Tracey v. Cambridge University Hospital - No Guidance on Duty to Consult Patient before Entering DNR

Last
week,  Mrs. Justice Nicola Davies ruled in Tracey v. Cambridge
University Hospital.  I have posted a copy of the decision
here.

Janet Tracey was not consulted before a "do not
resuscitate" notice was placed on her medical records.  But Justice
Davies held that the failure to inform or involve Janet had
"minimal causative effect," as the notice was cancelled five days
later when her family objected, and not acted upon.  The judge also found
that a second notice, which followed three days afterwards and two days before
Mrs Tracey's death, was put in place with the agreement of her family.

Justice Davies ruled that it would be neither "appropriate nor
proportionate", in the light of those limited findings of fact, to have a
judicial review hearing on the legal issues.  She refused permission to appeal but lawyers for Mrs Tracey can
pursue the application directly with the Court of Appeal.  Plaintiffs want a
judicial review to clarify whether there is a legal duty to inform patients
with capacity whether a DNR has been placed on their notes and whether they
have any right to be consulted about it.

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Legality of VSED - VRFF

I wish I had used this scene from Hamlet Act V, scene I in my argument for why VSED does not constitute assisted suicide.

GRAVEDIGGER

Is she to be buried in Christian burial when she willfully seeks her
own salvation?            

OTHER

I tell thee she is. Therefore make her grave straight. The crowner hath
sat on her and finds it Christian burial.

GRAVEDIGGER

How can that be, unless she drowned herself in her own defense?

OTHER

Why, ’tis found so.

GRAVEDIGGER

It must be se offendendo. It cannot be else. For here lies the point:
if I drown myself wittingly, it argues an act. And an act hath three
branches—it is to act, to do, to perform. Argal, she drowned herself wittingly.

OTHER

Nay, but hear you, Goodman Delver—

GRAVEDIGGER

Give me leave. Here lies the water. Good. Here stands the man. Good. If
the man go to this water and drown himself, it is, will he nill he, he goes.
Mark you that. But if the water come to him and drown him, he drowns not himself.
Argal, he that is not guilty of his own death shortens not his own life.

OTHER

But is this law?

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Career Guide for the Future Healthcare Attorney

I just posted my new seven-page article "Career Guide for the Future Healthcare Attorney."  I have been expanding this for a more exhaustive piece to be submitted in March.  So, I would greatly appreciate any criticism, comments, suggestions.  Here is the abstract:



I have two objectives in this Article. First, I will outline the wide range of career paths available to you as a health lawyer. Second, I will describe the experience and credentials that you should acquire to make yourself a competitive candidate for these jobs.



The plethora of health law career opportunities can be roughly grouped into twelve categories. As an entry-level lawyer, you could (1) clerk for a judge or (2) complete a health policy fellowship. As an attorney, you could do either (3) litigation or (4) transactional work for healthcare clients. Or you could practice in the particularly fast-growing areas of (5) public health law or (6) elder law. 



But I hasten to add that not all health law jobs involve working as an attorney or lawyer. Law school is excellent training for legal non-attorney careers in: (7) compliance, (8) regulatory affairs, (9) risk management, (10) clinical ethics consultation, (11) legal nurse consulting, and (12) dispute resolution.

Most of the strategies for success for aspiring health lawyers are the same are those for any other law student. I have taken the liberty to customize these strategies for the future healthcare attorney. I have grouped my law school strategies for success into five categories: (1) work experience, (2) moot courts, (3) writing, (4) networking, and (5) coursework.

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Obama Pushing Grandma off Cliff

I don't know how I missed this earlier this year.  Mean, unfair, and inaccurate.  But clever.

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Health Law & Bioethics before the Minnesota Supreme Court

There are a number of interesting health law and bioethics cases now pending before the Minnesota Supreme Court and the Minnesota Court of Appeals.  I will review these at a lunchtime workshop on Tuesday, January 29, 2013.



1.  State v. Melchert-Dinkel.  William Melchert-Dinkel is a former Minnesota nurse convicted of going online and encouraging two people to kill themselves.  This week, Melcher-Dinkel filed his opening brief the Minnesota Supreme Court, arguing that he did not directly participate in the suicides, was merely supporting his alleged victims, and had no influence on their actions.  



2.  State v. Smith.  Eddie Cortez Smith was convicted of criminal vehicular homicide and sentenced to 10 years in prison.  Smith is arguing to the Minnesota Supreme Court that he was not responsible for the death because his victim's "do-not-resuscitate" order kept her from potentially life-saving medical care.



3. Dickhoff v. Green.  A physician failed to diagnose Jocelyn Dickhoff's cancer.  But even if it had been timely diagnosed, Jocelyn probably would still have had the same result.  The doctor's negligence made it more likely that she would be injured.  It deprived Jocelyn of an opportunity of a better outcome.  The Minnesota Supreme Court may join a growing number of states that permit plaintiffs to recover where they can establish  only "lost chance" even if not "but for" (more probable than not) causation.  



4.  In re Tschumy.  The Hennepin County Probate Court decided that court-appointed guardians do not have the authority to consent to withhold or withdraw life-sustaining treatment.  The court must specifically authorize such decisions.  The Minnesota Court of Appeals is concerned that the appeal is untimely and moot (Tschumy has died).  But if they reach the merits, they will hopefully clarify the scope of guardian authority for health care decisions.

