The Right To Die and Informed Consent in Missouri Law

The doctrine of informed consent arose out of the common law recognition of an individual’s right to make decisions regarding his or her wellbeing. Cruzan v. Harmon, 760 S.W.2d 408, 417 (Mo. 1988) (en banc), aff’d, 497 U.S. 261 (1990). This fundamental right prompted the formation of a duty on the part of a physician to obtain the informed consent of a patient before subjecting him or her to treatment. Wilkerson v. Mid-America Cardiology, 908 S.W.2d 691, 696 (Mo. App. W.D. 1995). A patient’s decision to withhold or withdraw life-sustaining treatment deals with the legal corollary: that an individual generally has the right to refuse treatment. Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 270 (1990). The purpose of this section will be to discuss some of the issues presented by the Cruzan decision, and to analyze Missouri’s Living Will Statute.

In 1983, Nancy Cruzan was involved in a single-car accident that left her in a persistent vegetative state. Cruzan, 760 S.W.2d. at 411. She required the use of a gastronomy feeding tube for her nutrition and hydration. Id. The issue presented by this case was whether her parents, as co-guardians, could order that the hospital withdraw Nancy’s feeding tube. Id. at 410. The co-guardians introduced evidence of a conversation Nancy had prior to the accident, wherein she stated that if she was sick or injured, then she would not want to continue her life unless she could live “halfway normally.” Id. at 411. Based on this conversation, the trial court concluded that Nancy would not wish to continue with nutrition and hydration. Id. The trial court ordered state employees to carry out the orders of the co-guardians. Id. at 412.

The Missouri Supreme Court reversed the trial court’s decision. Although it recognized a right to refuse treatment, the court required that the evidence of an incompetent’s wish as to the withdrawal of treatment be proved by clear and convincing evidence. Id. at 424. To be truly informed, the court stated that the patient must have the “capacity to reason and make judgments,” the decision must be made “voluntarily and without coercion,” and the patient must have “a clear understanding of the risks and benefits of the proposed treatment alternatives or non-treatment.” Id. at 417. In consideration of these requirements, the court determined that Nancy’s conversation was unreliable for the purpose of determining her intent. Id. at 424. On review, the United States Supreme Court held that Missouri could “legitimately seek to safeguard” an individual’s right to refuse life-sustaining treatment “through the imposition of heightened evidentiary requirements.” Cruzan, 497 U.S. at 281.

Largely in response to the Cruzan case, the Missouri legislature created a “Living Will Statute” that allows individuals to exercise the right to refuse treatment by executing a health care directive. Most individuals are familiar with health care directives, also known as living wills, as hospitals now routinely ask about or provide them to patients on admission. Missouri’s “Living Will Statute” is contained in Mo. Rev. Stat. §§ 459.015 to 459.055 (2007). Section 459.055 provides: “Each person has the primary right to request or refuse medical treatment subject to the state's interest in protecting innocent third parties, preventing homicide and suicide and preserving good ethical standards in the medical profession.” Mo. Rev. Stat. § 459.055(1). The statute, however, specifically states that it does not “condone, authorize or approve mercy killing or euthanasia nor permit any affirmative or deliberate act or omission to shorten or end life.” Mo. Rev. Stat. § 459.055(5).

Section 459.015 outlines the formalities for executing a living will. The person must be competent. Mo. Rev. Stat. § 459.015(1). The declaration must be in writing, dated, signed by the person making the declaration, or by another person in the declarant's presence and by the declarant's expressed direction, and if not in the declarant's handwriting, then signed in the presence of two or more witnesses at least eighteen years of age. Id. Once executed, the declarant has the duty to notify the physician, and can request that the declaration be placed in his/her medical chart. Id.

