$10 Million in Damages Sought : Malpractice Allegation Is Added to Bouvia’s Lawsuit

Attorneys for quadriplegic Elizabeth Bouvia amended their lawsuit against Los Angeles County on Tuesday to seek $10 million in medical malpractice damages against a Lancaster hospital that force-fed Bouvia and the hospital bioethics committee that approved the procedure.

The motion marked an important new turn in a case that has helped to establish the rights of patients to refuse medical treatment both because it seeks to assess civil damages and for the first time proposes to hold hospital ethics committee members individually liable for their recommendations.

Bouvia, a 29-year-old cerebral palsy victim who gained national attention when she announced plans to starve herself to death in 1983, was admitted to High Desert Hospital in December, 1985.

Expressing concerns that her weight was dipping dangerously low, doctors there inserted a nasogastric feeding tube about a month later over Bouvia’s protests and despite her assurances that she no longer planned to refuse food.

Hospital officials said they were acting on recommendations of their ethics committee and on the rulings of two Superior Court judges who had refused Bouvia’s legal appeals for removal of feeding tubes. The tube was finally removed in April of this year when a state appellate court upheld Bouvia’s right to refuse force feeding.

Bouvia subsequently won a court ruling preventing doctors from discontinuing the morphine injections that she said were the only way to control the painful muscle spasms that are a byproduct of her disease.

Attorneys for Los Angeles County, which runs High Desert Hospital, argued vigorously Tuesday against allowing the amended malpractice complaint, noting that Bouvia had pledged to drop her legal fight once she had won the case for removal of the nasal feeding tube.

“In view of the (prior trial court) decisions in this case, the doctor’s decision to insert a nasogastric tube was necessary and appropriate to prevent a life-threatening situation,” said attorney Peter Osinoff, a specialist in malpractice litigation hired by the county to represent the defendants in the case.

“In view of that, now to come back once they’ve established that she does have a constitutional right, at least in the Court of Appeal (to refuse treatment), to come back and say now she’s entitled to damages seems to me inappropriate,” Osinoff said.

Superior Court Judge Jerry Fields ruled Tuesday that Bouvia should at least be allowed to file a lawsuit for malpractice. But a state appellate court recently ruled that the family of a Glendale man who claimed a hospital wrongfully refused to let him die was not entitled to damages.

But the attorney on that case and the Bouvia case, Richard Scott, said the court based its decision on the fact that the law regarding patients’ rights to refuse treatment was unclear when that patient, William Bartling, sought to be removed from a ventilator.

But the law was very clear, in part because of the Bartling case, when Bouvia’s physicians forced her to accept the feeding tube, Scott said.

Potentially more controversial is the decision to name the 14 members of High Desert Hospital’s bioethics committee as defendants in the lawsuit--the first time in the nation that such a committee has been sued, according to medical and legal experts.

Hospitals throughout the country have been moving rapidly in the past few years to refer many of their thorniest treatment decisions to ethics committees, in part because of doctors’ increasing concerns over legal liability as new technology puts life-or-death decisions directly into their hands.

An estimated 50% to 75% of all hospitals have some form of ethics committee, compared to about 1% in 1981.

‘It’s Irresponsible’

“This case is absolutely unique, and, as a matter of fact, I think it’s irresponsible,” said Jim Ludlum, senior counsel for the California Hospital Assn. who said most ethics committees are designed to operate in an advisory, rather than decision-making, role.

“I think we are all the losers for this to happen,” said Dr. Richard Lewis, a physician at St. John’s Hospital in Santa Monica who recently sponsored a seminar on bioethics issues.

“In almost all cases, these are volunteer people--doctors, nurses, clergymen, social workers--who get together and spend a lot of time trying to do what they think is the right thing,” Lewis said. “If they’re going to operate with the specter of somebody looking over their shoulder that maybe they’re going to get nailed in some suit, that cloud has to impact on their behavior.”

A. R. Fleischman, administrator at High Desert Hospital, said the suit “could be a very dangerous precedent to the entire committee structure under which hospital staffs govern themselves.” But Fleischman and members of the ethics committee declined any further comment.

Attorney Scott said Bouvia’s physician got approval from the ethics committee before inserting the painful feeding tube into his client and threatening to remove her from the only drug capable of easing her pain.

“The reason (ethics committees) haven’t been involved in litigation up until now is that they much more frequently come to the right decision. As near as I can tell, they didn’t make a right decision about Bouvia at High Desert Hospital, ever,” Scott declared.

“If it turns out that members of the ethics committee didn’t do anything wrong, fine,” added Scott, who is also a physician.

‘Be Held Accountable’

“I’m not against ethics committees. I think they’re helpful, and I think more hospitals should have them. But I don’t think that an ethics committee should have any right to make or inflict decisions on people and not be held accountable for it any more than anybody else.” he said. “What is exactly so holy about an ethics committee?”

Bouvia, meanwhile, has been transferred to County-USC Medical Center, where she has lost weight but continues to eat voluntarily, her attorneys said. Her morphine doses have been increased several times as she becomes more addicted to the drug.

One of her attorneys, Jacqueline Scheck, said the main effort in recent months has been to find a private facility or apartment to which she can be transferred.

Suicide, while she is in the “cold environment” of a county hospital, remains “an option she holds in abeyance,” Scheck said. “She wants to go out with some dignity.”