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Minnesota v. Final Exit Network (Part II)

I wanted to follow-up from my brief post, earlier this week, about Tuesday's motions hearing in Minnesota v. Final Exit Network (Dakota Cty., Minn.).  The hearing has since also been covered in the local and national media.  Here are some highlights from the hearing:



Rivas:  Explained how the prohibition on advising and encouraging suicide is not only content-based but also viewpoint based.  For example, a law banning billboards over 20 feet would be content neutral.  A law banning advertising on billboards would be content based.  A law banning gun advertising would be both content based and viewpoint based.  Here, Minn. Stat. 609.215 focuses on assisted suicide specifically and in only one direction.  There is no prohibition on talking someone out of suicide.  



It appears the state conceded this much.  That means the statute is presumptively unconstitutional.  The state has the burden of establishing that the statute passes "strict scrutiny" analysis, that the state has a compelling state interest that is narrowly tailored.  That seems like a tall order.  While preventing suicide is a compelling state interest, including speech is not necessary to that objective.  



Lundquist:  Explained how the state concedes the book Final Exit is not illegal.  But then how is the line drawn?   Is it okay to sell the book to 100 people but not to just 1 person?  Is it okay to read the book to 100 people but not to just 1 person?  



Judge Asphaug:  Asked about a Kushner play at the Guthrie Theatre where a character thought he had a terminal illness.  Another character gave explicit instructions on stage, with props.  She asked: "Could the playright and actors be prosecuted for this?"  The state responded that such speech lacks the intent to affect an individual person.

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CMS Signals Renewed Focus on Advance Directives

This North Carolina law firm caught my eye with this headline: "CMS Signals Renewed Focus on Advance Directives" in one of its newsletters.  Here is the key language from the newsletter summarizing the impact of this CMS Memo:



On September 27, 2012, CMS issued revised surveyor guidance in Appendix PP to the state operations manual, further interpreting F Tag 155, which is based on 42 Code of Federal Regulations section 483.10(b)(4). The revised guidelines became effective on November 30, 2012.  The regulation itself has not changed, nor has the Federal Patient Self- Determination Act on which the regulation and the surveyor guidance are based. However, in this revised guidance in Appendix PP, CMS reaffirms its commitment to resident choice in end-of-life care and its direction to surveyors to assess providers’ compliance with that right in annual recertification and complaint surveys.



CMS describes four key expectations of SNFs in the revised guidance:

1. To establish and maintain policies and procedures governing the right of choice in end-of-life health care decision-making;


2. To inform and educate residents, or their legal surrogate, about end-of-life choices and the facility’s policies regarding how residents exercise these rights;


3. To help residents exercise these rights by creating advance directives (living wills, health care powers of attorney or other advance directives recognized by state law); and


4. To incorporate residents’ choices into treatment, care and services, specifically including initial, ongoing and revised care planning as a resident’s health care status changes over time.

CMS also (a) spells out the elements that must be addressed in each SNF’s policies and procedures on end-of-life care, (b) defines the normal survey sample for end-of-life issues, and (c) contains examples of deficiency categories applicable to violations of these expectations.  

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Nursing Home Inspect Tool for Researching Deficiency Reports

ProPublica has launched a great new tool that you can use to compare nursing homes in a state based on the deficiencies cited by regulators and the penalties imposed in the past three years.  You can search more than 58,000 nursing home inspection reports to look for trends or patterns. ProPublica has also prepared a guide for making the most of this tool.

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Minnesota v. Final Exit Network - Omnibus Motions Hearing

This morning, I attended the omnibus motions hearing in the Dakota County, Minnesota criminal case against the Final Exit Network and five individual FEN defendants.  The primary defense motion attacks the constitutionality of the statute under which the defendants are charged, Minn. Stat. 609.215.



That statute provides:  "Whoever intentionally advises, encourages, or assists another in taking the other's own life may be sentenced to imprisonment for not more than 15 years or to payment of a fine of not more than $30,000, or both."  



While most states criminalize assisted suicide, they limit the scope of that prohibition to material assistance.  Minnesota is one of just five states that extends the prohibition to mere "advising."  FEN, through its regular counsel Robert Rivas, made a powerful case that this violates the First Amendment.  The prosecutors' opposition was neither cogent nor compelling.  



Judge Asphaug indicated that she would issue a decision in around two or three weeks.  However she rules on the motion (dismissing the indictment or allowing an interlocutory appeal if she denied it), the ruling will probably be immediately appealed, even though the core First Amendment question may soon be addressed by the Minnesota Supreme Court in State v. Melchert-Dinkel.

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National Healthcare Decisions Day - 4 Months to Go

Today marks four months to NHDD 2013 - April 16, 2013.  Continue to spread the word about NHDD, and please encourage others to join by clicking here.  In the spirit of holiday gift-giving, consider a gift to NHDD here.

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Slow Code & No Codes / Medical Futility - Free Webinars

Children's Mercy Bioethics Center in Kansas City has posted a copy of its recent webinar "Slow Codes, Show Codes, and No-Codes: A Debate Between Annie Janvier and William Meadow."

Click here to register for their February, 5, 2013 Debate: "Does the Concept of ‘Medical Futility’ Help Clinicians?"

