In its August 21, 2023 Memorandum Decision, the Court of Appeals of Indiana (“Indiana Appellate Court”) held: “Because Stephen—an adult child—had coequal decision-making authority and because Stephen consented to placement of a feeding tube, we conclude Provider could not be liable for battery by attempting to place a feeding tube after Stephen provided consent. In short, Stephen’s unilateral consent was valid under the circumstances and the statutes then in effect, vitiating the prior refusal of further care for Joyce.”
Background Facts
The Estate of Joyce Gillette along with Joyce’s daughter, Kathryn Gillette, (collectively, “Gillette”) filed a lawsuit against a hospital and other medical providers concerning treatment rendered to ninety-one-year-old Joyce during a hospital stay prior to her death, when Joyce was unable to speak. The complaint focused on whether the defendants committed battery by providing life-prolonging care to Joyce—care rendered (1) when Joyce’s living will had
do-not-resuscitate (“DNR”) provisions that only applied under specific circumstances and (2) one of Joyce’s adult children consented to the care, but only after he was outvoted in a family-wide vote to withhold additional care.
Medical Battery
When a plaintiff claims there was a complete lack of consent to medical care, the claim is for medical battery. Premised on a complete lack of consent, a claim of medical battery differs from a claim the provider failed to obtain the patient’s informed consent. Whereas a battery claim does not involve a standard of care—instead hinging on a failure to obtain any consent—a claim there was no informed consent is instead a specific form of negligence for breach of the required standard of professional conduct.
Gillette alleged that the defendants are liable for giving care to Joyce after refusal of the care. According to Gillette, the designated evidence showed a valid refusal because the DNR provisions in the living will applied. Gillette further asserted that, even if the DNR provisions did not apply, there was a valid refusal of care because of designated evidence the family voted and decided to refuse further care—a decision that controlled despite any ensuing conversation with Stephen.
The issue on appeal concerned the applicability of the DNR provisions in Joyce’s living will and the validity of the adult son’s consent tendered after the family-wide decision. The Indiana Appellate Court concluded that there is no genuine issue of material fact that under the terms of the Indiana’s Health Care Consent Act (“HCCA”) then in effect (1) there were unmet conditions precedent to the applicability of the DNR provisions in the living will and (2) Joyce’s adult son was statutorily empowered to consent to further care, thereby affirming the order granting summary judgment to the defendants.
The Indiana Appellate Court explained: “Putting aside whether the statute confers decision-making authority to a grandchild, we agree with Gillette the statute then in effect provides equal decision-making authority to all listed individuals. Moreover, although Gillette focuses on an initial decision communicated by family members, we discern no statutory provision directing a medical provider to follow only the first decision about life-prolonging care, without regard for the possibility an authorized person might change their mind and later give or withdraw consent.”
The Indiana Appellate Court warned in a footnote, however, “Because this case involves a prior version of Indiana Code Section 16-36-1-5, caution should be exercised in prospectively applying the holding.”
Source Gillette v. Franciscan Alliance, Inc., 22A-CT-1625.
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