The author focuses on the failure of the courts to provide a remedy for the right to refuse medical treatment. Health care providers, for a number of reasons, often ignore patient requests to forgo certain life-extending medical procedures. The courts have generally allowed medical professionals complete discretion in deciding whether to honor patients' requests. When patients
or their estates sue health care providers for violation of the right to refuse treatment, courts have refused to award damages. By failing to provide a remedy, the courts effectively make the right a meaningless one. While acknowledging the importance of physician autonomy, the author argues that the courts' one-sided approach to this dilemma is unsound. To implement
the right, the author advocates and describes a new approach under which courts would consider not only the special context in which this issue generally arises but also the important autonomy interests inherent in the right to refuse medical treatment.
Malloy, S. Elizabeth, "Beyond Misguided Paternalism: Resuscitating the Right to Refuse Medical Treatment" (1998). Faculty Articles and Other Publications. 41.