This chapter considers laws relating to prescription of opioids, informed consent and advance directives, and assisted suicide. Among those with clinical, administrative, or similar involvement in end-of-life care, much of the debate about issues such as prescription regulation or informed consent is practical. For example, how can prescription laws be modified so that they do not discourage effective pain management but still respond to legitimate concerns about misuse of controlled substances? For some issues, most notably assisted suicide and euthanasia, ethical concerns may dominate legal discussions, but practical issues also arise as described later in this chapter. The focus here is primarily on how laws may affect the quality of care for dying patients.
Although the impact of malpractice litigation on medical practice is a complex and disputed question, it is discussed only briefly because the committee did not view the prospect of malpractice litigation as likely to have a significant impact on end-of-life care specifically. The committee, however, recognized concerns that physicians may engage in defensive medicine (e.g., ordering extra tests, prescribing unnecessary medications, performing hopeless CPR) because they fear being sued for a bad outcome that plaintiffs might attempt to attribute to lack of a test or procedure. Similarly, decisions might sometimes be influenced by the fear of being sued for not following a family's wishes, even if those wishes were contrary to the doctor's clinical judgment and the patient's own wishes. The committee did not find evidence that physicians were concerned about liability for failure to intervene to relieve pain or other symptoms.
In any case, many of the steps proposed in this report would tackle problems of undertreatment, overtreatment, or mistreatment of dying patients in ways that should reduce the potential for litigation and physician uncertainties and fears about being sued. At the practitioner level, these steps include changing clinicians' attitudes, knowledge, and practices so that they communicate more effectively with patients and families, engage patients and families in a process of goal setting and decisionmaking that increases trust and minimizes misunderstanding, and properly assess and treat pain and other symptoms. At the system level, they include strategies for measuring, monitoring, and improving care that seek to identify and respond to the preferences, experiences, and feelings of patients and families. If, however, these strategies fail to correct the deficits identified in Chapter 3 and if patients come to understand that the standards of care (e.g., practice guidelines) call for efforts to relieve symptoms, then litigation stemming from inattention to symptom management might become more likely—but not necessarily productive. The primary injured plaintiff would, in the case of a dying patient, likely have died, and although a family could claim injury and testify about the decedent's suffering, damages would be hard to establish. In addition, the status of practice guidelines in the courts