The Missouri Bar provides its own example of a health care directive. “Durable Power of Attorney for Health Care and Health Care Directive,” The Missouri Bar (2005). In contrast with the example provided in the Living Will Statute, the Bar’s directive is more specific about when and what type of life-sustaining treatment can be withdrawn. The patient can demand a list of life-prolonging treatment be withheld or withdrawn—including artificial nutrition, and hydration and respirator—if the patient is “persistently unconscious” or has a terminal illness. The formal requirements set forth in the Living Will Statute still apply, in that the patient must sign the directive in the presence of two witnesses.

The limits of the Living Will Statute have not been fully tested by Missouri courts. Although the trial court in Cruzan examined whether the statute was constitutional, the Missouri Supreme Court on review determined that it did not apply to the circumstances. Cruzan, 760 S.W.2d at 421. First, Nancy did not execute a living will. Id. In addition, the statute was enacted before the trial court’s review, but after Nancy’s accident. Accordingly, the Missouri Supreme Court specifically limited its holding to “those instances in which the person receiving the life-sustaining treatment is unable to render a decision by reason of incompetency.” Id. at 424.

Liability for medical malpractice does not necessarily stop at the individual who performed the act or omission. Agency principles, including the respondeat superior and borrowed servant doctrines, broaden the liability spectrum to include hospitals, health care corporations, and the independent physicians who employ those individuals. The purpose of this section is to explain the role of these agency principles in hospital corporate liability and institutional negligence according to Missouri law.

The doctrine of respondeat superior imposes vicarious liability on hospitals and health care corporations for the acts or omissions of physicians when the physicians are their employees or agents, and when those acts or omissions are committed within the scope of the employment or agency. See Brickner v. Normandy Osteopathic Hosp., 746 S.W.2d 108, 115 (Mo. App. E.D. 1988); see also Eichelberger v. Barnes Hosp., 655 S.W.2d 699, 706 (Mo. App. E.D. 1983); see also Keller v. Missouri Baptist Hosp., 800 S.W.2d 35, 38 (Mo App. E.D. 1990); see also Scott v. SSM Health Care St. Louis, 70 S.W.3d 560, 566 (Mo. App. E.D. 2002). An agency relationship requires two elements: (1) the principal expressly or impliedly consents to the agent’s acting on the principal’s behalf, and (2) the agent is subject to the principal’s control. Scott, 70 S.W.3d at 566; see also M.A.I. 13.06 (2005). Within the context of a hospital-physician relationship, “the primary focus is on whether the hospital generally controlled, or had the right to control, the conduct of the doctor in his work performed at the hospital.” Id. at 566-67. The same analysis applies to those instances where a corporation, rather than hospital, employs a physician. Keller, 800 S.W.2d at 38.

Parties seeking to establish an agency relationship need not prove that the hospital or corporation had control over the performance of the alleged negligent act or omission. Id. at 37; see also Brickner, 746 S.W.2d at 115. Although physicians are free to exercise independent medical judgment, “the mere fact that a physician retains… independent judgment will not preclude a court from finding the existence of an employer-employee or principal-agent relationship between a hospital and physician.” Missouri courts reject the notion that this relationship cannot be found “merely because the hospital does not have the right to stand over the doctor’s shoulder and dictate to him or her how to diagnose and treat patients.” Id.

Keller, 800 S.W.2d at 38; Scott 70 S.W.3d at 567-68. For example, in Keller v. Missouri Baptist Hosp., the Missouri Court of Appeals found an employer-employee relationship between a physician and health care corporation under the following circumstances: (1) the physician signed a non-compete clause, (2) the corporation paid the physician a fixed hourly rate, (3) the corporation required the physician to work an average of 48 hours per week, (4) the corporation retained the ability to terminate the physician, and (5) the corporation obtained insurance for the physician’s work. 800 S.W.2d at 38-39. In Scott v. SSM Healthcare St. Louis, the court of appeals also found an employer-employee relationship between a hospital and physician when the evidence established the hospital did the following: (1) set the medical standards for the physician’s services, (2) determined the requisite qualifications, (3) set prices for the physician’s services, (4) required routine reports from the physician, (5) maintained the right to terminate the physician, (6) provided all of the physician’s equipment, and (7) required the physician to use particular types of equipment. 70 S.W.3d at 567.

