Minnesota Court Strikes Assisted Suicide Statute as Unconstitutional

Today, the Minnesota Court of Appeals published its opinion in State v. Final Exit Network.  The appeals of FEN and several individual defendants concern the constitutionality of Minn. Stat. § 609.215, which criminalizes speech that “advises” and “encourages” another in taking the other’s life.  



The district court had determined that criminalizing speech that “advises” suicide violates the First Amendment.  The Court of Appeals affirmed, holding that Minn. Stat. § 609.215’s criminalization of speech that “advises” and “encourages” another in taking the other’s life infringes on protected speech and is facially overbroad. 



But the Court of Appeals also held that the record contains sufficient evidence to establish a reasonable probability that the defendants violated the constitutional prohibition on "assisting" suicide.

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20th Anniversary of Landmark Informed Consent Case, Arato v. Avedon

Twenty years ago today, on September 30, 1993, the California Supreme Court issued its opinion in Arato v. Avedon.



Arato had been diagnosed with pancreatic cancer.  The oncologists recommended a course of chemotherapy medication and radiation treatment.  But Arato and his wife were never told the statistical probability of his survival (which was quite low). About eight months after his surgery, Arato’s cancer returned and quickly spread. He died shortly thereafter. 



In the subsequent lawsuit, Arato’s wife alleged that the oncologists had not adequately disclosed statistical mortality information of the cancer and thus failed to obtain his informed consent to undergo the treatment.  Arato's wife claimed that had he known the bleak truth regarding his chance for survival Arato would not have sought treatment and, instead would have chosen to die peacefully at home. 



But the jury found in favor of the defendants . The court of appeals reversed and ordered a new trial.  The California Supreme Court reversed, reinstating the defense verdict.



Today, twenty years later, I am optimistic that clinicians have a clearer and stronger duty to inform patients about end-of-life options.  There are new statutes in California and New York.  And the expanded California duty is now being tested in the Hargett v. VITAS case.

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U.S. Clinicians Fail to Follow Advance Directives

Today's Sarasota Herald Tribune reports that a recent lawsuit for failure to follow an advance directive is not unique.  Over the past three years, regulators have cited 15 Florida nursing homes for failure to honor advance directives.  

But both the frequency and severity of regulatory enforcement is insufficient to motivate better policies and procedures.  Earlier this year, I outlined a broader range of legal sanctions that should motivate better compliance with advance directives.  

The Hallada v. Lakeland case is one instance of increased enforcement of patient rights at the end of life.  [UPDATE] Last week, the 10th Judicial Circuit Court is presently considering the denied the defendants healthcare facilities' motion to dismiss several claims for damages and granted only their motion to dismiss a claim for injunctive relief.

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Critical Care Consensus Conference on Criteria for Futility?

Over at the Hastings Center's Over 65 blog, Muriel Gillick argues that it "may be time for critical care specialists to convene a consensus conference to see if they can agree on the criteria for futility."   



Gillick continues:  "If a majority of the nation’s critical care experts came up with criteria for futility, whether the same ones used in this study or some modification, then Medicare would be in a good position to decide to pay only for clinical care that met the newly defined standard of care."  



Dr. Gillick's argument is valid but not sound.  Given extreme variability among critical care clinicians, it seems unlikely any such consensus can be reached anytime soon.  

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10th International Conference for Clinical Ethics Consultation

The 10th International Conference for Clinical Ethics Consultation will meet in Paris from April 24-26, 2014.  The theme is "The Patient's Voice."  A preliminary program is available here.



The deadline for proposals has been extended to October 10.  

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UK Coroners Court Hears Yet Another Unilateral DNAR Case

I have blogged over a dozen British inquiries into unilateral DNAR orders over the past year.  Yesterday, a coroners court heard yet another.



Lawyers for Audrey Hannah Peace questioned Dr. Anthony Macklon, a consultant physician at the University Hospital of North Durham over his failure to tell Mrs. Peace's family that doctors had decided not to resuscitate her if her heart stopped beating.  Dr. Macklon said that Mrs. Peace had stopped responding to treatment and that the family were informed of end of life path way.  But he admitted failing to inform her daughters of an earlier decision not to resuscitate their mother was an 'omission'.

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Health Law Chair Position at Loyola University Chicago

Loyola University Chicago School of Law is seeking to fill the recently created Bernard J. Beazley Chair in Health Law and Policy.  Inquiries should be directed to Prof. Spencer Weber Waller, the chair of the search committee. Interested candidates should submit an application here.



Bernard J. Beazley Chair in Health Law and Policy



Loyola University Chicago School of Law, a well established urban Jesuit law school, is currently seeking candidates to fill its recently created chair in health law and policy, named in honor of law school alumnus and donor Bernard J. Beazley.  This twelve month position will entail an appointment to an endowed chair to be made at the level of full Professor of Law.



