New Case: Zody Cervantes v. Rady Children's Hospital

San Diego has long been a center for innovation in the resolution
of medical futility disputes.  While not all hospitals in the area have signed
onto proposed community-wide guidelines, several did.  One manifestation
of the enforcement of that policy is now playing out at Rady Children's Hospital.

Zody Cervantes has serious widespread brain damage probably due to meningitis.  Physicians told Zody's mom:  "We're 99 percent sure he's never going to have any
quality of life."  Physicians told her that they do not want to
prolong his suffering and plan to remove him from the ventilator on July 6.

Zody's mom says she is planning to fight the hospital's decision,
becaue she has seen signs of improvement.  She is also contacting other children's hospitals across the state to see if
Zody can be transferred before July 6.  (Channel 10 San Diego)

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The Hospice Nurse

PalliMed has an interesting discussion over
the appropriateness of this portrayal of the hospice nurse.

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Withdrawal of Treatment against the Consent of Substitute Decision-Makers

The Supreme Court of British Columbia's opinion in Carter v. Canada is a masterful and thorough review of the medicine, law, and ethics of hastened death.  Justice Smith even devotes five paragraphs to the law of medical futility.



VII.  Medical Ethics and Medical End-of-Life Practices . . .

C.  Current State of the Law and Practice in Canada . . .

3.  The Law . . .

d.  Withdrawal of Treatment against the Consent of Substitute Decision Makers



[227] The law makes clear that consent is a sufficient condition for the withdrawal

or withholding of treatment. But is consent also a necessary condition? Whether a

physician or hospital can legally withhold or withdraw potentially life-sustaining

treatment without the consent of either the patient or the patient.s substituted

decision-maker, is currently under much debate.



[228] In some decisions, Canadian courts have held that it is not appropriate for a

court to interfere with medical practitioners acting unilaterally in the best interests of

a patient: for example, Child and Family Services of Manitoba v. R.L. (1997), 154

D.L.R. (4th) 409 (Man. C.A.); and Re: I.H.V. Estate, 2008 ABQB 250.



[229] More commonly, however, courts faced with such issues have concluded that

the law in Canada is not settled: for example, Sawatzky v. Riverview Health Centre

Inc. (1998), 167 D.L.R. (4th) 359 (Man. Q.B.); Jin v. Calgary Health Region, 2007

ABQB 593; Golubchuk v. Salvation Army Grace General Hospital, 2008 MBQB 49;

and Rotaru v. Vancouver General Hospital Intensive Care Unit, 2008 BCSC 318.



[230] The question whether a patient.s family can require maintenance of lifesustaining

treatment against medical advice is central in a case to be heard in the

Supreme Court of Canada, Rasouli v. Sunnybrook Health Sciences Centre, 2011

ONCA 482 (leave to appeal to S.C.C. granted, [2011] S.C.C.A. No. 329).



[231] . . . (d) It is unclear whether a patient's substituted decision maker can require

the maintenance of life-sustaining treatment against medical advice.

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New Film: "A Good Death"

The film “A Good Death” is for patients with COPD or other serious lung conditions, their families, and the doctors and nurses who provide care for them. It is not an easy film to watch, because it describes the struggles of a real patient, Mr. Martin Cavanagh, and his family during the last months of his life. If you are living alone, it may be best to invite a family member or friend to watch it with you.




The film is designed to introduce the concept of ADVANCE CARE PLANNING. It is meant to prompt meaningful discussion and helpful planning for future care for patients whose respiratory illness is leading them to the end of life. It is about making thoughtful choices. If you are a patient, you may find this challenging or even upsetting at first. But experience tells us that these understandable reactions give way to genuine appreciation and satisfaction because sensitive issues have been brought out into the open and addressed.





A Good Death from PRN Films on Vimeo.

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Health Care Reform and Health Care Stakeholder Disputes: Can We Identify Common Ground?

