Palliative care has been much in the news recently. Just this week the papers have been reporting on a landmark study into end of life care which revealed serious shortcomings in the care of the terminally ill. A survey of more than 22,000 people who had registered a death in 2010 and 2011 found that one in three felt that their loved one’s privacy and nursing needs were not met at the end of their life. It is not just the day to day needs of terminally ill patients which can be overlooked – sometimes mistakes are made which can lead to a negligence claim. In this article we look at how some of these can arise and their consequences. We also look at the pressures faced by doctors dealing with life and death decisions.
The World Health Organisation defines palliative care as follows:
“Palliative care is an approach that improves the quality of life of patients and their families facing the problem associated with life-threatening illness, through the prevention and relief of suffering by means of early identification and impeccable assessment and treatment of pain and other problems, physical, psychosocial and spiritual.”
Incorrect terminal prognosis
The risk of misdiagnosis in the course of giving palliative care differs from other areas of medicine. Two examples illustrate why.
Palliative care is associated with the treatment of patients who are terminally ill – but what if that diagnosis of terminal illness is wrong? It is one of life’s ironies that some of the largest claims arise from the giving of good news.
Take the following scenario: The patient, a man in his fifties, is diagnosed with cancer and given a terminal prognosis. He receives palliative care and has many hospital and medical appointments to attend. He has some invasive treatment to try and slow the progression of the disease. He quits his job as full time work becomes impossible and he wants to spend what time he has with his family. His early retirement ends what had been ongoing payments into a pension scheme.
In fact, as transpires about a year later, he is not suffering from cancer. His symptoms of illhealth and general malaise were attributable to a completely different cause. With treatment, he will make a full recovery. The patient has a normal lifespan ahead of him.
Instead of being overjoyed at this reprieve, the patient is aghast. He has no job and little chance of securing one as he has been out of the workplace and he is a man in his fifties. His pension pot is significantly reduced as his contributions stopped shortly after the cancer diagnosis was made. He has undergone invasive and debilitating treatment and suffered significant pain and suffering as a result. Not surprisingly, he brings a claim.
Assuming he establishes breach of duty by the hospital, he will almost certainly be able to prove causation of loss. In such a scenario, the courts will say that the patient acted to his detriment in reliance upon the incorrect prognosis. In addition to his claim for pain and suffering, the hospital will be ordered to pay a sufficient sum in damages to restore the patient to the financial position which he would have been in but for the life changes which he made.
Misdiagnosis can be a particular problem in the area of palliative care. There can be an assumption that symptoms are attributable to the underlying illness as opposed to something which is in fact unrelated to it. The following example is real, but the names have been changed.
A claim for damages is made by the widow, Betty, on behalf of the estate of her late husband, John. John, who was in his seventies, died from pneumonia, which went undiagnosed and untreated, whilst in the care of a hospice. John had been admitted to the hospice for help in controlling his symptoms post-treatment for stomach cancer. Betty alleged that the doctors and nurses working at the hospice incorrectly assumed that John was suffering from a recurrence of the cancer, and failed to diagnose or treat the pneumonia, leading to John’s untimely death. She claimed that, had steps been taken to diagnose and treat the pneumonia, John would not have died when he did.
Of course the situation here is not one of uncaring doctors and nurses. The problem was caused because John’s symptoms were attributed to terminal cancer and not to an infection. The position was complicated by the fact that John was already in poor physical and mental shape even before the infection took hold. As his condition worsened he was dying, but from an untreated chest infection; not from cancer.
Causation and quantum
Claims for negligence in the course of giving palliative care will often give rise to particular issues on causation. Taking John’s case as an example, a key question will be whether the outcome for John would have been any different had the diagnosis of pneumonia been made, appropriate antibiotic treatment commenced and, most likely, he had been transferred to hospital.
Betty’s claim that John would have survived but for the negligence may be difficult to prove – he had already been receiving palliative care, which itself implies that he had a life-threatening illness. The defence argument might well be that, even if John had survived the pneumonia, he would have died from cancer or something else at some point in the very near future. Such an argument might either avoid all liability for the claim, or at least reduce the damages to a relatively low amount
Close to death situations
The fact that specialists in palliative care treat patients who are close to death can lead to ethical dilemmas and doctors may want the comfort of judicial approval for the treatment (or withdrawal of treatment) proposed.
Many of the cases which come before the courts concern patients who lack capacity and are unable to determine the nature of their treatment. A particularly poignant case was reported in the press in recent weeks. The patient, E, was a 32 year old former medical student who was suffering from extremely severe anorexia. She had not eaten solid foods for more than a year and her BMI was 11.3 (normal BMI would be between 18.5 and 25). She had begun to control her eating from age 11. She was in a community hospital under a palliative care regime whose purpose was to allow her to die in comfort.
E saw her life as pointless and she did not want to eat or be fed. She realised that her refusal to eat must lead to her death. She would take only small amounts of water.
The application to court was made by the local authority and sought permission to force feed E against her wishes. The application was opposed by E’s parents who believed that E should be allowed to die “a dignified death”.
The judge, Mr Justice Peter Jackson, had to weigh the value of E’s life against the value of her autonomy. He found that E lacked capacity to make a decision about life-sustaining treatment. The case was particularly difficult as the judge accepted that E was fully aware of her situation. He said that the competing factors were almost in equilibrium but he found that the balance was tipped in favour of life-preserving treatment. In these types of case, where the best interests of the patient must be determined, there is always a presumption in favour of the preservation of life and the judge held that in this case it was not displaced.
The judge was clearly influenced by the possibility of a cure – he said: “I would not overrule her wishes if further treatment was futile, but it is not. Although extremely burdensome to E, there is a possibility that it will succeed.”
The case illustrates the pressures placed on doctors giving end of life care, particularly when the medical staff have a different view from the patient or the family on the question of what is in the patient’s best interests.
Palliative care has been much in the news recently and that is likely to remain the case given the difficult decisions which doctors may be forced to make. This will always be an emotionally charged area of medicine and the results of the survey show that, from the public’s perspective, significant improvements in the standard of end of life care are still to be made.