The responsibilities of the Bernard J. Beazley Chair include:

1. Scholarly research and publication;


2. Teaching courses in health law and policy and related areas of individual expertise;


3. Participation in faculty governance;


4. Active involvement in student mentoring and counseling;


5. Engagement with faculty on health law and policy matters both within the School of Law and throughout the University;


6. Together with other chairs and senior faculty, providing leadership for integrative research activities; and


7. Significant engagement with academic institutions and professional organizations in health law and policy, including frequent participation in meetings and symposia.

The qualifications required for the Bernard J. Beazley Chair are:

1. Juris Doctor degree (J.D.);


2.  Broad recognition for scholarly distinction in a recognized area of health law and policy;


3.  Established publication record in health law and policy;


4. Clearly developed long term research agenda; and


5. Extensive teaching experience.

Additional valued qualifications include:

1. Significant practice experience in health law and policy or related area;


2. Strong commitment to social justice issues; and


3. History of active engagement with legal practice groups in areas related to health law and policy.

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New Guidebook - I’ve Got Nothing to Lose by Trying It

The UK charity Sense About Science, has published a new guide, I’ve Got Nothing to Lose by Trying It.  



Patients with chronic conditions such as cancer, multiple sclerosis, and motor neurone disease are often desperate for a cure and are particularly vulnerable to being sold false hopes through the internet, the media, and advertising.  



The guide is aimed at helping help patients make informed decisions when confronted with the plethora of treatments available.  Specifically, the guide:

• Gives practical advice to help patients examine the available evidence so that they can weigh up claims and make informed decisions. 


• Explains what to look for in a news story about a medical breakthrough.


• Explains how clinical trials work.


• Explains what to look for on any website that promotes a new treatment.  


• Advises on participating in clinical trials.


• Indicates where to find trusted sources of medical information.

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Beth Israel Deaconess Urges Wiser End-of-Life Spending

This week, the Greater Boston Interfaith Organization (GBIO) met with area hospital and insurance leaders to ask what they are doing to make sure health care costs don’t rise any faster than inflation.



Beth Israel Deaconess Medical Center CEO Kevin Tabb talked about better coordination of care and attention to quality will reduce spending.  But he also issued a specific challenge to the audience:  help friends and family members curb the impulse to try every last thing possible at the end of life.  

It would be invaluable if all of you, if faith communities, would take a leadership role in statewide discussions about how we can ensure that we are doing better in end-of-life care.

That includes but isn’t limited to helping us ensure that we are spending our money as wisely as possible.

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Legal Briefing: Home Birth and Midwifery

My latest legal briefing column, "Home Birth and Midwifery," (with Deborah Fisch) has just been published.  Journal of Clinical Ethics 24(3) (Fall 2013): 293-308.



This Article covers recent legal developments involving home birth and midwifery in the United States. Specifically, we focus on new legislative, regulatory, and judicial acts that impact women’s access to direct entry (non-nurse) midwives. We categorize these legal developments into the following 12 categories.

1.   Background and History

2.   Certified Nurse-Midwives

3.   Direct Entry Midwives

4.   Prohibition of Direct Entry Midwives

5.   Enforcement of Prohibition

6.   Challenges to Prohibition

7.   Forbearance without License

8.   Voluntary Licensure

9.   Unclear and Uncertain Status

10.  Growth of DEM Licensure

11.  Licensure Restrictions

12.  Medicaid Coverage

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Hamline University Health Law Institute - 2013 Highlights

The Hamline University Health Law Institute has published its 2013 Highlights, a 24-page booklet summarizing the program and accomplishments from the 2012-2013 academic year.

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Patient Dies Before Court Rules on Continued Life Support

Just a few days ago, an Akron, Ohio court ordered Summa Hospital to continue life support for William Basheotis.  As is usually the case, this was just a temporary restraining order aimed at preserving the status quo until the parties could muster and present the relevant evidence and legal argument.  



But as is very often the case, the court never reached the underlying merits of the lawsuit.  The patient died before the scheduled hearing.  

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Limits of Critical Care Prognostication - 30 Second Video

When Dr. Yankovic first enters the ICU, this looks like a clear case of medical futility.  But Dr. Yankovic persists and is successful in resuscitating the patient.

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Medical Futility Blog - Over 1000 Visits a Day

Medical Futility Blog has been receiving an average of 700 page views per day.  The same content is republished on several other sites (like Westlaw and the AJOB blog) and hits there exceed 300 per day.  So, if my math is right, this blog is getting over 1000 hits per day.  

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Medical Futility is Featured Blog by American Bar Association

Medical Futility is currently the featured blog by American Bar Association.