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Australian Health Minister Calls for Better Informed Consent at End of Life

Australian Federal Health Minister Tanya Plibersek has challenged doctors to better explain to terminally ill patients when treatments become futile.  

Several Australian physicians have recently highlighted the fact that terminally ill patients are undergoing aggressive and uncomfortable treatments even though they are fruitless.  For example, intensive care specialist Peter Saul says some doctors reflect a death-denying Australian culture and offer futile treatment because it is easier than having difficult conversations.



Plibersek said that doctors need to make sure they are acting in their patients' best interests.  "Doctors have to be very sure that what they're doing is what the patient wants and in their best interests. . . .  I would be very disappointed to think that doctors are offering ... treatment, because it's quicker to have the conversation or easier to have the conversation."

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End-of-Life Law & Policy - Video from NYLS Conference

New York Law School has posted a video of all sessions from its November 16, 2012 conference of end-of-life care law and policy.  My talk on medical futility begins at 2:52:00.

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Definition of "Life-Sustaining Treatment" in New Jersey

Last year, New Jersey defined “life-sustaining treatment” as "the use of any medical device or procedure, artificially provided fluids and nutrition, drugs, surgery, or therapy that uses mechanical or other artificial means to sustain, restore, or supplant a vital bodily function, and thereby increase the expected life span of a patient."  N.J. Stat. Ann. 26:2H-131.



This means that physiologically futile interventions do not even qualify as life-sustaining treatment.  CPR for a patient in whom it will not restore circulation is not life-sustaining treatment for that patient, even though the same procedure might be life-sustaining treatment for another patient.



But such a definition also implies that the end of "increasing the expected life span of a patient" is in and of itself a worthy end of medicine.  

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Cuthbertson v. Rasouli - Oral Argument Video

The video of the oral argument before the Supreme Court of Canada in Cuthbertson v. Rasouli, is available here.  I plan to post detailed comments next week.

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Advance Care Planning Lessons from Gunderson Lutheran (NBC Rock Center)

Visit NBCNews.com for breaking news, world news, and news about the economy

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David James - Court Denies Hospital Permission to Stop Life-SustainingTreatment

In May, 68-year-old former
musician David James was admitted to a
British hospital with constipation.  But he went on to develop pneumonia
and became critically unwell.  He has had
a stroke, resulting in damage to the brain and loss of function on his right
side, and he has also had a number of cardiac arrests and suffered kidney
damage.  Clinicians have diagnosed him as in a minimally conscious state.

More recently, the hospital applied to the Court of Protection for
a declaration that, if James’ condition deteriorated, it need
not offer him “futile and burdensome” treatment
(cardiopulmonary resuscitation, renal replacement treatment, or invasive
support for chronic low blood pressure). 

Mr. Justice Peter Jackson refused the hospital's declaration, stating:
 “Although Mr. James’s condition is in many

respects grim, I am not persuaded that treatment would be
futile or overly burdensome or that there is no prospect of recovery.”
 “Although the burdens of treatment are very great indeed, they have
to be weighed against the benefits of a continued existence.”  He added that recovery did not mean a return
to full health but the resumption of a quality of life that James himself would consider worthwhile.

Justice Jackson further observed that doctors had undervalued
the limited quality of life that the patient could still enjoy. He also
noted that James’s medical condition was “fluctuating,” adding that it
would not be right to validate in advance the withholding of the
treatments in all circumstances.  (Liverpool
Daily Trust) (BMJ 2012; 345: e8404)

This case is not surprising.  Many cases (famously Wendland and Martin in the USA, for example) have drawn a sharp distinction between PVS and MCS patients.  Clinicians can usually establish zero quality of life, and thus best interest, to stop LSMT for a PVS patient.  But it is far tougher to do that for an MCS patient.  Even British cases have denied clinician requests to stop LSMT in which severely brain damaged children would still interact with her environment, for example, by smiling at their parents.

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Video Decision Support Tool for CPR Decision Making

In a
new study published in the Journal of Clinical Oncology, researchers
found that showing patients with advanced cancer a video of simulated
cardiopulmonary resuscitation (CPR) improved their understanding of the
intervention and caused more patients to opt against CPR.


The innovative Advance Care Planning Decisions video used
in the study was created by a nonprofit foundation led by physicians who aim to
empower terminally ill and elderly patients and their families to make informed
choices about end-of-life care. These videos are created based on rigorous
research and review from leading medical experts, and are in use at 35 health
systems across the U.S. They improve decisions by overcoming the inability of
patients to envision what CPR and subsequent care on a ventilator entails, as
well as overcoming variability in the quality of physician counseling.

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New Position: Health Law & Policy Fellow and Instructor of Health Law

Saint Louis University Law Center for Health Law Studies Announces a New Position: Health Law & Policy Fellow and Instructor of Health Law



Saint Louis University School of Law is seeking applicants for a full-time Health Law & Policy Fellow and Instructor in Health Law in the Center for Health Law Studies.  This new position is funded through a contract with the Missouri Foundation for Health.  The Fellow will work under the general direction of Professor Sidney Watson.



Health Law and Policy Fellow, Instructor of Health Law,

Center for Health Law Studies, School of Law



The School of Law at Saint Louis University, a Catholic, Jesuit institution dedicated to student learning, research, health care and service, is seeking applicants for a full-time Health Law and Policy Fellow and Instructor in the Center for Health Law Studies. The position is a non-tenure-track faculty appointment at the rank of Instructor. It is funded for two years through a contract with the Missouri Foundation for Health. The Fellow will work under the general direction of Professor Sidney Watson.