As a general rule, a party “who contracts with an independent contractor is not liable for the negligent acts of the independent contractor.” Brandt v Missouri Pac. R.R. Co., 787 S.W. 2d 781 (Mo. App. E.D. 1990). There are two exceptions to the general rule. First, statutes and regulations can preclude delegation of certain duties. See Kelly v. St. Luke’s Hosp., 826 S.W.2d 391, 394 (Mo. App. W.D. 1992). Second, a party may not contract away potential liability for inherently dangerous activities. Id. In Kelly v. St. Luke’s Hospital, the plaintiffs alleged that the emergency room physician, an independent contractor, failed to diagnose a dissecting aorta. Id. at 392. The plaintiffs argued that the hospital was liable for the physician’s failure to diagnose on the basis that the operation of an emergency room involved a non-delegable duty. Id. at 394. The trial court struck that cause of action and the court of appeals affirmed, holding that operation of the emergency room involved neither a non-delegable duty nor an inherently dangerous activity. Id. at 396.

Notwithstanding the above, it is clear that a hospital can be held liable for the negligence of an independent contractor physician on the basis of apparent agency. Apparent authority exists in the context of medical malpractice cases “where a person of ordinary prudence…acting in good faith, and giving heed not only to opposing inferences but also to all restrictions…brought to his notice, would reasonably rely” on the agent. Porter v. Sisters of St. Mary, 756 F.2d 669, 674 (8th Cir. 1985), quoting Jeff-Cole Quarries, Inc. v. Bell, 454 S.W.2d 5, 13 (Mo. 1970); see also Wynn v. McMahon Ford Co., 414 S.W.2d 330, 336 (Mo. App. 1967) (belief must be reasonable and prudent). Typically, hospitals retain contractors to staff certain departments, such as the emergency room and radiological services. The patient is not aware of the status of the physician. The patient does not choose the physician. Rather, the hospital supplies a physician to the patient. Under these circumstances, according to the doctrine of apparent authority, the hospital is not necessarily absolved from liability for the acts and omissions of the physician, even if that physician is an independent contractor. See Porter, 756 F.2d at 674.

The negligent supervision of a physician/employee is another potential area of liability for hospitals. In contrast with vicarious liability, negligent supervision is a general tort-law principal that stems directly from the hospital’s breach of a particular duty, as opposed to the employee’s breach. In general, an employer is subject to liability for harm to a third party caused by an employee’s conduct if the harm was caused by the employer’s negligence in selecting, training, retaining, supervising, or otherwise controlling the employee. Restatement (Third) of Agency § 7.05(1). As with other torts, the risk of harm must be foreseeable. See Id. at cmt. d.

Medical malpractice cases in Missouri relating to negligent supervision involve the supervision of physicians over hospital employees, rather than the supervision of a hospital over the physician. See Dine v. Williams, 830 S.W.2d 453 (Mo. App. W.D. 1992) (holding plaintiffs had to use expert testimony to establish negligent supervision of an attending physician in his supervision of a resident physician); see also Burns v. Owens, 459 S.W.2d 303, 305 (Mo. 1970) (en banc). The shortage of cases involving the supervision of physicians by hospitals makes sense, given the nature of medical malpractice actions. If the negligent actor is a hospital employee, and assuming the negligence was committed within the course and scope of the employment, then the hospital is vicariously liable for the negligent act, regardless of any negligent supervision. If, on the other hand, the negligent actor is not an employee or agent, the negligent supervision theory is inapplicable. The Missouri Court of Appeals recently rejected the notion that employers are liable for the negligent supervision of independent contractors. Lonero v. Dillick, 208 S.W.3d 323, 328 (Mo. App. E.D. 2006). The negligent supervision theory is more practical for injured parties in cases where an employer’s liability through respondeat superior is questionable, such as when the negligent act is outside the scope of employment. See Gibson v. Brewer, 952 S.W.2d 239, 243-46 (Mo. 1997) (plaintiff alleged employer negligently supervised employee who assaulted plaintiff); see also Reed v. Kelly, 37 S.W.3d 274 (Mo. App. E.D. 2000) (plaintiff alleged employer negligently hired employee who assaulted plaintiff).