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STOP THERAPEUTIC OBSTINACY: PENALTIES FOR ADMINISTERING FUTILE ICU INTERVENTIONS

My latest post over at the AJOB blog:  STOP THERAPEUTIC OBSTINACY: PENALTIES FOR ADMINISTERING FUTILE ICU INTERVENTIONS.

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Court Orders Summa Akron City Hospital to Keep Basheotis on Life Support

William Basheotis (78) does not having a living will and his sister, Eugenia (80), is his sole next of kin. Clinicians at Summa Akron City Hospital told Eugenia that her brother was terminally ill and that his life support would cease at 5:00 p.m. on Sept. 13 unless she won a court order or put her brother in another medical facility.



On Friday afternoon, just hours before the deadline, Eugenia obtained that court order, keeping her brother on life support.  Summit County Probate Court Judge Elinore Marsh Stormer granted the temporary restraining order land scheduled a hearing for a preliminary injunction this coming Friday, September 20. 



Eugenia's attorney, Kevin Breen, said that Eugenia was unprepared for the sudden life-support decision and simply wants to further contemplate her brother’s future medical care. “We’re just trying to step back and determine the best course. If [ending life support] is the best course, so be it. But there are plenty of questions at this point and she wanted to buy some time to unravel a few things,”  (Akron Beacon Journal)

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Medical Futility Disputes Rarely Belong in Court

I was pleased to see Wesley Smith agree with so much of what leading critical care ethicists Bob Truog and Doug White wrote about the resolution of futility disputes in a recent JAMA Internal Medicine editorial.  



But near the end of his column, Smith decidedly departs from Truog and White.  Smith writes: " intractable disputes belong in open court, with a right to discovery, deposition, cross examination, appeal–and press coverage."  In contrast, Truog and White merely encourage "informing surrogates of their right to seek judicial intervention."



As Doug White and I argued in JAMA, last year, "judicial

intervention is undesirable for the vast majority of decisions

in medicine."  It is too slow and cumbersome.  Indeed, in the report on which Truog and White comment, 104 of the 123 study patients died during hospitalization or within 6 months.  The process Smith calls for would take far longer than that.  The patient would be dead long before the court could ever render a decision.  The consequence is tantamount to a rule that clinicians must categorically acquiesce to surrogate demands.  



Admittedly, White and I defended some role for the courts.  "Preserving the possibility of appeal to the courts in medical futility cases may have beneficial effects at the societal level that are distinct from the benefits sought in individual cases."  These include "shining a spotlight on an unresolved social issue and "casting a shadow that allows extrajudicial solutions."  But judicial intervention in every case elevates fairness too far over efficiency at best and is simply unworkable at worst.

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World's Oldest Man Dies at 112

Salustiano Sanchez-Blazquez, the world's oldest man, died on Friday near Niagara Falls, New York. He was 112.  



Sanchez-Blazquez is exceptional, since over 90 percent of all super-centenarians are female.  Arturo Licata, 111, of Italy, is now the leading candidate to be officially recognized by the Guinness Book of World Records as the current world's oldest man.

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Growing Legal & Ethical Clarity on Legitimacy of Hastening Death by VSED

In 2011, I argued that voluntarily stopping eating and drinking is a legal option to hasten death.  Specifically, I established that

both contemporaneous and (most) non-contemporaneous decisions for VSED are legally permissible. Individuals may refuse nutrition and hydration just as they may refuse other intrusions on their personal autonomy. This right is grounded in the common law of battery, statutes, state constitutions, and even the U.S. Constitution. Moreover, VSED does not, as many believe, constitute abuse, neglect, or assisted suicide. Even ex ante decisions for VSED (exercised through an advance directive or a surrogate decision maker) are legal in most United States jurisdictions.

The legality and ethics of VSED is now getting more attention.  There is a new lawsuit against a nursing home for disallowing VSED.  And in its September 2013 monthly publication NewsLine, the National Hospice & Palliative Care Organization has encouraged its 2000 member hospices to develop policies on VSED:

If a patient decides to forgo eating and drinking in order to hasten his or her own death, how should a hospice respond?

From a legal standpoint, “voluntarily stopping eating and drinking” (VSED) is an option for individuals in all 50 states and distinct from the natural reduction in nutritional intake that accompanies the dying process. It is a voluntary decision by patients with decision-making capacity, with the explicit intention of hastening death.

While legal, however, the peer-reviewed literature does not reflect strong ethical consensus about whether, how, and for what reasons hospices should or should not participate in patients’ care decisions about VSED. . . .  The Council also encourages each hospice to explore these questions in their organizational ethics committees, with the ultimate goal of establishing a policy or guidelines to address VSED so staff is prepared when such situations arise.

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Minnesota Supreme Court Upholds Lost Chance Causation - Again

In May 2013, the Minnesota Supreme Court recognized “loss of chance” as a cause of action for medical malpractice.  No longer must plaintiffs establish "but for" causation.  No longer must plaintiffs establish that without the defendant's negligence it is "more likely than not" there would have been no injury.



