California Court of Appeal New Years Eve Rulings in Mcmath v. Superior Court

Yesterday, before the Superior Court extended its TRO to January 7, the Mcmath/Winkfield family filed a petition for writ of mandamus in the 1st Appellate District of the California Court of Appeal, seeking to vacate the Superior Court's December 26 order, denying the family's petition to continue ICU-type measures for petitioner.Today, December 31, 2013, the Mcmath/Winkfield family filed a Status Report with the Court of Appeal,...

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Dr. Paul Byrne Disputes California Legal Definition of Death

In 1982, the California legislature enacted a determination of death statute that permits determination by either cardiopulmonary or neurological criteria.  It is basically the same statute in all 56 U.S. jurisdictions.  But Dr. Paul Byrne disputes the appropriateness of this standard.  The Mcmath family disputes its constitutionality.  Atul Gawande is right, it takes a long time for standards to get accepted. &nb...

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Mcmath Case Not Unique - Other Court Ordered Ventilation of Dead Bodies

The Mcmath case started like many.  Families who unwilling or unprepared to accept a diagnosis of death sometimes sue for more time, so they can get independent confirming diagnoses.  Courts regularly grant TROs in these circumstances.  (See, e.g. Michael Todd v. University of Kansas (2006); Chris Lanciano v. Martinsburg WV Hospital (2009))  These are just short-term, stop-gap measures.  But the Mcmath case is now lasting mush longer than most.  To be sure, no court has made any final determination on the merits....

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Jahi Mcmath v. Children's Hospital - Court Papers

The Mcmath family now has active lawsuits in both state court and in federal court.  I have collected most of the court papers here.  The main legal arguments in both cases seem to focus on: 1st Amendment free exercise4th and 14th Amendment privacyDisability discrimination under the ADA Disability discrimination under the Rehabilitation ActIn light of settled case law, these are all losing arguments, making the complaint's claims close to frivolous.  In contrast, one of the argument to the state appellate court,about...

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Medical Futility Called "Medical Murder"

I have quite a large file of articles and materials opposing the existence and implementation of medical futility policies.  But I had not seen, before today, the application of these policies referred to as "medical murder."Like "death panel," advocates have developed a rich pejorative vocabulary to taint initiatives and programs that they oppose.  This one is less accurate than most.  "Murder" includes an element of malice.  But that is lacking in virtually 100% of medical futility cases.  Indeed, it is usually...

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Family Seeks to Transfer Corpse of Jahi Mcmath to Another Healthcare Facility for "Treatment"

Pursuant to a court order, on Monday, Oakland Children's Hospital is planning to remove mechanical ventilation from the body of Jahi McMath.  But, now, there is a new complication.  The Mcmath family has apparently found a Bay Area sub-acute care facility that is willing to accept Jahi and provide her "with all the nutrition, ventilation support and other care that she needs to stabilize her and to assist her in reaching maximum medical improvement."  Even more surprising, the family even says that a plan administrator at Jahi's...

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Medical Miracles: Virgin Births & Return from Death

American are BIG believers in miracles.  Even in the face of solid clinical evidence, we hold out hope for a miracle.  For example, the parents of Jahi Mcmath, for example, are hoping that their daughter "wakes up" even after five clinicians independently confirmed that she was dead.  And now comes an even more surprising example.  1 in 200 women report having had a "virgin birth."  The BMJ study shows 0.5% of 7870 female...

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Rudolph the Red-Nosed Reindeer and Informed Consent

CollegeHumor's Favorite Funny Vid...

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Your Probability of Death

I like this opening slide from a presentation by Sunnybrook's Robert Fowler last month.&nb...

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California Court Orders Hospital to Warm Corpse

The San Jose Mercury News is doing a great job of covering the ongoing case of Jahi McMath v. Oakland Children's Hospital.Here is a timeline of events:December 9 - Tonsil surgery December 12 - Declaration of deathDecember 20 - Judge Grillo orders hospital to continue ventilation until an independent medical examinationDecember 23 - Judge Grillo orders hospital to continue ventilation and IV fluids until December 30December 24 - Dr....

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Technology at the End of Life: “Medical Futility” and the Muslim PVS Patient

The International Review of Law just published "Technology at the End of Life: “Medical Futility” and the Muslim PVS Patient" by Kartina A. Choong at the University of Central Lancashire.  Here is the abstract:Advanced life-sustaining technologies can now prolong indeterminately the lives of patients in a persistent vegetative state (PVS). However, where the assistance rendered is not expected to restore consciousness, they are considered futile from a medical perspective. English law, in such a scenario, has taken the view that...