The Fellow will prepare and present a variety of legal and policy analyses on priority health access issues identified in collaboration with Missouri Health Care for All, Missouri Jobs with Justice, Missouri Rural Crisis Center and other members of the Missouri health advocates coalition. One emphasis is the creation of “plain language” analysis of legal and policy initiatives related to the Affordable Care Act, Medicaid, federal and state budget discussions, and private insurance reforms including fact sheets, longer briefs and white papers, email alerts, and training materials, including some developed specifically for rural communities and rural stakeholders.



The Fellow will serve as a liaison with national organizations monitoring emerging issues and long-term strategy, providing analysis and translation of information for advocacy coalition members’ use. The Fellow will also provide written and oral testimony at legislative and administrative hearings and assist coalition members in preparing their testimony for such hearings.



The Fellow will also help educate the public about the Affordable Care Act, Medicaid, and other health access and health reform legal and policy issues. He or she will help design and conduct law school courses and community trainings to develop a cadre of law students and community members to present educational programs and create story banks through which people can share their health care experiences. The Fellow will have the opportunity to design and present intergenerational learning opportunities for both law students and volunteer community advocates.



A Juris Doctorate degree is required. Study or experience in health law and policy is also required as is an understanding and appreciation of grassroots health advocacy.



Applications will be considered as they are received until the position is filled. Applications should include a resume and cover letter indicating particular qualifications. Apply online at http://www.slu.edu/jobs/

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VSED - VRFF

I was just informed about two new materials regarding VSED-VRFF as a means to hasten death:  (1) a short manual called Cheat the Nursing Home, and (2) a memoir called Life, Death and Iguanas.



The manual covers some of the basics of VSED.  The memoir, Life, Death and Iguanas, is the story of the life and death of a strong woman who chose to fast until her end rather than endure a living death of Alzheimer’s in a nursing home.  It’s also the story of her three sons, struggling to help her, warring against each other, and finally uniting.  Lastly, it’s the author’s story of depression and loss, with a bittersweet regeneration and growth at the end.  Balancing life with grief, laughter with tears, this book suggests a better way to die—and to live.

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Rasouli Case to be Heard by Supreme Court of Canada on Monday

On Monday, the Supreme Court of Canada will hear oral arguments in Cutherbertson v. Rasouli.  



Interestingly, until 1949, Court’s non-criminal decisions could still be appealed to the Judicial Committee of the Privy Council in England.  The Court is now Canada’s ultimate court of appeal.  



This is the first time a nation's ultimate judicial tribunal has grappled with a medical futility case.  Even better, the issues are framed very crisply.  In typical futility cases, the core "Who Has the Right" question gets substantially obfuscated by legal framing into causation, procedural, and other issues.

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In re Kenny Ng - B.C. Court Asked to Order fMRI for PVS Patient

57-year-old Kenny Ng has been in a vegetative state since an automobile accident seven years ago.  His wife Lora wants medical staff at George Pearson Centre to remove his feeding tubes.  (Vancouver Sun)

But Kenny's parents, siblings and relatives have asked B.C. Supreme Court Justice Miriam Gropper to intervene and keep Ng alive in the hope he can benefit from recent neuroscience medical discoveries.  They argue that Kenny may qualify for pioneering treatments by brain researcher Adrian Owen.



Provincial precedent in B.C. endorses the view that life support should be terminated where medical specialists unanimously believe the patient is without awareness or hope of recovery and invasive treatment provided no potential benefit.  Normally, that would be the situation here.  An easy case.  



But the family insists that letting Ng die would be wrong given the startling work in neuro-imaging by Dr. Owen.  That research proves some patients  who have lain in vegetative states for years may be more conscious than we realize.



Most U.S. and Canadian jurisdictions authorize surrogates to withdraw life-sustaining treatment when the patient is PVS.  If the B.C. court overrides Kenny's wife on the grounds that there is still hope for PVS patients, such a decision will be in stark contrast to a huge body of jurisprudence. 

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Besse Cooper, World's Oldest Person, Dies

Besse Cooper, the woman who was listed as the oldest person in the world, has died at the age of 116 in a Georgia nursing home.  



The title of world’s oldest person now belongs to 115-year-old Dina Manfredini of Johnston, Iowa, according to the Guinness World Records.  (ABC News)

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Michigan to Mandate Disclosure of Medical Futility Policies

In October, I observed that a bill was introduced in the Michigan House that would mandate the disclosure of futility policies when they might be applied to minor patients.  A few days ago, HB 6070 was introduced by a different Representative to achieve the same thing.  Here is the key provision:

A HEALTH FACILITY OR AGENCY THAT ADOPTS OR  IMPLEMENTS A FUTILITY POLICY THAT APPLIES TO THE TREATMENT OF A  CHILD FROM BIRTH TO 18 YEARS OF AGE MUST DISCLOSE THAT FUTILITY  POLICY TO THE CHILD'S PARENT OR GUARDIAN WHEN THE HEALTH FACILITY  OR AGENCY IDENTIFIES THE NEED FOR A FORMAL PROCESS TO ADDRESS  CONCERNS OVER THE PROPOSED TREATMENT OF A CHILD. THE HEALTH  FACILITY OR AGENCY MUST, UPON REQUEST OF THE PARENT OR GUARDIAN OF A PATIENT OR PROSPECTIVE PATIENT, PROVIDE A COPY OF THE FUTILITY  POLICY IN PLACE AT THE HEALTH FACILITY OR AGENCY AT THE TIME THE  REQUEST IS MADE. 