But by June, the defendants and some professional medical associations petitioned the Supreme Court to rehear the case.  Petitions for rehearing are rarely granted.  And this one was no exception.  



This week, the court denied the petition.  Today, the court issued a judgment reversing the trial court which had granted summary judgment to the medical defendants.



This is important to all sorts of patients.  But it has an especially big impact on medical futility cases.  In Wendland v. Sparks, for example, the clinicians unilaterally refused CPR.  While CPR was probably not going to be effective had it been offered, there was a small chance it could work.  The Iowa Supreme Court held that the family could recover damages for that loss of chance, even if very small.  

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Futile Interventions Question Medical System's Focus

This well-done 7-minute news report from ABC News Australia is worth another view in light of the widely-reported new JAMA Internal Medicine report measuring the amount of non-beneficial treatment provided in the United States.

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Frequency & Cost of Treatment Perceived to be Futile in Critical Care

A UCLA/RAND research team led by Thanh Huynh wanted to better quantify the prevalence and cost of physician-perceived futile treatment in adult critical care.  



In an article published (and available for free) online today in JAMA Internal Medicine, the authors write that intensivists report the care they were delivering was futile 11% of the time and probably futile in another 8.6% of the time.  



The most common reason why intensivists perceived treatment as futile was that the burdens of aggressive therapy grossly outweighed its potential benefit. Other reasons included:

• Treatment could never achieve the patient’s goals


• Death was imminent


• Patient would never be able to survive outside of an ICU


• Patient was permanently unconscious

Bob Truog and Doug White published an invited commentary offering some cautions about defining futility and about the study's conclusions about cost savings.  

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EOL Suicide on Coronation Street

Coronation Street is the longest running soap opera in the world, airing since 1960.  BBC News has announced that the show will explore the issue of the 'right to die' when one of the most popular characters, terminally ill Hayley Cropper, decides that she wants to take control of her death.



Hayley has been diagnosed with inoperable pancreatic cancer.  As her health deteriorates she will decide she wants to take her own life.  Hayley becomes very concerned about losing control as the disease progresses.  The palliative care Hayley receives is superb but she is scared that the pain relief can cause confusion and a loss of clarity.



This is especially important, because Hayley is the first transgender character in a British soap.  She is concerned she could regress to being Harold, she's already had one such nightmare. She wants to die in peace with clarity of thought, she wants to die as Hayley - the identity she has spent her whole life fighting for.

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Health Law at APHA Annual Meeting

Last month, I identified four "must go" health law conferences.  



This morning, I reviewed the significant number of law-related sessions at November's American Public Health Law Association meeting.  I really must add APHA to my list (now 5 long) of "must go" health law conferences.  

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California Employers Cannot Prohibit Employees from Administering CPR

California Assembly Bill 633 provides:  "An employer shall not adopt or enforce a policy prohibiting an employee from voluntarily providing emergency medical services, including, but not limited to, cardiopulmonary resuscitation, in response to a medical emergency . . . ."   The bill passed out of the Assembly and is being considered by the Senate. 



A.B. 633 seeks to respond to an incident in Bakersfield earlier this year, in which an 87-year-old woman died following cardiac arrest.  A seven-minute 911 call revealed that a staff member of  the independent living center where the woman was a resident declined requests from the 911 operator to perform CPR or to find someone else to perform CPR. 







A.B. 633 seeks to ensure that employers not adopt or enforce any policies that prohibit an employee from voluntarily providing emergency medical services in response to medical emergency.  Interestingly, a Senate Report concedes that "currently, it is unclear whether such policies [even] exist."  Nevertheless, the Report rightly observes that "employees might not provide emergency services out of fear that such policies might exist, which can lead to discipline or termination."  AB 633 provides clarity in the law to protect individuals who choose to help someone in emergency situations.

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Limitations of Big, Fat Ethics Books

I love this scene from the movie adaptation of John Grisham's The Rainmaker.  The scene includes two lawyers played by Danny DeVito and Matt Damon.  The more experienced lawyer, DeVito, is giving some advice to the newly licensed Damon:  "In law school, they don't teach you what you need to know.  It's all theories and lofty notions, and big, fat ethics books."



I was reminded of this scene as I prepare to cover informed consent in my Healthcare Quality & Liability class.  I suspect that I would feel much the same way, if I were teaching traffic laws.  "Do not drive faster than 55 mph.  Come to a complete stop at a stop sign.  Nobody ever really does these things.  But it is what the law requires."      

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Doctors Cruelly & Needlessly Prolong Lives of the Dying

While now 20 years old, this quote by Harvard geriatrician Muriel Gillick still has too much truth.

Doctors cruelly and needlessly prolong the lives of the dying (for reasons of) avarice and passion for technology.

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