SUDEP and legal issues
[Part 3: Challenges; Wannamaker BB & Hanna J]
SUDEP is a dreaded and final phenomenon which is not infrequent in persons with epilepsy, is poorly understood, sometimes difficult to conclusively confirm, and only questionably preventable. All of these circumstances create a perfect climate for litigious activity. Litigation involving SUDEP has been initiated in the US over the last 15 years and searches on the Internet evidence increasing interest by lawyers in this field. This is in contrast with the UK legal system, where private litigation appears less active and where it is more common for government to initiate proceedings and involve judicial officers to make recommendations in the public interest (Hanna & Wannamaker, 2014).
The primary focus of litigation in the US has employed SUDEP in very different ways. Details of some legal cases are presented in book chapters by Leestma (2011) and by Wannamaker (2011). Illustrative cases include issues of failure to inform, poor documentation, injury causing epilepsy then SUDEP and protection of the innocent by sound professional education about epilepsy including SUDEP.
Case 1. A patient discontinued her medication without advice because of side effects. SUDEP occurred. Her long-time physician was sued by her husband who alleged that the physician had failed to advise his wife of the possibility SUDEP if off medication. At mediation the physician remained steadfast in his position of verbal communication and was dismissed without trial. Careful documentation by the physician may have averted this allegation.
Case 2. A 34 year old woman wanted to become pregnant and was 9 years seizure free. With counsel of her neurologist a plan of medication withdrawal was nearly complete when SUDEP occurred. Risk of SUDEP was not mentioned in the medical chart. The defense attorney established that the victim had died of SUDEP and also that the cause of SUDEP was unknown. The defense then argued that if the cause of a medical condition is unknown, then the physician cannot legally be held responsible. The jury verdict was in favor of the physician. Parenthetically, this case would not meet the bar for heightened SUDEP risk (high seizure frequency).
Case 3. A burglar assaulted a woman who resided on a US military reservation. She survived brain injury yet was left with posttraumatic epilepsy. Several years later she died of SUDEP. The assailant had been incarcerated for another crime. He confessed to the burglary in order to obtain sanctuary in another and safer prison. He was unaware of her death. US federal authorities charged the man with murder based on the fact that he induced injury which caused epilepsy and which eventually led to her death. Although convicted of murder, a technicality on appeal reversed the court’s conviction. This case brings up extended possibilities when someone is injured and the victim develops epilepsy.
Case 4. A 48 year old woman was found dead in bed at home. Her husband of 30 years was charged with murder by suffocation. She had refractory epilepsy from early childhood. There was no motivation for the husband to murder his wife. The expert for the defense educated the jury that her death could readily be explained by SUDEP. The jury found the husband not guilty.
All patients with epilepsy should be provided information about SUDEP and other risks for injury. Parents want to know (Bellon et al., 2014; RamachandranNair et al., 2013; Stevenson et al., 2014). A physician may reasonably recognize reasons that SUDEP information should not be provided to a specific patient. In either case, the physician is wise to document his/her action, advice and plans in the medical records.
The most advantageous patient position is to have informed and communicative healthcare providers. The safest position for our patients includes both being well informed about SUDEP and its risks factors as part of the conversation about safety and epilepsy. Hopefully, this guidance will limit epilepsy-related deaths, future grief, and potential litigation through reasoned treatments and best medical practices, clear understanding and avoidance of putative risk factors.
Braxton B Wannamaker, Clinical Professor, Medical University of S. Carolina & Veterans Admin. Med. Centre, Charleston, SC, USA
Jane Hanna, Chief Executive, SUDEP Action, UK
Reviewed May 2018; Original Dec 2014
How to cite:
Wannamaker BB & Hanna J. SUDEP and legal issues. In: Hanna J, Panelli R, Jeffs T, Chapman D, editors. Continuing the global conversation [online]. SUDEP Action & SUDEP Aware; 2018 [retrieved day/month/year]. Available from: www.sudepglobalconversation.com.