Living Wills: Challenging a Physician's Findings

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Michael L. Laribee, Esq.

Living wills allow competent adults to state preferences for life-sustaining treatment (e.g., ventilators, feeding tubes) under specific conditions.  In Ohio, a living will becomes operative when two physicians certify that the patient is either terminally ill or permanently unconscious and unable to make informed medical decisions. If, in light of the patient’s condition, the attending physician determines that life sustaining treatment should be withheld or withdrawn, they must document this in the patient’s medical record and make a good-faith effort to notify those individuals named in the living will as contacts.

But what happens if the patient’s family or loved ones disagree with the physicians’ medical opinion?  Ohio law provides a formal objection process to challenge the physicians’ findings.  The challenger must notify the attending physician of the objection within 48 hours and file a complaint in probate court within two business days. The complaint must identify the patient, state the relationship, and specify which determination is contested. Typical grounds include:

•    Incorrect medical findings (e.g., diagnosis of terminal or permanent unconscious status);
•    Wrong assessment of the patient’s decision-making capacity;
•    Reasonable possibility that patient will regain capacity to make decisions;
•    Proposed action not permitted by the living will;
•    Living will executed under duress, fraud, or undue influence; or
•    Living will does not comply with Ohio statutory requirements.

The probate court must serve all interested parties with a copy of the complaint within three days after its filing and must conduct a hearing at the earliest possible time, but no later than the third business day after service has been completed.  Immediately following the hearing, the court must issue a written order, which may:

•    Uphold the living will and physicians’ findings;
•    Direct reevaluation of the patient’s condition or capacity; or, 
•    Declare the living will invalid and prevent its implementation.

Disputes involving end-of-life care are legally complex and deadlines to challenge doctors’ findings under a living will are quite short.  If you are presented with such a case, it is wise to consult with a trusted probate attorney to assist you.  Laribee Law, LLP is here to assist you. 

Michael Laribee is a partner in the Medina law firm of Laribee Law, LLP.  This article is intended to provide general information about the law. It is not intended to give legal advice.  Readers are urged to seek advice from an attorney regarding their specific issues and rights.