I will be speaking at Health Care Reform and Health Care Stakeholder Disputes: Can We Identify Common Ground? on Friday, October 12, 2012 at Marquette University.  Here is the tentative agenda:



8:30 - 9:20 a.m.       PLENARY

Moderator - Professor Howard Bellman, J.D., LL.M., Marquette University Graduate Program in Dispute Resolution, Distinguished Adjunct Professor

Panelists:

Dr. Arthur Derse, MD, J.D., Institute for Health and Society Medical College of Wisconsin, Director, Center for Bioethics and Medical Humanities Director, Medical Humanities Program, Julia and David Uihlein Professor of Medical Humanities and Professor of Bioethics and Emergency Medicine

Dr. Howard Gadlin, Ph.D., National Institutes of Health, Ombudsman and Director of the Center for Cooperative Resolution

Professor Kathleen Lanava, BSN, RN, CPHRM, University of Michigan Health System, Manager Risk Management Department

Dr.  Thaddeus Pope, J.D., Ph.D., Hamline University School of Law, Health Law Institute, Director and Albany Medical College, Adjunct Professor



9:45 - 10:45 a.m.

The Patient/ Healthcare Provider Relationship.  When is the relationship broken?

Moderator - Professor Christine Harris Taylor, J.D., LL.M., Marquette University Graduate Program in Dispute Resolution and Center for Dispute Resolution Education, Associate Director and Associate Professor Graduate Program in Dispute Resolution

Panelists:

Dr. Arthur Derse, MD, J.D., Institute for Health and Society Medical College of Wisconsin, Director, Center for Bioethics and Medical Humanities Director, Medical Humanities Program Julia and David Uihlein Professor of Medical Humanities and Professor of Bioethics and Emergency Medicine

Dr. Thaddeus Pope, J.D., Ph.D, Hamline University School of Law , Health Law Institute, Director and Albany Medical College, Adjunct Professor

10:45 - 11:00 a.m.       BREAK



11:00 a.m. - Noon      

Health Care Systems and Health Care Provider Disputes:  Can we work together? 

Moderator - Professor Eva M. Soeka J.D.,  Marquette University Graduate Program in Dispute Resolution and Center for Dispute Resolution Education, Director and Associate Professor of Law

Panelists:

Professor Kathleen Lanava, BSN, RN, CPHRM, University of Michigan Health System, Manager Risk Management Department

Gail Buenger, J.D., Aurora Health Care Project Management Services, Vice President

Dr.  Paul Bernstein, MD, J.D., Aurora St Luke’s Medical Center, Cardiovascular Diseases

Dr.  Andrew Petroll, MD, MS, Medical College of Wisconsin, Assistant Professor, Infectious Diseases



12:00 - 1:30 p.m.       LUNCHEON

Speaker - Dr. Howard Gadlin, Ph.D., National Institutes of Health, Ombudsman and Director of the Center for Cooperative Resolution



1:30 - 2:30 p.m.         

Patient/Insurer Disputes:  What does my policy cover? 

Moderator - Brian Wroblewski, MBA, Director of Provider Management, Assurant Health 

Panelists:

Common Ground Insurance Coop Representative

Sean Dilweg, former Insurance Commissioner, State of Wisconsin        



2:45 - 4:00 p.m.         

Bio Ethics Disputes:  Lifestyles and End of Life Issues

Moderator - Professor Kevin Gibson, Ph.D., Marquette University Department of Philosophy, Associate Professor and Director of Graduate Studies

Panelists:

Mathew Pauley, J.D., MA, MDR, Kaiser Permanente Fontana & Ontario Vineyard Medical Centers, Director, Medical Bioethics

Dr. Mark Repenshek, Ph.D. Columbia-St. Mary’s Medical Center, Healthcare Ethicist                      

Professor Lisa Andersen-Shaw, DrPH, MA, MSN, University of Illinois Medical Center, Director, Clinical Ethics Consult Service, Assistant Clinical Professor

Ron Brenner, M.B.H.A., Lieberman Center for Health and Rehabilitation, Executive Director and Senior Nursing Advisor

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Clinicians Hasten Death of even Non-Terminal Patients

The Liverpool Care Pathway is an integrated care pathway that is used at the bedside to improve the quality of the dying in the last hours and days of life.  It is a means to transfer the best quality for care of the dying from the hospice movement into other clinical areas, so that wherever the person is dying there can be an equitable model of care.