The bill also defines the key terms:

"FUTILITY POLICY" MEANS ANY WRITTEN POLICY THAT ENCOURAGES OR ALLOWS A HEALTH FACILITY OR AGENCY EMPLOYEE, OR OTHER MEDICAL PROFESSIONAL WHO PROVIDES CARE TO PATIENTS AT A HEALTH FACILITY OR AGENCY, TO WITHHOLD OR DISCONTINUE TREATMENT FOR A PATIENT ON THE  GROUNDS OF MEDICAL FUTILITY. 

"MEDICAL FUTILITY" MEANS A JUDGMENT THAT FURTHER MEDICAL TREATMENT OF A PATIENT WOULD HAVE NO USEFUL RESULT

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Open Position - Executive Director, New York State Task Force on Life and the Law

The New York State Task Force on Life and the Law is looking for a new Executive Director.  



Requirements:

Superior academic credentials (M.D., J.D., or Ph.D. preferred), demonstrated expertise in bioethics/health policy, and an ability to forge consensus on controversial issues.



Responsibilities: 

The Task Force is a nationally recognized multidisciplinary body whose members are gubernatorially appointed and leaders in law, medicine, nursing, philosophy, and bioethics, as well as patient advocates and representatives of religious communities. The Task Force’s mandate is to develop state policy recommendations on issues related to bioethics. Past reports have addressed policy questions related to end-of-life care, physician assisted suicide, organ transplantation, assisted reproductive technologies, and genetic testing. The Task Force is working on projects related to research with human subjects, ethical issues in public health disasters, and surrogate decision making. The Executive Director’s role is to: strategically facilitate meetings and build consensus on challenging issues and provide guidance to the New York State Department of Health; supervise staff who, together with the Executive Director, conduct legal research and analysis and draft related guidance; provide project oversight for Task Force activities; formulate and revise reports; develop grant proposals, and represent the Task Force to the public. Other related duties as assigned.



I have had the good fortune to know four attorneys who have worked at the NYSTFLL over the past few years.  They are quite impressive and indicate the high caliber of this professional experience.

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Seven Harms from Over-treatment in the ICU

There are at least seven discrete harms from over-treatment in the ICU:

1. Patient - The patient's autonomy is violated, because she is not getting treatment consistent with her preferences and values.


2. Patient - The patient will likely physically suffer from this over-treatment. 


3. Nurses - The nursing staff will likely experience moral distress.


4. Other Patients - The anxiety of the nursing staff can adversely impact their care of other patients.


5. Other Patients - Over-treating patients in the ICU means that other patients in need of that level of treatment will be boarded in the ED or elsewhere, increasing their risks.


6. Other Patients - over-treating can 'incubate' multi-drug resistant infections.


7. Society - Much over-treatment is billed to public payers like Medicare that we pay for but really cannot afford.

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Critical Legal Issues in Alzheimer’s - Free Webinar

Join the American Bar Association (ABA) Commission on Law and Aging and the Administration on Aging (AoA) to talk through what is important for your clients with Alzheimer’s and related dementia.  A free December 12 webinar covers legal issue spotting and finding dementia capable legal assistance and resources.   



Participants will learn about:

• Common legal issues 

• When to seek legal assistance

• Legal issue resources

• Finding dementia capable legal assistance 



Presenters: 

• David Godfrey, Esq., Senior Attorney, ABA Commission on Law and Aging 


• Troy Johnson, MSW, Director of Programs and Services, Nursing Home Ombudsman Agency of the Bluegrass 


• Jane Tilly, DrPH, Office of Supportive and Caregiver Services, Administration on Aging/Administration for Community Living 

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Overtreatment: Making Money from Unnecessary Treatment

The hospital chain, Health Management Associates (70 hospitals in 15 states) is accused of pressuring doctors at some of its hospitals to admit patients regardless of medical need just to increase revenues, the CBS program 60 Minutes reported Sunday. 



Doctors at several HMA hospitals told 60 Minutes that administrators had set quotas for admissions through their emergency rooms.  HMA disclosed in previous SEC filings that federal authorities have been investigating certain aspects of the company, including "the medical necessity of emergency room tests and patient admissions."



While I do not regularly track these sorts of developments on this blog, new federal and state investigations into financially-motivated medical over-treatment are announced daily.

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Slow Code - Short Code - Show Code

The slow code has been getting a lot of attention over the past week.  First, there was an excellent webinar at Children's Mercy Bioethics Center.  And Robert Cribb covered the topic in the latest in his end-of-life medicine series in the Toronto Star.



I especially liked this part of Cribb's article:  

Lantos acknowledges that many in the medical community have called his defence of slow codes a paternalistic endorsement of cloak-and-dagger secrecy.  “It’s a nice argument,” he says. “But why is honesty so obviously the only moral consideration? There’s an argument against the brutal-honesty approach. Families might be better off if you do a little CPR and say, ‘I’m very sorry but your loved one died.’”

