A New Life for Wrongful Living

In a forthcoming Symposium issue of the New York Law School Law Review, Nadia Sawicki is publishing "A New Life for Wrongful Living."  

Like me, Sawicki is "ultimately optimistic" about claims for the wrongful prolongation of life.  It was a pleasure to be a part of this Symposium, last November, with Professor Sawicki.  Here is the abstract:

A patient has an indisputable right under federal and state laws to set forth her wishes for end-of-life medical care in an advance directive or other legal document, or by way of a health care proxy. Such directives are legally binding in that they can be used to enjoin a medical provider from administering life-sustaining care against the patient’s wishes. However, if a medical provider wrongfully provides treatment in contravention of the patient’s directive, the force of this directive essentially vanishes – for the past few decades, patients in such situations have been unable to recover in tort for the injury of suffering unwanted life-sustaining treatment, commonly referred to as the tort of “wrongful living” or “wrongful prolongation of life.” 

For years, the right to set limits on the care one receives at the end of life has been described as an “illusory protection,” a “false promise,” and a “right without a remedy.” Countless scholars have written critically about the failure of tort law to accommodate claims of wrongful living, described as recently as 2011 as “a cause of action that has not gained traction.” Judging by the most recent legal scholarship, patients seeking ex post enforcement of their wishes to refuse life-sustaining medical treatment essentially have no legal recourse. 

This Article is the first to offer an ultimately optimistic perspective about the viability of tort claims for wrongful prolongation of life. A variety of recent developments – including favorable jury verdicts, settlements, supportive judicial commentary, and proposed legislation – suggest that plaintiffs seeking recovery for a wrong that has traditionally been considered non-compensable may have greater success in the future.