But Professor Patrick Pullicino charges that the clinicians use the pathway even when there is a lack of clear evidence for initiating it.  Dr. Pullicino told the Royal Society of Medicine: "Very likely many elderly patients who could live substantially longer are being killed by the LCP. Patients are frequently put on the pathway without a proper analysis of their condition."  




The Department of Health responded: "A patient's condition is monitored at least every four hours and if a patient improves, they are taken off the Liverpool Care Pathway and given whatever treatments best suit their new needs."

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Legal Briefing: The Unbefriended: Making Healthcare Decisions for Patients Without Surrogates

The second part of my article "Legal Briefing: The Unbefriended: Making Healthcare Decisions for Patients Without Surrogates" was just published in The Journal of Clinical Ethics 23(2): 177-12.  Here is the abstract:

This issue’s “Legal Briefing” column continues coverage of recent legal developments involving medical decision making for unbefriended patients. These patients have neither decision-making capacity nor a reasonably available surrogate to make healthcare decisions on their behalf. This topic has been the subject of recent articles in JCE. It has been the subject of major policy reports. Indeed, caring for the unbefriended has even been described as the “single greatest category of problems” encountered in bioethics consultation. Moreover, the scope of the problem continues to expand, especially with rapid growth in the elderly population and with an increased prevalence of dementia.

Unfortunately, most U.S. jurisdictions have failed to adopt effective healthcare decision-making systems or procedures for the unbefriended. “Existing mechanisms to address the issue of decision making for the unbefriended are scant and not uniform.” Most providers are “muddling through on an ad hoc basis.” Still, over the past several months, a number of state legislatures have finally addressed the issue. These developments and a survey of the current landscape are grouped into the following 14 categories. The first two categories define the problem of medical decision making for the unbefriended. The remaining 12 describe different solutions to the problem. The first six categories were covered in Part 1 of this article; the last eight categories are covered in this issue (Part 2).

1.   Who are the unbefriended?  2. Risks and problems of the unbefriended  3. Prevention: advance care planning, diligent searching, and careful capacity assessment  4. Decision-making mechanisms and standards  5. Emergency exception to informed consent  6. Expanded default surrogate lists: close friends  7. Private guardians  8. Volunteer guardians  9. Public guardians  10.  Temporary and emergency guardians  11. Attending physicians  12.  Other clinicians, individuals, and entities  13. Institutional committees  14. External committees 

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Raz: Death in Our Life

The eminent legal philosopher Joseph Raz has posted the text of the Annual Lecture of the Society for Applied Philosophy, delivered in Oxford in May 2012.  Here is his abstract:  

I kept the talk style of the paper. It examines a central aspect of the relations between duration and quality of life by considering the moral right to voluntary euthanasia, and some aspects of the moral case for a legal right to euthanasia. Would widespread acceptance of a right to voluntary euthanasia lead to widespread changes in attitude to life and death? Many of its advocates deny that seeing it as a narrow right enabling people to avoid ending their life in great pain or total dependence, or a vegetative state. I argue that the right cannot cogently be conceived as a narrow right, confined to very limited circumstances. It is based on the value of having the normative power to choose time and manner of one’s death. Its recognition will be accompanied by far reaching changes in culture and attitude, and these changes will enrich people’s life by enabling them to integrate their death as part of their lives.

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Krela v. Kryla: Case of the Forged POLST

Here is the Complaint in a recently-filed federal case in Oregon: Krela v. Kryla.  One of the allegations is that a POLST was completed without the patient's consent and over his objections.  




