MARCH 17, 1997 VOLUME 4, NUMBER 37
Dorothy Ficke was admitted to an Evangelical Health Systems hospital in Illinois in March, 1993. Ms. Ficke was 81 years old and suffered from a recent stroke, and diabetes, arthritis, gout, hypertension, congestive heart failure, respiratory disease and depression.
Ms. Ficke had never signed a Living Will or Health Care Power of Attorney, but her hospital chart was marked Do Not Resuscitate by her physician, Dr. Jose Aruguete, a little more than a week after her admission. Ms. Ficke died soon after.
Claiming that they had not been told about Illinois’ law permitting surrogates to make health care decisions, and that they had been forced to stand by while Dr. Aruguete continued to aggressively treat their mother, Mrs. Ficke’s children Darlene, Thomas and Michael brought suit against Dr. Aruguete and the hospital. Their claim against the hospital asserted that hospital staffers knew that Ms. Ficke lacked capacity and that the hospital took no steps to determine whether family members could make health care decisions for her; they also argued that the hospital failed to tell them they had the power to make decisions regarding her care.
The Illinois trial court judge dismissed the Ficke children’s suit against the hospital, and they appealed. The Illinois Court of Appeals has now agreed that the children have no lawsuit against the hospital.
Illinois’ law is similar to Arizona’s surrogate decision-making law. It provides that, where a patient is terminally ill, permanently unconscious, or suffering from an incurable or irreversible illness, family members may make decisions regarding health care even if the patient has not signed an advance directive. [Ed. note: Arizona law permits the family member to make any decision except a decision to withhold or withdraw food or fluids]
The Court of Appeals decided that any fault in Ms. Ficke’s case could not be assigned to the hospital. Although the hospital has a duty to determine whether surrogates are available to act, it must do so only after the terminal condition, permanent unconsciousness or incurable or irreversible condition has been certified. “[I]t is for the attending physician, not the hospital or its staff,” said the Court, “to determine whether the Act applies to a particular patient.” In other words, any claim the family may have must be against Dr. Aruguete.
Furthermore, the Court found that family members do not have a cause of action for their own suffering from having to watch the treatment and, ultimately, the death of their mother. While their mother’s estate might have a claim against Dr. Aruguete, the law does not provide protection for family members; to do so, said the Court, would leave open the question of whether only close family members might make claims, or only those family members who truly “cared about” the decedent.
Although not a model of linguistic clarity, the Court acknowledged that “the death of a parent is indeed an event occasioned by the continued suffering or grieving of the decedent’s family.” Suffering and grieving, however, do not give rise to a legal claim. One member of the three-judge court disagreed with the majority, arguing that the family members should have a cause of action against the hospital because the facility knew (or should have known) that Ms. Ficke was in fact covered by the surrogate law, whether or not her physician filled out the requisite form certifying her condition. Ficke v. Evangelical Health Systems, Illinois Court of Appeals, December 13, 1996.
Although Arizona law is similar in some respects, it is not clear whether the same result would be reached in similar facts. Absent special circumstances, facilities are well-advised to consider the wishes of family members regarding cessation of life-sustaining treatment.