In 2008, I reviewed all the medical futility lawsuits that I could find. I looked at both ex ante cases (for injunctions) and ex post cases (for damages). With respect to the ex post cases, I concluded that the single most successful theory has been for emotional distress (IIED or NIED).
Consistent with my findings, in late 2013, the Connecticut Superior Court denied Yale New Haven Hospital’s motion to dismiss an intentional infliction of emotional distress (IIED) claim brought by the family of Helen Marsala. (I blogged about this case almost exactly a year ago, when I spoke at Yale.)
In Marsala v. Yale, the family alleges that clinicians removed Helen’s ventilator without consent and over their objections. The court ruled that a jury could find that “terminating a patient’s life support with an awareness of her contrary wishes constitutes unacceptable behavior and would readily be considered extreme and outrageous.”
But while the family defeated Yale’s motion to dismiss, it could not defeat Yale’s motion for summary judgment. Connecticut law apparently does not support “bystander” IIED claims. This week, Yale successfully moved for summary judgment‘ on the IIED claim. The case is still proceeding on a number of other counts.