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End-of-Life Matters: Cultural Representations through the Entertainment Arts

The 2012 National Academies of Sciences Rosenthal Lecture will be on December 12.  It will focus on how the language of the entertainment arts informs our cultural understanding of end-of-life care. 

Through the screening of clips from the film Beginners and television medical dramas, and a live theatrical performance reading from Sophocles’ Philoctetes, the Rosenthal Lecture panelists will explore the various ways the entertainment arts can provide a platform for an engaging and compelling conversation about end-of-life. The panel will approach the conversation through the lens of the patient, the family, the provider, and the community.

Moderator

• Neal Baer, M.D., Executive Producer, CBS Television; Clinical Professor of Preventive Medicine, University of Southern California

Panelists

• Jay Clayton, Ph.D., Professor and Director, Curb Center for Art, Enterprise and Public Policy, Vanderbilt University


• Bryan Doerries, Artistic Director, Outside the Wire


• Kathy Foley, M.D., Professor of Neurology, Weill Medical College of Cornell University; Medical Director, International Palliative Care Initiative, Open Society Foundation

Closing Remarks

• Harvey V. Fineberg, M.D., Ph.D., President, Institute of Medicine

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Minnesota v. Smith: Does Advance Directive Break Chain of Causation?

The Minnesota Supreme Court has agreed to hear a drunken driver's claim that he was not responsible for the death of a
93-year-old woman killed in a 2010 crash because her
"do-not-resuscitate" order kept her from potentially life-saving medical
care.



Eddie Cortez Smith, 34, was convicted by a Ramsey County District
Court jury in June 2011 of criminal vehicular homicide in the death of
Edith Schouveller of St. Paul on March 28, 2010. He was sentenced to 10
years in prison, the maximum term allowed by state law.  His conviction was affirmed by the Minnesota Court of Appeals in
September.



The case turns on the argument that Schouveller's advance directive with the do-not-resuscitate order was a "superseding event." When she developed pneumonia, doctors determined she needed a small tube inserted into her lungs to
aid her breathing. But court documents show she only wanted antibiotics,
and no breathing tube if it did not restore her to her preferred
quality of life.  She died 13 days after the crash. At trial, one of her doctors said
Shouveller might have lived with a breathing tube.  (Star Tribune)



Things do not look good for Smith.  Criminal defendants regularly make this causation argument.  And they regularly lose.

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Role of Minnesota Guardians in End of Life Decision-Making

Join us for breakfast and CLE on Friday, December 21 for "The Role of Guardians in End of Life Decision-Making: Reflections on the Tschumy Decision and its Implications for Guardians and Health Care Providers."  The expert panel will be

• The Honorable Jay Quam, Hennepin County District Court


• Rebecca Egge Moos, Bassford Remele


• Robert McLeod, Lindquist & Vennum PLLP


• Charles W. Singer, Attorney at Law  

Guardians play extremely important roles within our legal system, and are granted wide ranging authority under Minnesota law, including the legal authority to provide or withhold consent for medical care for an individual under guardianship. How far should this authority extend? 



The important question of whether a guardian’s authority extends to end-of-life decisions was recently considered in In re the Guardianship of Tschumy, where the court held that a guardian does not have the power to make a decision to terminate life support. The decision, which is now on appeal, presents important and difficult questions for attorneys, guardians and health care providers alike. 

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Physician Sanctioned for Not Completing End-of-Life Care CME

West Virginia, like New Jersey and many other states, requires that physicians complete a certain number of CME credits in end-of-life care.  The West Virginia Board of Medicine recently sanctioned Michael W. Brown for falsely representing, in 2002, that he had completed this CME requirement.  



Late last month, the Kanawha County Circuit Court reversed and vacated the Board's order.  The Court found that Dr. Brown believed in good faith that his coursework satisfied the then-existing requirements.  Still, it is nice to see this CME requirement is being enforced.

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POLST - DNAR without Consent

I strongly support POLST.  I have been actively engaged with its implementation in both Delaware and Minnesota.  And I am presently preparing a lengthy report to aid the continuing nationwide roll-out.  

But I was surprised to see that some POLST programs and forms explicitly permit unilateral clinician orders.  This form from Vermont, for example, permits the clinician to complete a DNAR order on a patient's POLST without either patient or surrogate consent, in the case of "futility."  

I am not saying that I am necessarily opposed to this development.  Many states have taken the opportunity, when introducing new statutes and regulations authorizing POLST, to fix some other limitations and problems in health care decisions law.  I was simply surprised, because so much of the defense of POLST, in response to attacks from certain Catholic officials, focuses so heavily on its voluntary nature.          

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KCET Show on End-of-Life Medicine

Los Angeles KCET will post a video, today, from last night's broadcast of SoCal Connected.  Three segments are of interest:

• UpFront: One woman makes an end-of-life decision many people dread.


• Your Turn to Care: L.A. Times columnist Steve Lopez reflects with his readers on the hardships of having a parent in decline.


• In the Studio: Dr. Ken Murray, a retired family
  physician, talks to Val about how doctors choose to approach the end of
  life differently than most people.

