Document Type

Working Paper

Publication Date

10-31-2018

SSRN Discipline

Economics Research Network; Legal Scholarship Network; PSN Subject Matter eJournals; Political Economy - Comparative eJournals; Law School Research Papers - Legal Studies; Financial Planning Research Network; Law & Society eJournals; Law & Society: Private Law eJournals; LSN Subject Matter eJournals; FinPlanRN Subject Matter eJournals; Political Science Network

Abstract

Executing an advance directive that specifies a patient's wishes regarding endoflife medical care is an exercise of selfdetermination "“ a conscious choice about the degree and type of medical intervention one wishes to receive under endoflife circumstances Empirical studies however consistently report that healthcare professionals fail to comply with advance directives violations of a patient's interest in selfdetermination are alarmingly common From a practical perspective the conduct of either patients or healthcare professionals may make an advance directive unavailable which results in noncompliance Legally courts have historically rejected claims for "wrongful living" associated with the prolongation of life that results from unwanted medical intervention As a result healthcare professionals fear the liability threatened by a wrongful death claim more than the legal exposure risked by keeping an individual alive despite a contrary mandate in an advance directive In response to practical concerns regarding availability this paper proposes the creation of a nationwide registry of advance directives and argues that sanctions for violations of professional responsibility as well as the risk of liability for legal malpractice encourage utilization of the proposed registry To realign the skewed legal incentives this paper argues that the compensable harms associated with battery and negligence claims filed in lieu of "wrongful living" claims should include the loss of enjoyment of life Because damages for loss of enjoyment of life are rarely mentioned by courts or scholars in the context of violating advance directives this paper describes loss of enjoyment of life damages and argues that such damages should be compensable in the same manner that tort law compensates for similar injuries that lack an objective market value In combination the practical and legal proposals incentivize compliance with an advance directive and thereby expand the protection afforded a patient's interest in selfdetermination

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