Correspondence

Compulsory Payment for Unwanted Treatment

N Engl J Med 1993; 328:1571-1572May 27, 1993

Article

To the Editor:

The article by Annas on compulsory payment for unwanted treatment (Dec. 24 issue)1 mentions the recommendations of the New York State Task Force on Life and the Law. Annas supports the recommendation that no hospital or attending physician who fails to follow the decision of a designated surrogate be entitled to compensation for services. We strongly disagree with this part of the proposed legislation.

The law already provides civil penalties for assault and battery if a patient is treated against his or her wishes. Some families and friends become disheartened after a patient dies. They may try to second-guess many of the decisions made by themselves, the physicians, the nurses, and the health care facility. The emotional climate at such a time is against paying what may be a sizable bill. If the proposed legislation concerning nonpayment for unwanted care is enacted into law, it will amount to an open invitation to families, friends, and surrogates to withhold payment or to institute lawsuits. What if the physicians believe the surrogate said or meant one thing and the surrogate later claims to have been misunderstood, whether in good faith or willfully? The result might be a flood of cases in the courts that the proposed surrogate legislation is intended to prevent.

Fred Rosner, M.D.
Queens Hospital Center, Jamaica, NY 11432

Pieter Kark, M.D.
5730 Commons Park, Dewitt, NY 13214

Allen J. Bennett, M.D.
Beth Israel Medical Center, New York, NY 10010

1 References

1. 1

   Annas GJ. Adding injustice to injury -- compulsory payment for unwanted treatment. N Engl J Med 1992;327:1885-1887
   Full Text | Web of Science | Medline

Author/Editor Response

Professor Annas replies:

To the Editor: The relationship between physicians and hospitalized patients is severely imbalanced, with physicians and hospitals holding virtually all the power. It is theoretically possible to bring lawsuits for assault and battery when treatment is given against a patient's wishes. The task force, however, was able to locate no New York case in which such an action resulted in the award of monetary damages to a patient or family.

The task force concluded (correctly, I believe) that a more realistic way to prevent this harm to patients is to provide by statute that unlawful treatment should not be compensated.1 The purpose (and likely result) is not to flood the courts with cases, but to prevent the harm to patients from occurring in the first place, by partially and prospectively redressing the inherent imbalance of power. If the New York legislature wanted to redress the imbalance even more, it could make the hospital where the unlawful treatment is provided responsible for paying the patient or the patient's family an amount equal to the cost of the unlawful treatment, in the form of liquidated damages.

George J. Annas, J.D., M.P.H.
Boston University Schools of Medicine and Public Health, Boston, MA 02118

1 References

1. 1

   Promoting surrogate decisions. In: When others must choose: deciding for patients without capacity. New York: New York State Task Force on Life and the Law, 1992:233-6.