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Another New Review of Liverpool Care Pathway

The Liverpool Care Pathway has come under intense scrutiny.  Several lawsuits have already been filed over
patients put on the pathway without a proper explanation or their
families being involved.  (BBC News)



Care and Support Minister Norman Lamb said he would appoint an independent chair to report back in the new year.  The new review will pool together data gathered from existing
reviews which are being undertaken by the Association Palliative
Medicine, Dying Matters and the national End of Life Care Strategy.

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Carina Melchior: The Girl Who Refused to Die

A teenage girl in a coma after a catastrophic car crash came round just as doctors were about to declare her brain dead.  Carina Melchior had had life support withdrawn on the advice of medics and was being prepared for organ donation.  But to the astonishment of staff at the Aarhus Hospital, in Denmark, the 19-year-old suddenly opened her eyes and started moving her legs. (Daily Telegraph; Copenhagen Post)





She is now making a good recovery at a rehabilitation centre and is able to walk, talk and even ride her horse.  Her family is now suing the hospital for damages, claiming that doctors had been desperate to harvest her body parts.



The case has sparked a public debate in Denmark about donations and end-of-life treatments, with registered donors withdrawing consent in fear of doctors acting too quickly.  The Danish government is drawing up new guidelines to prevent doctors from making preparations to remove organs until the patient is officially declared clinically dead.



The story was covered in a documentary called "The Girl Who Refused to Die."

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"Way to Go" - New BBC Assisted Suicide Comedy

US comedy writer Bob Kushell has created a black comedy for BBC3 about a group of men forced into launching an assisted suicide business.  (Broadcast Now; Radio Times)

Way To Go will center on twenty-something Scott, who is moved by his neighbor’s request to die, but is also grappling with a predatory female boss, a split from his girlfriend, and a need for cash to pay off his brother Joey’s gambling debts.  Together with Joey and friend Cozzo, Scott stumbles across the solution of illegally purchasing an assisted-suicide machine. It’s not a simple process, however, and the trio’s inadequacies provide some of the most darkly comic moments.

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Edwarda O'Bara, World's Longest Coma Patient, Dies

Edwarda O'Bara, the world's longest coma patient, who had been called
the "Sleeping Snow White" during the 42 years she remained comatose, has died
at the age of 59.

In 1970, when Edwarda was 16, she suddenly fell ill and slipped into a
diabetic coma.  As she lay in her bed, she turned to her mother, and pleaded with her to
stay near.  “Promise me you won't leave me,” the teen begged her mother.  The mother promised, "I would never
leave you, darling."  (Daily Mail)

As part of her care, Edwarda’s body was turned every two hours to keep
away bedsores.  Edwarda's mother, and
later her sister, would also lovingly braid Edwarda’s grey hairs, and suck the
mucus from her throat to allow her to breath. 
They mixed baby food, milk, eggs, orange juice, Mazola oil, brewer's
yeast and a piece of white bread into a blender and then a wire mesh strainer,
pouring the concoction into Edwarda's feeding tube every two hours, day and
night.  Family and friends would also
visit her, playing music and reading to the woman. Dr. Wayne Dyer later wrote a book about the family, A Promise Is A Promise: An Almost
Unbelievable Story of a Mother’s Unconditional Love and What It Can Teach Us.  (O'Bara family website)

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Delaware Repeals MOLST

Most state are moving progressively toward clearer and stronger authority for their POLST programs.  Oddly, a few days ago, the Director of the Delaware DHSS Division of Public Health formally asked "all healthcare providers to please discontinue use of the STATE OF DELAWARE MOLST form."

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Not Dead Yet and the NYLS End-of-Life Symposium

Not
Dead Yet reports that last Friday, three
disability activists in New York City went to the Justice Action Center at the
NY Law School to distribute flyers protesting the way in which a symposium on “Freedom of Choice at the End of Life” handled
“issues of concern” that people with disabilities have with proponents of
assisted suicide (and other “end of life” issues).

As I
wrote privately to one of the activists, Nadina Laspina, I was pleased
that these activists were able to come up to the conference area deep inside
New York Law School.  Their presence, their conversations, and the NDY
blogging about the symposium definitely heightened awareness of the disability
perspective on end-of-life medical treatment issues. 

I first met Nadina, in April 2010, in New Brunswick, New Jersey, when I was arguing before the Appellate Division in the Betancourt case.  The strong NDY presence in the courtroom that morning surely sent as strong a message to the three-judge panel as any brief or attorney advocacy.

While I value the voice of NDY, I am not sure that its criticism of the NYLS is completely accurate and fair.  First,
Alicia Ouellette made an informed, fair, and even passionate argument for more
inclusiveness and circumspection.  Here is an excerpt from a review of her book, Bioethics and Disability -

Ouellette contends that people with disabilities have been medicalized and marginalized by bioethics practice. Although perhaps overstating the connection between bioethics and clinical medicine, she provides powerful descriptions of how some bioethics commentary and consultation have been infected by misinformation and disability bias. She explains the importance to bioethics of listening to the voices of people with disabilities, unearthing prejudice, and pursuing inclusive justice. To put the call of the book in Ouellette's own words: “A disability-conscious bioethics will incorporate important but overlooked knowledge, evince sensitivity to the values, concerns, and interests of members of the disability community, acknowledge the biases and alliances that affect various parties' perspectives, and focus on principles of importance to disability work that are sometimes overlooked in bioethics -- nondiscrimination, full and effective participation and inclusion of people with disabilities, respect for difference, and accessibility.”

