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, requesting immediate relief and an order compelling Oakland Children's Hospital to place certain medical devices in Jahi Mcmath necessary for her transfer to an outpatient facility. 



The California Court of Appeal denied this request.  The appellate court instructed the attorney to instead seek such relief in the Alameda County Superior Court, pursuant to that court's order of December 26, 2013, which states in pertinent part: "In the event . . . petitioner wants an increased level of treatment and support that CHO is unwilling to provide, then the parties may seek the assistance of the court at any time." 



The Court of Appeal is aware that the Superior Court extended its temporary restraining order to 5:00 p.m. on January 7, 2014, thereby precluding the hospital from removing Jahi Mcmath from the ventilator or ending any of the current treatment and support provided until after that deadline. 



In light of the Superior Court's December 30 order, the California Court of Appeal instructed Mcmath's attorney to file a status report by 4:00 p.m. on Friday, January 3, 2014, providing current information on any matter pertinent to this petition, including, but not limited to, the parties' specific plans for transporting Mcmath to a different facility.  (J.M. et al. v. The Superior Court of Alameda County, No. A140590.)

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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.  

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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.  But as the injunction period extends, there is little practical difference between obtaining a preliminary injunction (pending disposition) and winning on the merits.



Ten years ago, the parents of six-year-old Jesse Koochin obtained an injunction against Primary Children's Hospital in Salt Lake City.  The judge granted the parents the right to take Jesse home, where they kept him on a ventilator and said they were convinced that he could get better with alternative medical treatments. A month later, Jesse died.



Twenty years ago, Sarasota Memorial Hospital discharged 13-year-old Teresa Hamilton to her parents, to remain on a ventilator at home at the hospital's expense.  A court did not order that arrangement.  But the hospital agreed to the plan in light of uncertain Florida law at the time.

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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 exercise


• 4th and 14th Amendment privacy


• Disability discrimination under the ADA 


• Disability discrimination under the Rehabilitation Act

In 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 not getting a chance to adequately cross-examine the neurologist, seems reasonable.  

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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 quite the opposite.  Clinicians are acting out of concern for the patient.

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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 insurance company will pay for the transfer and ongoing interventions.



But Jahi needs additional procedures and equipment before she would be accepted into the other facility. The hospital is unwilling to provide that.  







Transfer is an accepted dispute resolution pathway in disputes over medical futility and conscience-based objection.  Transfer is built into both state statutes and facility policies.  But it really has no application here, where the patient is already dead.  The family has no   

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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 respondents consistently affirmed their status as virgins, yet reported a virgin birth without the use of reproductive technologies.

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Rudolph the Red-Nosed Reindeer and Informed Consent

CollegeHumor's Favorite Funny Videos

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Your Probability of Death

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

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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 death


• December 20 - Judge Grillo orders hospital to continue ventilation until an independent medical examination


• December 23 - Judge Grillo orders hospital to continue ventilation and IV fluids until December 30


• December 24 - Dr. Paul Fisher, chief of pediatric neurology at Stanford's Lucile Packard Children's Hospital, will testify on his independent examination


• December 30 - Judge Grillo's order expires

California law requires a "reasonable accommodation" after a determination of death by neurological (as opposed to cardiopulmonary) criteria.  And a "reasonable accommodation" is widely offered as standard practice, even when not statutorily mandated.  We are now way past that period in this case.  



Furthermore, two separate Children's physicians have already determined that Ms. McMath was dead.  And, at the request of the family, three additional independent physicians (unaffiliated with Children's and either selected or approved by Ms. McMath's family/next of kin) examined Ms. McMath.  Each confirmed the diagnosis of death.



In short, there is no legal basis to order the hospital to continue warming the corpse of Jahi Mcmath.  The diagnosis has been confirmed.  The family has been reasonably accommodated.  



Yes, this is a sad case.  And, yes, Christmas is tomorrow.  But we really should be able to stop administering intensive medical to corpses.  If we cannot stop here, then it seems we cannot stop anywhere.

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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 it is not in the best interests of the patient to continue to receive medical intervention. 

