AGO 1993-062.

• Case Date: December 21, 1993
• Court: Ohio

Ohio Attorney General Opinions 1993. AGO 1993-062. December 21, 1993OPINION NO. 1993-062The Honorable Anthony G. Pizza Lucas County Prosecuting Attorney Lucas County Courthouse Toledo, Ohio 43624-1680 Dear Prosecutor Pizza: You have requested an opinion "on the legal requirements for rescue squad personnel who encounter situations where they are asked to honor a family member's request to provide no extraordinary care to a rest home resident." You ask specifically for consideration of this question in light of the creation of the Ohio Emergency Services Board and in light of legislation that has since been enacted concerning living wills. Right to Refuse Medical Treatment Ohio law governing the right of an individual to refuse medical treatment was addressed in Estate of Leach v. Shapiro, 13 Ohio App. 3d 393, 469 N.E.2d 1047 (Summit County 1984). The Leach case set forth the following general principles: (1) a physician who treats a patient without informed consent commits a battery, even if the treatment is harmless or beneficial; (2) absent legislation to the contrary, the patient's right to refuse medical treatment is absolute until the quality of competing interests is weighed in a court proceeding; (3) if a patient is not competent to consent to medical treatment, an authorized person may consent on the patient's behalf; (4) the patient's consent will be implied if the patient is unable to consent and there exists an emergency requiring immediate action to preserve the life or health of the patient; (5) consent to emergency medical treatment will not be implied if the patient has refused treatment in a manner that satisfies the same standards of knowledge and understanding required for informed consent; (6) the existence of consent to medical treatment is a question of fact. The court stated:

We conclude that a patient has the right to refuse treatment, and that this refusal may not be overcome by the doctrine of implied consent. Before this refusal can controvert the implied consent of a medical emergency, however, it must satisfy the same standards of knowledge and understanding required for informed consent.

Id. at 397, 469 N.E.2d at 1053. The court remanded the case for consideration of questions of consent and liability with respect to a patient who had been held on life support systems while in a chronic vegetative state. The Leach case involved the physician-patient relationship and did not address non-physician rescue personnel. See also Leach v. Akron General Medical Center, 68 Ohio Misc. 1, 426 N.E.2d 809 (C.P. Summit County 1980) (earlier proceeding, in which the court balanced the constitutional right to privacy against various state interests and granted the guardian's request for an order to remove the respirator). Later, in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990), the United States Supreme Court assumed for the purposes of that decision that a patient has the right to refuse lifesaving hydration and nutrition, based on the liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The Court held, however, that a state may require clear and convincing evidence of a patient's desires. The question of refusing or terminating life-sustaining treatment was also addressed in the case In re Guardianship of Crum, 61 Ohio Misc. 2d 596, 580 N.E.2d 876 (P.Ct. Franklin County 1991). There, the Probate Court of Franklin County held that a competent person has a constitutionally protected liberty interest in refusing medical treatment, but that relevant state interests may be sufficiently compelling to outweigh the constitutional right to refuse treatment. Thus, the court imposed a balancing test comparing a patient's rights with the various interests of the state. The Crum decision found that a probate court is empowered to authorize the withdrawal of nutrition and hydration of a minor in appropriate circumstances, and granted the guardians in that case the authority to withdraw nutrition and hydration from their incompetent ward, who was in a chronic vegetative state. In re Guardianship of Myers, 62 Ohio Misc. 2d 763, 610 N.E.2d 663 (C.P. Summit County 1993), recently reached a similar result. In Myers, the court considered the withdrawal of nutrition and hydration from a minor who was in a persistent vegetative state and adopted the best interest test applied in Crum, rather than the substitute judgment test used in Leach. Principles discussed in the Leach case were applied in Anderson v. St. Francis - St. George Hospital, 83 Ohio App. 3d 221, 614 N.E.2d 841 (Hamilton County 1992), motion to certify overruled, 66 Ohio St. 3d 1459, 610 N.E.2d 423 (1993). In that case, a physician, after discussion with a patient, entered an instruction in the hospital record that the patient not be resuscitated. During subsequent treatment at the hospital, the patient suffered a ventricular fibrillation and a nurse resuscitated him. The patient claimed that the resuscitation was a battery and that resuscitation contrary to the physician's order constituted negligence. The patient also claimed that he suffered physical and emotional injury and medical expenses as a result of the resuscitation. The court rejected the patient's claim that he should receive damages for having his life wrongfully prolonged, stating that under existing Ohio law "there is no cause of action for wrongful living." Id. at 227. The court did, however, find that there were factual questions as to whether the hospital was liable for battery or negligence and, if so, what damages should be awarded. As in Leach, the court in Anderson recognized the authority of a potential patient to expressly refuse emergency treatment. Neither Leach nor Anderson, however, addressed the situation of rescue...