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Sarah Hershberger - Court Overrules Parents' Treatment Decision

The ongoing Hershberger case in Ohio may shed some light on the resolution of medical futility disputes.  An Ohio court decided that the parents of 11-year-old Sarah Hershberger exceeded the scope of their decision making discretion by refusing chemotherapy.  The court appointed a guardian to make Sarah's treatment decisions.  The family is in hiding to avoid the court order.Surrogates or parents exceed the scope of their authority when they make treatment decisions for too little treatment where the chance of success...

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Jahi Mcmath - ABC News Coverage

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Judge Orders Hospital to Sustain Jahi Mcmath's Dead Body

Douglas Strauss (attorney for Childrens)Christopher Dolan (attorney for family)Yesterday, Alameda County judge Evelio Grillo issued a temporary restraining order (and here) to prevent Children's Hospital Oakland from disconnecting 13-year-old Jahi Mcmath from the ventilator until an independent neurologist can examine her to determine if her brain is showing signs of activity.  I posted the court papers here.Notably,...

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Texas Hospital Giving Pregnant Woman Unwanted Medical Treatment

Often, when I write about the Texas Advance Directives Act, I focus on the provisions that permit clinicians to STOP life-sustaining treatment without patient or surrogate consent.  But only a few lines away, another section requires that clinicians CONTINUE life-sustaining treatment without patient or surrogate consent.Section 166.049, provides: "A person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient."  Many states have such laws.  In some states, like Minnesota, the law only...

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American College of Legal Medicine - 2014 Annual Meeting

The American College of Legal Medicine will hold its 54th Annual Meeting from February 27 – March 2, 2014, at the Westin Galleria in Dallas, Texas.  The theme is "Legal Medicine: Where Will the Road Lead."Here are some highlights:Donation after Circulatory Arrest: A Lesson in How Not to Make Medico-Legal Policy -- Professor Thomas W. Mayo, JDLandmarks from the Law: Classic Cases in Medical Ethics -- Martin Boyle, JD; Joseph...

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Legal Definition of Death in California

With worldwide discussion of the Jaha McMath case, it is worth clarifying California law on dead patients.First, like most states, California adopted the Uniform Determination of Death Act in 1982 (Cal. H&S Code 7180-81):(a) An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards. . . .When...

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Minnesota Supreme Court to Hear SECOND Assisted Suicide Case

In September, the Minnesota Court of Appeals struck down Minnesota's criminal prohibition of assisted suicide as unconstitutional.  Yesterday, the Minnesota Supreme Court granted the petition of the State of Minnesota for further review and granted the petition for conditional cross review of Final Exit Network, Inc., Lawrence Deems Egbert, and Roberta L. Massey.  The court stayed further proceedings pending final disposition in State v....

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Jahi McMath - Who Gets to Decide when to End Life Support when a Person is Dead?

On December 9, 13-year-old Jahi McMath underwent surgery at Children’s Hospital Oakland to remove her tonsils. It was supposed to have been a routine procedure intended to cure a sleep apnea problem.  But after the surgery, she coughed up blood and went into cardiac arrest.  On December 12, Jahi was declared brain dead. (CNN)But this sad case has gotten even sadder.  Jahi's mother, Nailah Winkfield, will not consent to removing life...

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Making Medical Treatment Decisions for Incapacitated Patients without Surrogates in California

Last month in the New England Journal of Medicine, I called on healthcare providers and policymakers to improve the mechanisms by which medical treatment decisions are made for incapacitated patients without surrogates (the "unbefriended" or "unrepresented").  This was a renewal of my 2012 call and more comprehensive review of existing (inadequate) processes.I am pleased to see growing attention to the problem, recently, in publications...

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Top 10 North American Death Panels

Check out my latest post at the American Journal of Bioethics blog:  "Top 10 North American Death Panel...

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Canadian Doctors Developing Guidelines on Right Way to Withdraw Life Support

The Vancouver Sun reports that Canada’s critical care doctors are developing guidelines on best way to withdraw life support once the decision to do so has been made.James Downar, Critical Care and Palliative Care Staff Physician at the Toronto General Hospital presented on the topic last month.  He remarked:  “I don’t think anybody could ever tell you how much pain medication someone should receive as they die. . . .  But,...

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New Mexico Court to Determine Legality of Aid in Dying

Yesterday, Compassion & Choices and the ACLU of New Mexico concluded arguments in a landmark trial seeking to establish that aid in dying is legal in New Mexico. Morris v. New Mexico is a test case, bringing before a court for the first time the claim that ambiguous state laws prohibiting “assisted suicide” do not apply to physicians who write aid-in-dying prescriptions to mentally competent, terminally ill adults.Kathryn Tucker explains...