This makes it lawful to discontinue all life-sustaining treatment and medical support measures including the termination of clinically assisted nutrition and hydration (CANH). The withdrawal of such apparatus, which is classified as medical treatment, is deemed as an omission rather than negligence or an act which causes death. In light of this, the law holds that doctors are merely allowing such patients to die a natural death rather than bringing about their death. 

The medical debate on the matter, which is underpinned by a series of intertwined medico-legal concepts which justify the English Law position, is often considered as settled. The UK Court of Protection was nevertheless recently asked to resolve a conflict between the family of a Muslim PVS patient who objected to his doctors' intention to withhold resuscitation or ventilation should there be a life-threatening event on the grounds that such measures would be futile and thereby not in the patient's best interests. The family instead insisted that all steps should be taken to preserve the patient's life until such time that God takes it away. 

This paper seeks to discuss how such medical futility or at least the semantic conceptual landscape (which also includes best interests, omissions and medical treatment) that determines the legal position is dealt with under Islamic Law with a view to assess its compatibility with English Law. Some of the key questions that the article will consider as part of the above will be: 

• Does Islam allow all medical interventions, including CANH to be withdrawn when these are not expected, by medics, to bring any medical benefit? 

• Or does it instead deem their withdrawal from such patients, who may still be able to breathe naturally, as an activity which is tantamount to killing? 

The work concludes by emphasizing the need for more religiously and culturally sensitive discussions to take place among medical, legal and religious representatives.

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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 is very high.  They similarly exceed the scope of their authority when they make treatment decisions for too much treatment where the chance of success is very low.

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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, mother, Nailah Winkfield, will not give up, even after getting a second independent opinion.  She explains that neurosurgeons have been wrong before.  In this brief ABC News interview, she expresses a fundamental misunderstanding of death ("her hands are warm").  She also expresses prognostic mistrust, belief in miracles, guilt, loyalty, and many other strong emotional and psychological motivations typical of surrogates in medical futility disputes.

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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 creates a presumption that a woman could rebut in her advance directive.  But in Texas the mandate is categorical.  



It is currently being applied by JPS Hospital in Fort Worth, Texas.  Clinicians there are maintaining Marlise Munoz on life support contrary to her wishes.  Perhaps this might be a case prompting needed legislative change or a constitutional challenge.

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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, JD


• Landmarks from the Law: Classic Cases in Medical Ethics -- Martin Boyle, JD; Joseph Topinka; Karin Zucker, MA, JD, LLM, MSF, FCLM


• Basics of Bioethics -- Thomas Jefferson; Douglas Swift; Karin Zucker, MA, JD, LLM, MSF, FCLM


• Use of Policy Analysis and Ethics in Hospital Litigation -- John Hall, MD, JD, MBA, FCLM


•  “Medical Malpractice Seen from Both Sides Now” -- Rosemary McGeady, MD, JD, FCLM


• The Use of Clinical Practice Guidelines in Determining Standard of Care -- Christopher L. Taylor, MD, MBA


• Defensive Medicine, Tort Reform and Empirical Evidence -- Saurabh Jha, MD


•  “Hold Me Liable for What, He’s Not My Patient” -- Howard Morgan, MD, FCLM

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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 an individual is pronounced dead by determining that the individual has sustained an irreversible cessation of all functions of the entire brain, including the brain stem, there shall be independent confirmation by another physician.

In 2009, a new California statute (Cal. H&S Code 1254.4) expanded the obligations of hospitals with respect to patients declared dead on the basis of neurological criteria. 

(a) A general acute care hospital shall adopt a policy for providing family or next of kin with a reasonably brief period of accommodation, as described in subdivision (b), from the time that a patient is declared dead by reason of irreversible cessation of all functions of the entire brain, including the brain stem, in accordance with Section 7180, through discontinuation of cardiopulmonary support for the patient. During this reasonably brief period of accommodation, a hospital is required to continue only previously ordered cardiopulmonary support. No other medical intervention is required.

(b) For purposes of this section, a "reasonably brief period" means an amount of time afforded to gather family or next of kin at the patient's bedside.