I wrote just a few days ago about a Minnesota case in which DNR orders were accidentally switched.  There may be some real merit to the arguments of those concerned with increasing the security safeguards in POLST.

 

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Pay Up or We Turn Off the Ventilator

A Mexican hospital allegedly threatened a Scottish family that it would turn off the ventilator of Olivia Downie who is suffering from stage four neuroblastoma.

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8 Questions Patients Forget to Ask Their Doctor

Medical futility conflicts are often due to patients and surrogates demanding more aggressive interventions than clinicians deem appropriate.  But far greater volumes of overly-aggressive end-of-life treatment is provided not because patients and surrogates want (or need) it, but because clinicians want to provide (and bill for) it.




Both in the end-of-life context and elsewhere in medicine, patients need to be empowered to protect themselves against growing cultural and economic influences that may undermine patient rights.  To this end, here are eight questions that patients forget to ask their doctor.

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DNAR Orders: Resetting the Defaults

The latest issue of JAMA includes some correspondence on Blinderman at al.'s proposal to revise the approach to DNAR status.  In one letter, Dr. Georgiou paints an overly pessimistic picture of the legal obstacles to not performing desired CPR.  In fact, EMTALA is almost always inapplicable to hospital inpatients and it is completely inapplicable to long-term care residents.  More generally, as I have argued here and here, there is hardly as strong or clear a legal prohibition of unilateral DNAR as Dr. Georgiou suggests.        




I especially like Blinderman's response to the letters.  "We can better influence US society if -- instead of focusing on limiting medically futile care . . . -- we stress the obligation to protect patients from harmful and nonbeneficial interventions. . . .  Reframing the reason why CPR is not offered from the principle of medical futility to the principle of nonmaleficence may engender more public acceptance . . . ."  Reminds me of this compelling advertisement on the power of words to change the world:

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Refusal to Resuscitate: Paramedic Disciplined

A British Health Professions Council panel has found paramedic Alan Clark guilty of misconduct for refusing to resuscitate a 93-year-old woman with COPD.  (HPC Committee Finding; Daily Mail)  Clark allegedly determined that the woman was "life extinct" even though he had not determined how long she had stopped breathing and even though there was no “do not resuscitate” or living will formally in place.




Interestingly, the Panel also considered related charges that Clark engaged in a show code ("mimicked resuscitation") to appease the family of a different patient.  But the Panel dismissed those charges because there was insufficient evidence.

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Another Algorithm to Handle Requests for Non-beneficial Interventions

Last month, I described an algorithm published in the Journal of Medical Ethics that the authors argued should be used to appropriately handle medical futility disputes.  




This week, the same journal (Journal of Medical Ethics) has posted another article defending a different algorithm by a different group of German medical/ethical researchers:  "Evaluating a patient's request for life-prolonging treatment: an ethical framework."  The article is open access.

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Defending Presumed DNR

In early May, I blogged about this JAMA article that defends a three-tiered approach to DNR orders.  On the same subject, I was just moved by this powerful story posted to KevinMD this week.  It presents a case illustrating why CPR should not be offered as an option when it is physiologically or imminently futile.  

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POLST - Include Patient Photo?

A Dungarvin LLC assisted living facility in my neighborhood was just reprimanded by the Minnesota Department of Health for failing to resuscitate a patient.  The patient had been choking, and staff summoned EMS.  But when EMS arrived, staff presented them with a DNR order.  So, EMS did not resuscitate.  Unfortunately, the DNR order was not the patient's but was another patient's.  




It seems that matching the order to the patient is an area presenting some risk of error, especially in the emergency context.  Perhaps this risk could be readily mitigated by including the patient's photo on the order.  Why have lower safeguards for a POLST than for a driver's license, passport, or library card?  I do not think any state's implementation of POLST includes this.  But perhaps they should.

