Appendix Table 3.

Potential Legal Protection for Clinicians

Statutes	Examples
Presumed validity of advance directive or appointed agent (except DC, FL, GA, KS, ME, NC, NH, NJ, NY, TX)	In Idaho, the statute ID St § 39-4513(1) states, “No emergency medical services personnel, health care provider, facility, or individual employed by, acting as the agent of, or under contract with any such health care provider or facility shall be civilly or criminally liable or subject to discipline for unprofessional conduct for acts or omissions carried out or performed in good faith pursuant to the directives in a facially valid POLST form or living will or by the holder of a facially valid durable power of attorney or directive for health care.”
Cumulative clause (except AK, KS, ME, MD, MA, MI, OR, which do not have cumulative and/or oral advance directive statutes)	In Camp v. White, 510 So.2d 166 (Alabama 1987), a competent patient orally refused treatment after physicians determined that she should permanently be placed on a ventilator. Her physicians complied with this oral statement, and the patient died soon thereafter. The patient’s daughter sued the physicians for (among other things) failing to obtain her mother’s wishes in writing, as required by Alabama’s Natural Death Act. The Alabama Supreme Court concluded that written directives are not the only means of communicating patient preferences at the end of life and that following the oral directive of the patient in this case was proper. The physician was not held liable.
Immunity statute (relying on advance directive or agent in “good faith”; upheld in all states)	In Estate of Maxey v. Darden, 187 P.3d 144 (Nevada 2008), a patient attempted suicide by overdose. In the emergency department, the patient’s ex-husband requested comfort care even though Nevada law prohibits ex-spouses from acting as default agents. The medical team believed that the patient’s ex-husband was a valid surrogate and removed life-sustaining treatment, and the patient died. The Nevada Supreme Court stated that a physician’s “belief” that an individual was a permitted surrogate was not subject to judicial review.
Provider right of refusal (except IN and MI)	In Duarte v. Chino (Duarte et al. v. Chino Community Hospital et al., 72 Cal. App. 4th 849, 1999), a patient in California was in a persistent vegetative state after an automobile accident. The patient had not completed an advance directive or designated an agent. Thus, the patient’s family was left to make medical decisions. The family asked the patient’s physician to withdraw life-sustaining treatment, but the physician refused. The family and hospital negotiated an agreement that would release the physician and hospital from liability if the physician withdrew treatment, but the physician refused to sign the agreement. The family then sued the hospital and physician. The court held that, under California law, the physician could not be held liable for refusing to withdraw treatment as requested by the patient’s family. The court noted that, even if the patient had validly appointed a family member to be an agent, the physician would not be required to withdraw treatment if the agent requested this action. Furthermore, even if the patient directly requested to withdraw treatment through an advance directive or POLST, the physician would not be required to withdraw treatment but only to take reasonable steps to transfer the patient to another facility.

POLST = Physician Orders for Life-Sustaining Treatment.