(c)(1) A hospital subject to this section shall provide the patient's legally recognized health care decisionmaker, if any, or the patient's family or next of kin, if available, with a written statement of the policy described in subdivision (a), upon request, but no later than shortly after the treating physician has determined that the potential for brain death is imminent.

(2) If the patient's legally recognized health care decisionmaker, family, or next of kin voices any special religious or cultural practices and concerns of the patient or the patient's family surrounding the issue of death by reason of irreversible cessation of all functions of the entire brain of the patient, the hospital shall make reasonable efforts to accommodate those religious and cultural practices and concerns.

(d) For purposes of this section, in determining what is reasonable, a hospital shall consider the needs of other patients and prospective patients in urgent need of care.

(e) There shall be no private right of action to sue pursuant to this section.

It appears that the hospital has already provided the family of Jaha McMath with the required "period of accommodation."

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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. Melchert-Dinkel, which concerns a similar question of constitutional free speech law. 

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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 support technology.  She says: "I just feel my daughter is trapped inside of her body, just screaming to get out of there."  "I will not let them pull the plug on my child."  Ms. Winkfield even started a Facebook page called "Keep Jahi Mcmath on life support."

Furthermore, the family has served the hospital with a "cease and desist letter" that says the hospital does not have the family’s consent to remove life support without permission. The letter from attorney Christopher Dolan said that "no action" should be taken regarding the life and death of Jahi McMath until there can be a "judicial termination."

I have not seen Dolan's letter.  But families almost always lose these sorts of cases.  California law is uncertain in lots of situations, like dialysis for a vegetative patient.  But it does permit healthcare providers to unilaterally stop treatment for a dead patient.  Yes, some short-term  accommodation is appropriate.  But ultimately, family consent is not required.

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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 like Scientific American and the New York Times.



But the issue seems especially active in California.  At least for long-term care facilities, for the past two decades, California has provided a decision making mechanism called either an "Epple Committee" or California Health & Safety Code 1418.8 "interdisciplinary team" (IDT).  But there is a battle brewing over the adequacy and very legality of the IDT.

Robert Gibson

Defending the IDT



On the one hand, Robert Gibson, a San Diego clinical psychologist and lawyer, has written some cogent arguments and explanations (here and here and here) defending the IDT.  



In one of his articles, Dr. Gibson concludes:  "Given the requirements of 1418.8 to assess decision-making capacity, the standards enunciated, and the numerous safeguards built into the statute--including the requirement for an impartial 'patient representative' such as an ombudsman to serve on the IDT--HSC 1418.8 still seems the best solution to a troubling problem."



Attacking the IDT

Mort Cohen

On the other hand, some groups like Disability Rights California have illustrated some concerns.  Going further, California Advocates for Nursing Home Reform filed a lawsuit in Alameda Superior Court challenging the constitutionality of 1418.8.  



CANHR is represented by Mort Cohen, of Golden Gate University School of Law.  According to Professor Cohen:  “This statute singles out nursing home residents for intrusive treatment without notice or a chance to oppose. In California, we give these residents fewer protections than we do prisoners or persons with mental illness."

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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 Panels."

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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, we undertreat symptoms because of this fear that opioids are inherently harmful and that giving opioids might shorten life.”

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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 the core argument:  

This case challenges the assumption that vague, antiquated prohibitions of assisted suicide pertain to aid in dying. The assumption is unfounded. . . .  Such laws are intended to prevent the impulsive act of an otherwise healthy person to end his life, perhaps due to situational depression, causing impaired judgment. The choice of a mentally competent, terminally ill patient to cut short suffering before death, when the patient finds the dying process unbearable, is fundamentally different and not addressed by such laws.

Notably, the court accepted an amicus brief in the case filed by the New Mexico Psychological Association. It concludes that “the practice of good professional psychology in New Mexico requires that the law … recognize that aid in dying is not a form of suicide.” 



The trial included two days of testimony from patient and physician plaintiffs, and expert witnesses.  Patient plaintiff 49-year-old Aja Riggs testified about being diagnosed with advanced uterine cancer and wanting the comfort of knowing the option of aid in dying is available if her suffering in the final stages of her illness becomes unbearable.  