  

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Legal Mechanisms to Resolve Futility Disputes (Video)

I have posted, here, an MP4 video of my May 2012 presentation at the ATS 2012 Conference in San Francisco:  "What Are the Boundaries of Acceptable Medical Practice Near the End of Life In ICUs?  Legal Mechanisms to Resolve Futility Disputes."  This is not a video of me but of my slides with me speaking.  

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Video Advance Directives

Angelo Volandes has spearheaded a body of research (e.g. here and more to come in 2012-2013) persuasively demonstrating that compared with participants who only heard a verbal description, participants who viewed a goals-of-care video were more likely to prefer comfort care and avoid CPR, and were more certain of their end-of-life decision making. 




I was delighted to hear, this morning, that version 2.0 of Volandes' research will move from using videos to inform patient decision making to using videos to document that decision making.  Having a video of the patient describing her preferences will surly help ED physicians, family members, and others accept and honor the patient's choices.

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Lantos on Medical Futility, Huck Finn & ET

While I missed his presentation at the 2012 Healthcare Law and Ethics Institute at Samford University, I thoroughly enjoyed John Lantos’ slides on medical futility and moral distress.  Lantos powerfully uses literature and film-- from Huckleberry Finn to ET -- to illustrate relevant themes and issues.  

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35th Annual Health Law Professors Conference

I am heading, this morning, to hot, hot Tempe, Arizona to attend and speak at the 35th Annual Health Law Professors Conference.  This is probably the largest U.S. gathering of academic lawyers teaching and researching health law and bioethics.  




Last year, I also attended the Australasian Association of Bioethics and Health Law (AABHL) conference.  AABHL is Australia and New Zealand’s leading organisation concerned with issues of bioethics and health law. In contrast to ASLME, AABHL is a little more diverse.  Its members come not only from law but also from nursing, ethics, philosophy, healthcare administration, allied health and complementary healthcare.  I am pleased to see that ASLME is similarly including, this year, presenters and attendees from other disciplines.  The agenda is here.  

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Hospice as the Default Option

For all those patients who have left no evidence of their treatment preferences at the end-of-life, hospice should be the default argues this physician (in the clip below).  

I agree.  It is time to revisit, as Justice Rehnquist put in in Cruzan, the "societal judgment about how the risk of error should be distributed."  Empirical evidence over the past twenty years about patient preferences and the reversibility of certain medical states supports Justice Brennan's observation that "an erroneous decision in either direction is irrevocable."  We would commit far, far less error by having hospice as a default option for certain populations of the chronically critically ill.

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"How to Die" - TIME Mag. cover story

Take a look at the cover of this week's Time Magazine.  "How to Die" appears in large white letters on a red background.  This is great sign that our society is having much needed discussion and dialogue about these issues.  The author explains how the high-quality end-of-life care that his parents received from the Geisinger Health System was due largely to its salaried physician structure that avoids problematic fee-for-service incentives.  Here is a video accompanying the print story.

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New Report on DNR: Time to Intervene?

The UK National Confidential Enquiry into Patient Outcome and Death (NCEPOD) has released a new report that highlights the process of care for adult patients who received cardiopulmonary resuscitation in an in-hospital setting.  




The report takes a critical look at areas where the care of patients might have been improved, and factors which may have affected the decision to initiate a resuscitation attempt. Notably, the report found that even when a DNACPR decision had been made it was not always followed, and 52 patients underwent CPR despite their explicit DNACPR decision.




NCEPOD Chairman Bertie Leigh said that he hoped this report would prompt a rethink on the limits of what is possible, and act as a wake up call to the NHS: “In nearly half of all the cases we reviewed there was a failure to formulate an appropriate care plan on admission, and a failure, often over several days, to find out what the patient’s wishes were – and to carry them out.”  “We are at a crossroads. All of us need to recognise and accept the limits of what can be achieved in medicine to the benefit of the patient, and a ‘ceiling of treatment’ described and agreed with the patient wherever possible. Doctors should only administer CPR where a patient has consented, or if the doctor is satisfied it is in the patient’s best interests.”

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