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Appellate court may decide suit over an unwanted resuscitation Death: A lawsuit begun after a dying man's wish was ignored questions hospitals' and doctors' regard for living wills.

THE BALTIMORE SUN

Over 10 days in July 1994, Robert "Terry" Wright suffered a painful death from the complications of AIDS that he had tried to avoid, unaware even that the mother he moaned for was beside his bed.

"He didn't want to die like that," said his mother, Jeanette Wright.

She and her husband, Robert Wright Sr., have pressed what amounts to a wrongful revival lawsuit against Johns Hopkins Hospital and its physicians.

If the Court of Appeals takes on the case, judges for the first time could rule on whether health care providers can be held liable for not honoring, under some circumstances, a patient's advance decision to die, and whether the law protects hospitals if they mistakenly revive patients who want to die.

In February 1993, his health fast failing, Terry Wright signed a living will he got from Johns Hopkins. It said that once two doctors certified he was terminally ill and his death was imminent, he did not want his dying artificially prolonged.

On a hospital planning form, he checked "do not resuscitate."

He named his parents, with whom he lived in Baltimore, to make health care decisions for him if he was unable to make them himself.

But July 20, 1994, when the 33-year-old's heart stopped in a reaction to a blood transfusion, doctors did resuscitate him and Wright emerged from the crisis brain-injured.

What happened amounted to battery and negligence, the Wrights say in a $1 million lawsuit. Doctors should have known not to revive their son, they say.

The medical professionals say no order was included in his chart to let him die, despite the living will. If they erred on the side of life, the law covers them with immunity, the doctors say.

Baltimore City Circuit Judge John Carroll Byrnes dismissed the Wrights' lawsuit in January. He said state law backed the hospital and doctors, that while death is a legal harm, continued life is not. The Wrights appealed to the intermediate appellate court to allow their case to go to trial. The health care providers asked the Court of Appeals to tackle the issues, and it heard arguments this month.

'Medical battery' alleged

The unusual case unfolds against a backdrop of heightened awareness about the quality of death and under what conditions patients want high-tech care available to sustain life.

It is one of a small but growing group of lawsuits nationwide accusing the medical community of not following through on patients' advance requests to withhold treatment.

Like the Wrights' lawsuit, these suits argue that unwanted treatment is "medical battery." While winning damages is difficult, in one 1996 case, a Michigan woman won a $16.5 million judgment against a hospital for contradicting her wishes and leaving her daughter alive but incapacitated. The two sides settled out of court for an undisclosed figure.

"It is just the beginning of a trend -- there is not a lot out there on it," said Carol Sieger, an attorney for the advocacy group Choice in Dying, which follows these cases.

A 1995 national study found a gap between patients' dying wishes and how they were treated. The Robert Wood Johnson Foundation found 31 percent of the patients in its study said they did not want cardiopulmonary resuscitation, but 80 percent of the doctors either misunderstood or ignored them. Half the patients who wanted their doctors to write "do not resuscitate" orders were not obeyed.

"They are the toughest end-of-life issues we deal with," said Richard H. Wade, spokesman for the American Hospital Association. "The hospital gets thrown into the middle of all this."

Some patients say they want no cardiopulmonary resuscitation if it would leave them impaired. But health care workers often cannot predict if revived patients will be disabled or brain-damaged -- or if they will return to the exact condition they were in before the crisis.

Jack Schwartz, the Maryland attorney general's chief counsel for opinions and advice, said making choices for the end of life has grown more complex, "but our model is the cancer patient of the late '70s" whose disease progress was predictable. Treatment for AIDS, pulmonary disease and heart diseases changed that.

"People with these diseases have crises and they sometimes survive the crisis and get better. But one of the crises they die from. It's very unpredictable when that crisis has arrived," he said.

When admitted to the hospital July 18, 1994, Wright was not near death, said Carol A. Zuckerman, lawyer for Hopkins and its physicians. When transfused July 20, 1994, the AIDS patient felt better and was about to be discharged. None of the terms of his living will was met. His reaction to the transfusion -- and he had had many transfusions before -- was an unexpected emergency, she said.

Responding to judges' questions, Zuckerman said the law has to be interpreted to protect a doctor or hospital that revives a patient in good faith.

"If they make a decision not to resuscitate, then he is dead and they cannot bring him back," Zuckerman said. A resuscitated patient can be allowed to die.

"I call it institutional arrogance," countered Matt R. Ballenger, the Wrights' lawyer, claiming that the Hopkins health care system was making a circular argument because it created its own emergency. It had at least two days to talk to a patient who had full-blown AIDS about whether he wanted to be revived if his heart stopped and then flag his chart, the lawyer argued.

"Hopkins said it wasn't in his chart at the time he arrested. But, hey, that is not our fault. [They] were supposed to have it. Either they didn't inquire or it was overlooked or misplaced," Ballenger said.

He said having two physicians certify Wright was terminally ill seems superfluous for a patient bedridden with acquired immune deficiency syndrome and its complications, he said.

"The whole point of this lawsuit is to put health care providers on notice that you have a duty to talk to patients. If you don't do that, you face liability," Ballenger said. "The next patient, it may not be 10 days, it may be 10 years."

Mother holds memories

Jeanette Wright sat in the last row of the Court of Appeals' courtroom listening to lawyers address the seven judges about her son's death, her fingers pressed to her temples, a lace-trimmed handkerchief in her hand.

"Being here today is like living this all over again," she said later.

Her son, who was gay, watched so many friends die that in one month he attended six funerals. The 1978 Northern High School graduate planned for his death as his health faded.

The winter before he died, he and his mother wrote his obituary. They shopped at Hecht's for funeral clothes.

He insisted his mother take him to play the slots in Atlantic City.

"Just him and me, all the IVs and all these drugs. I was afraid the cops would stop me, so I got notes from the doctors," she recalled.

He hit big: $500 on a $10 bet. But he knew the good times were fleeting.

"He wanted no lifesaving. He was very vocal about it," she said.

But he continued with a panoply of medicines. Treatment, often depending on the latest medical crisis, came in home nursing, clinic visits, emergency room trips and hospital admissions.

The last admission -- the one in dispute -- was for weakness, pain and failing kidneys.

In an affidavit, Wright said her son told his clinic doctor as he was being admitted that he wanted no lifesaving measures, though in an earlier deposition she said she had no information that her son told doctors he wanted a "do not resuscitate" order on his chart.

Two days later, Robert Wright Sr. called his son to check his release time. Instead, he overheard his son being resuscitated. The Wrights rushed to the hospital and were met by staff members who apologized for reviving him, his mother says.

A hazy point about the case is how the breathing tubes came to be removed from Wright's body. Jeanette Wright says the staff realized its error. Zuckerman says with the patient comatose, his parents sought removal of the tubes. Hospital records in the court file are unclear.

Jeanette Wright remembers crying with her son when he filled out end-of-life forms for the hospital. "I'm still living with this, that I let him down," she said.

Pub Date: 12/30/98

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