The judge said she intends to rule on the case within 30 days.

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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 20.

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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 not
knowledge but action." I write to change the world by changing the minds
of my readers. My goal is to improve the lives of older Americans by analyzing
and critiquing the current legal landscape and advocating for reforms. To be
sure, I write to influence other academics, but I am more interested in
informing and persuading lawyers and lawmakers. To that end, I write in many
different forums, including books, casebooks, treatises, traditional academic
articles, and shorter articles directed at practicing attorneys.

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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 issues

• Introduction 




• Ethical principles 




• The Mental Capacity Act 2005 




• Mental capacity in patients with PDOC 




• Provisions within the Act to support decision-making for patents who lack capacity 




• Health and Welfare Lasting Power of Attorney 


• Court-appointed Welfare Deputy 


• Independent Mental Capacity Advocate 




• Process to establish ‘best interests’ 




• The role of the healthcare team 


• The role of the family 




• A summary of key roles in decision-making 


• Practical arrangements for best interests decision-making 


• Ethical considerations – the subjective challenges 




• What is it like to be in VS or MCS? 


• The evidence on pain 


• Decisions about life-sustaining treatments in PDOC




• Applications to the Court of Protection 




• Applications for withdrawal of CANH 




• Other factors affecting referral to the Court of Protection 




• Individual planning 


• Clinicians and conscientious objection

Section 5: End-of-life issues

• End-of-life planning 




• The family role in planning end-of-life care




• Decisions about life-sustaining treatment and ceiling of care 




• ‘Do Not Attempt Cardiopulmonary Resuscitation’ (DNACPR) decisions


• Ongoing DNACPR decisions 




• Withdrawing other life-sustaining treatments 




• Permanent vegetative state


• Permanent minimally conscious state 




• Practical management of end-of-life care for patients with PDOC




• Challenges for end-of-life care and place of death


• End-of-life care following withdrawal of CANH 


• Certification of death 


• Suitable setting for end-of-life care 

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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 medicine

Pages 1-9

Robert M. Taylor



Chapter 2 - The analysis and resolution of ethical dilemmas

Pages 11-23

Robert C. Macauley



Chapter 3 - Ethics committees and consultantsPages 25-34

C. Christopher Hook, Keith M. Swetz, Paul S. Mueller



Chapter 4 - Legal process, litigation, and judicial decisionsPages 35-61

H. Richard Beresford



Chapter 5 - Law, ethics, and the clinical neurologistPages 63-78

Lois Margaret Nora



Chapter 6 - Religion and medical ethicsPages 79-89

Ronald M. Green



Chapter 7 - Professional conduct and misconductPages 91-105

Emily B. Rubin



Chapter 8 - Medical error and disclosure

Pages 107-117

Andrew A. White, Thomas H. Gallagher



Chapter 9 - The good doctor: professionalism in the 21st centuryPages 119-132

Amy Y. Tsou, Claire J. Creutzfeldt, James M. Gordon



Chapter 10 - Palliative treatment of chronic neurologic disordersPages 133-139

Stefan Lorenzl, Georg Nübling, Klaus Maria Perrar, Raymond Voltz



Chapter 11 - Care of the dying neurologic patientPages 141-145

Raymond Voltz, Georg Nübling, Stefan Lorenzl



Chapter 12 - Withdrawing and withholding life-sustaining treatmentPages 147-153

Thomas I. Cochrane



Chapter 13 - European perspectives on ethics and law in end-of-life carePages 155-165

Ralf J. Jox, Ruth J. Horn, Richard Huxtable



Chapter 14 - Medical futilityPages 167-179

Lawrence J. Schneiderman, Michael De Ridder



Chapter 15 - Assisted suicide and euthanasiaPages 181-189

Agnes van der Heide



Chapter 16 - Brain deathPages 191-203

Eelco F.M. Wijdicks



Chapter 17 - Coma and disorders of consciousnessPages 205-213

Marie-Aurélie Bruno, Steven Laureys, Athena Demertzi



Chapter 18 - Ethical issues in the care of the neurologically devastated infantPages 215-224

