unwanted resuscitative efforts and the express violation of his wishes," Bettman wrote.

The court made a point of distinguishing a claim for "wrongful life" from a claim for wrongful living. "Wrongful fife is an action brought by a child, on its own behalf, claiming damages due to the negligent sterilization by a doctor of one of the child's parents.... [W]e cannot compare, and do not consider analogous, a claim brought by an infant at the very beginning of fife with a decision made by a competent adult to refuse treatment at the very end of his life," Bettman wrote.

Another Ohio appellate court weighed similar issues in a case in which a hospital's staff allegedly placed a woman on life support against her wishes. (Estate of Leach v. Shapiro, 469 N.E.2d 1047 (Ohio Ct. App. 1984).) But in that case, the plaintiffs did not allege that the hospital had acted improperly in resuscitating the woman.

At TRIAL press time, the hospital in Anderson was reportedly considering an appeal.