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Vote for Medical Futility Blog

This is your weekly reminder to VOTE for the Medical Futility Blog in the 2013 ABA Journal Blawg 100.  Polls remain open until December ...

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Why Thaddeus Pope Publishes Bioethics & Health Law

I really like this statement of publishing philosophy by Lawrence Frolik at the University of Pittsburgh School of Law.As Thomas Huxley observed, "The great end in life is notknowledge but action." I write to change the world by changing the mindsof my readers. My goal is to improve the lives of older Americans by analyzingand critiquing the current legal landscape and advocating for reforms. To besure, I write to influence other academics, but I...

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Prolonged Disorders of Consciousness – New RCP Guidanc

Yesterday, the Royal College of Physicians launched new guidelines on the diagnosis and management of people with prolonged disorders of consciousness (PDOC), a term covering patients remaining in a coma, vegetative state (VS), and minimally conscious state (MCS) after a brain injury.  Of particular interest are chapters 4 and 5.Section 4: Ethical and medico-legal issuesIntroduction Ethical principles The Mental Capacity Act 2005 Mental...

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Handbook of Clinical Neurology - Ethical and Legal Issues in Neurology

The latest Handbook of Clinical Neurology (volume 118) contains over 400 pages on ethical and legal issues in neurology written by some top experts on these issues. Chapter 1 - Ethical principles and concepts in medicinePages 1-9Robert M. Taylor Chapter 2 - The analysis and resolution of ethical dilemmasPages 11-23Robert C. MacauleyChapter 3 - Ethics committees and consultantsPages 25-34C. Christopher Hook, Keith M. Swetz, Paul S. MuellerChapter...

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Triage

Source: NursingSchoolHub....

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Community Standards of Medical Futility: Pros & Cons

Over the past few decades, many metropolitan areas have developed (or tried to develop) community-wide "standards of care" regarding how to address medical futility disputes.  These have included Houston, Toronto, Denver, San Diego, and now Minneapolis-St. Paul.  These policies have tremendous value in achieving 90+% rates of consensus and facilitated agreement.  But what is the value of these policies, in intractable disputes,...

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The Appropriate Use of Increasingly Sophisticated Life-Sustaining Technology

Darryl Abrams and colleagues at Columbia University have a great new article on medical futility in the December 2013 AMA Virtual Mentor.They write:  "There seems to be a general, if unofficial, consensus among most intensivists that surrogate requests . . . be granted even when patients are irreversibly ill and will not survive . . . ."  The authors observe:  "Up to now, patients and families in the U.S. have been given considerable...

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Seeking to Reduce Nonbeneficial Treatment in the ICU: An Exploratory Trial of Proactive Ethics Intervention

Prior studies have demonstrated the value of ethics consultations in resolving conflict and reducing both length of stay and use of aggressive therapies.  In a new just-published study Anderdeck, Schneiderman & Jonsen report on a trial of proactive ethics intervention.  Unfortunately, the results are not encouraging.The aim of the Proactive Ethics Intervention study was to investigate whether the proactive intervention of a clinical ethicist...

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Heal the sick and comfort the dying, but do not get them mixed up!

"Heal the sick and comfort the dying, but do not get them mixed up!"-- Colin Douglas, BMJ 2...

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Medicine’s Role in the “Good Death”

The AMA's December 2013 issue (over 100 pages) of Virtual Mentor is devoted to Medicine’s Role in the "Good Death."  Here is the TOC: Dying in the Twenty-First Century - Sophia Cedola and Kenneth Prager Integrating Palliative Care with Disease-Modifying Therapy - Craig D. Blinderman When Physicians and Surrogates Disagree about Futility - Kenneth Prager Medical Students and Dying Patients - Audrey...

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Friday Humor re ICU Life Support

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Vote for Medical Futility Blog

This is your weekly reminder to VOTE for the Medical Futility Blog in the 2013 ABA Journal Blawg 100.  Polls remain open until December ...

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Medical Futility Law & Ethics: Where Are We Now?

On Tuesday, I am presenting Quarterly Ethics Grand Rounds for HealthPartners and Regions Hospital in Minnesota.  The title is "Medical Futility Law & Ethics: Where Are We Now?"  Just a few weeks ago, ethics committee leaders from more than ten area hospitals gathered to compare their futility policies.  In Tuesday's presentation I will expand on the formal remarks that I made at that event. At the late November event, I felt compelled...

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