A Nudge in the Right Direction with a Stick the Size of CMS: Physician-Patient Communication at the End of Life

Saint Louis University School of Law student Katherine B. Ledden has posted (here too) "A Nudge in the Right Direction with a Stick the Size of CMS: Physician-Patient Communication at the End of Life."  



This article appears in the Saint Louis University Journal of Health Law and Policy, Vol. 6, No. 2 (2013).  Here is the abstract:

   

This paper examines the physician-patient relationship at the end of life and recommends a change to the hospital Medicare Conditions of Participation to remedy many palliative care failures. Most individuals will rely on palliative care at some point in their lives, likely in the form of hospice at the end of life. However, the promise palliative care provides to patients and caregivers has been broken. Perverse Medicare hospice benefits have led to a rise in a for-profit hospice industry, questionable quality, and either very long or very short stays. Additional end-of-life breakdowns occur in the areas of physician-patient communication and pain management.



Two states, California and New York, have passed right-to-know statutes requiring physicians to speak with patients about end of life treatment. Other states are considering following suit and the Uniform Law Commission has considered, and rejected, a right-to-know uniform act proposal. However, questions remain about the enforceability of the acts and after which state’s statue the uniform act might be modeled. This paper suggests that a federal solution would provide a sweeping and uniform solution to the problem of physician-patient communication. A federal legislative solution seems unlikely given the burden of passing a bill in Congress. Instead, CMS should consider revising the hospital Conditions of Participation to encourage physicians to speak with their patients about end-of-life treatment.