It is worth noting that not only Alicia but also her institution, Albany Law School, does quite a lot for disability rights.  For the last 29 years law students enrolled in the disability rights clinic at Albany Law School have represented individuals with disabilities on an array of legal issues.

Finally, the potentially questionable
session title “special people” is readily explained by the fact that the panel
discussed not only the disabled but also another vulnerable populations,
prisoners.   

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Tonight on PBS: "Honoring Choices: Giving Thanks"

For those in Minnesota, tune in tonight at 8:00 p.m., to watch Honoring Choices: Giving Thanks.



In this final documentary of the series, Jearlyn and Jevetta Steele share why Thanksgiving is their preferred time to give the gift of a conversation with family and loved ones about end-of-life choices; why those close to you are your best advocates when you can't speak for yourself; and why it's important to participate in our healthcare decisions.

This documentary will be rebroadcast on Friday at 7:00 on TPT 2.1.  You can also visit the Honoring Choices Minnesota website to watch any of the documentaries in the series. 

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Compassion & Choices 2012 Annual Report

Compassion & Choices has published the Fall 2012 edition of its magazine.  This issue contains C&C's 2012 annual report.  Few organizations do (or have done) as much to protect and promote safety and autonomy in end-of-life care.

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Emergency Medicine on Futile Treatment

The Australasian College for Emergency Medicine is having a good discussion about futile interventions at its annual scientific meeting.  The focus appears to be more on physician-caused, rather than on surrogate-caused, overtreatment at the end of life.





Calls to End Futile Care by tvnportal

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Man Claims "Doctors Murdered My Wife"

Alan Booth says that doctors forced his wife, Sue, to die, by withdrawing food and water for two days, without the family's consent.  Although Sue had battled breast cancer for 7 years, she'd been told her cancer was under control.  (Jersey News; Jersey Evening Post)  Booth says, "The doctors murdered my wife. She didn't die naturally, she didn't die of cancer. She was put on a Pathway which is designed to kill. That was professed to be 'care'."  



The Health Minister says she cannot comment on individual cases - but she does say the Liverpool Care Pathway regime would never be used without the consent of family members. 

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Rasouli Daughter on CTV News

Hassan Rasouli's daughter discussed her father's case on CTV News (video clip) this morning.  

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The Most Difficult Ethical Dilemma Facing Science Today

The Guardian newspaper recently interviewed Britain's most celebrated scientist, David Attenborough.  Here is the final question and answer: 



What is the most difficult ethical dilemma facing science today?

DA:  How far do you go to preserve individual human life?



HT:  Ken Hillman, who just wrote in the American Journal of Respiratory & Critical Care Medicine:  "At the end of the day, it is our profession, through our societies and as individual critical care physicians, that needs to initiate and be involved in this discourse.  Not to dictate what should be done but to inform people of the limitations of the specialty and the inevitability of dying.  I believe this challenge is one of the more pressing and important that critical care medicine faces."

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Rasouli Case Coverage in Toronto Life Magazine

Just in time for upcoming oral
arguments in the Supreme
Court of Canada on December 10:  

Nicholas Hune-Brown has a
major piece in the December 2012 issue of Toronto Life magazine.  The article provides
extensive background on the Hassan Rasouli case.

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Advance Directives Should Address fMRI Results

At least for the foreseeable future, there will be uncertainty over whether some PVS patients are in a cognitive state more like locked-in syndrome.  (National Post)



Consequently, it might be prudent for individuals to address this situation in their advance directives.  For example: "I do/do not want to be sustained with life support if I am diagnosed in a PVS, even if fMRI shows I have some responsiveness."  Of course, if the fMRI data shows that the patient has decision making capacity, then the patient could revoke the advance directive.  

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Physicians, Not Surrogates, to Blame for Non-Beneficial Overtreatment

Another interesting result from the new Medscape survey of top ethical dilemmas.  Too many patients are just not getting the truth about how bad things really are.



I was pleased to hear, this weekend in NYC, more about New York's Palliative Care Information Act (in effect since Feb. 2011) and about similar legislation now in the NY pipeline.  While there are some intractable futility disputes, most inappropriate, non-beneficial end-of-life medicine is clinician-driven, not surrogate-driven.  

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National Healthcare Decisions Day 2013

Yesterday, marks five months to the sixth annual National Healthcare Decisions Day.

Many of you will have family gathered next week for Thanksgiving, and I encourage you to take the opportunity to have a discussion about your advance care planning.  Then, reflect on the discussion and use your experience to guide the way you bring up the topic with others. 

NHDD has a great video to get the conversation started.  The Canadian “Speak Up” Campaign (with their own National Advance Care Planning Day on April 16) also has a great video.   

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2013 Canadian Bioethics Society Annual Conference

The 2013 Canadian Bioethics Society Annual Conference will be in Banff from May 29 to June 1, 2013.  Abstracts are due at the end of this month.

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Physicians' Top Ethical Dilemmas

Medscape has just published its 2012 Ethics Report: Physicians' Top Ethical Dilemmas, based on survey responses from 24,000 US physicians across 25 specialties.  Here is the first question:

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Symposium: Freedom of Choice at the End of Life

I am looking forward to participating, tomorrow, in New York Law School's symposium, Freedom of Choice at the End of Life.  I have posted my slides here.

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