While negligent supervision and respondeat superior are available to a party seeking to impute liability to an employer, that party may not present evidence of both theories at trial. Missouri adopted the view held in a majority of jurisdictions, that once an employer has admitted respondeat superior, the plaintiff cannot proceed against the employer on any other theory of imputed liability. State ex rel. McHaffie v. Bunch, 891 S.W.2d 822, 826 (Mo. 1995) (en banc) (holding that because the agency relationship was admitted, it was error for the trial court to permit a separate assessment of fault to the employer based on negligent entrustment or negligent hiring). The rationale is that once the employer has admitted it is vicarious liable for an employee’s action, additional evidence related to another liability theory “serves no real purpose,” unnecessarily expends the “energy and time of courts and litigants,” and introduces “potentially inflammatory evidences” which is “irrelevant to any contested issue.” Id.

The borrowed servant doctrine provides hospitals and corporations with a possible escape from liability for the negligent acts or omissions of their own employees. This defense is typically asserted by hospitals seeking to shift liability to an independent contractor-physician. As a general rule, however, a physician is not liable for the negligence of hospital employees, including nurses, attendants, or interns, “unless they perform work or duties for him under his supervision and control, or unless he is negligent in permitting them to attend the patient, or unless the negligent acts were performed under conditions where, in the exercise of ordinary care, he could or should have been able to prevent their injurious effects and did not do so.” Burns, 459 S.W.2d at 305. “The mere fact that a physician surgeon gives instructions to a hospital employee does not render the physician or surgeon liable for negligence of the hospital employee in carrying out the instructions.” Id., quoting 70 C.J.S. Physicians and Surgeons § 54.

To take advantage of the borrowed servant doctrine, the hospital or corporation must show the following: (1) consent on the part of the employee to work for the special employer (the physician), (2) actual entry by the employee on the work of the special employer pursuant to an express or implied contract to do so, (3) power of the special employer to control the details of the work to be performed and to determine how the work shall be done and whether it will stop or continue, and (4) a total relinquishment of any right of control over the conduct of the employee insofar as the particular work is concerned. Brickner, 746 S.W.2d at 112. The fourth element presents the most difficulty for those parties seeking to shift the liability to the special employer. In Brickner v. Normandy Osteopathic Hosp., the plaintiff alleged a surgical resident at defendant’s hospital failed to diagnose his testicular cancer during an exploratory surgery. 746 S.W.2d at 111. The hospital argued that the resident was a borrowed servant of the surgeon who oversaw the surgery. Id. at 112. The evidence showed that although the supervising surgeon exercised authority and control during the surgery, the hospital controlled the resident’s training program, including the hours he worked. Id. at 114. The Missouri Court of Appeals held that because the resident was not “solely under the control of and serving only the interest of [the supervising surgeon] during surgery,” the hospital was not insulated from liability under the borrowed servant doctrine. Id. at 115. The court noted, “[A] man can serve two masters simultaneously, provided the interest of the masters are not so adverse and antagonistic that the intent to serve one necessarily excludes an intent to serve the other.” Id. at 113.

It is important to note that the lack of a master-servant relationship between a physician and hospital employee, respectively, does not necessarily insulate the physician from liability for the negligent acts of the hospital employee. When the physician actively participates by either “expressly ordering or directing the act which proves to be negligent or wrongful,” the physician is liable to the injured individual regardless of any agency relationship. Campbell v. Preston, 379 S.W.2d 557, 561-62 (Mo. 1964). In this scenario, vicarious liability is not the issue since the physician is a participant in the actual negligent act asserted by the plaintiff. Id.