Tracy K. Koogler



Chapter 19 - Ethical issues in states of impaired communication with intact consciousness and languagePages 225-231

Leo Mccluskey



Chapter 20 - Ethical issues in the neurology of aging and cognitive declinePages 233-242

Eran Klein, Jason Karlawish



Chapter 21 - Ethics in neurodevelopmental disabilityPages 243-263

Eric Racine, Emily Bell, Michael Shevell



Chapter 22 - Ethical issues in neurogenetic disordersPages 265-276

Peter B. Kang



Chapter 23 - Public policy and healthcare systemsPages 277-287

Marc R. Nuwer



Chapter 24 - Research involving human subjects: ethical and regulatory issuesPages 289-299

Jerry Menikoff



Chapter 25 - The ethics of clinical research in low- and middle-income countriesPages 301-313

Timothy Lahey



Chapter 26 - The ethics of surgically invasive neuroscience researchPages 315-321

Paul J. Ford, Abhishek Deshpande



Chapter 27 - The ethics of neuroenhancementPages 323-334

Anjan Chatterjee



Chapter 28 - Neuroethical issues in clinical neuroscience researchPages 335-343

James A. Anderson, Marleen Eijkholt, Judy Illes



Chapter 29 - Neurologic disorder and criminal responsibilityPages 345-356

Gideon Yaffe



Chapter 30 - Pragmatic neuroethics: the social aspects of ethics in disorders of consciousnessPages 357-372

Eric Racine



Chapter 31 - The nature of consciousness

Pages 373-407

Adam Zeman, Jan Adriaan Coebergh



Chapter 32 - Dementia and personal identity: implications for decision-making

Pages 409-418

Winston Chiong



Chapter 33 - The definition and criterion of deathPages 419-435

James L. Bernat

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Triage

Source: NursingSchoolHub.com

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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, in terms of reducing the legal risk (or perception of legal risk) that drives clinicians to "cave-in" to surrogate demands for inappropriate, non-beneficial, and disproportionate treatment?  Here are a few observations.



1.  Courts defer (and want to defer) to good internal dispute resolution processes.  The fact that multiple facilities in the area have adopted the same process tends to show that such a process is reasonable.    



2.  On the other hand, while courts defer to medical and ethical expertise, these model policies lack specific clinical standards and are focused purely on procedure.  Since courts know procedural due process, they may be less likely to defer.  This is especially true, if the court finds the process to be unfair, for example, by failing to include independent, neutral members on the relevant committees.



3.  Only Texas, Hawaii, and a handful of states specifically provide legal protection (safe harbor immunity) for following the recommendation of an ethics committee.  



4.  So, in most jurisdictions the ethics committee process only serves to show the careful deliberation of the treating physician and facility.  It expands the charting and documentation that typically deters lawsuits.  The plaintiff's expert witnesses can still establish that the reasonable physician would not have withdrawn life-sustaining treatment without consent under the circumstances.



5.  In other words, the clinical conditions (e.g. no dialysis for patients in PVS) under which a futility policy should be invoked are not themselves articulated in the futility policy.  So, no matter how fair the articulated process, the claim would be that it was wrongly utilized in THIS patient's situation.



To be sure, the adoption of a community-wide model policy would not make any clinician or hospital worse off.  They provide tremendous benefits in guiding better communication and mediation.  My take-away point is that there are some real limitations to the potential benefits of adopting such a policy when it comes to the small subset of intractable conflicts.

  

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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 leeway in having requests for such technology granted, even against medical advice.  Our society has been generous in this regard . . . ." 



"Criteria for stopping these sophisticated treatments when therapeutic goals can no longer be met are currently not well defined. . . .  there is no societal consensus about who should have the last word when patients or their families and physicians disagree about the appropriateness of using sophisticated medical technology in situations where such treatment clearly serves only to prolong the dying process."



Still, Abrams and colleagues note that there are some limits to this "liberal policy."  They observe that "a line is drawn . . . at more sophisticated and resource-intensive technologies such as ECMO . . . ."  But they fear that line may shift unless the medical community should starts to "formulate guidelines that delineate the appropriate use of organ-replacement therapies."

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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 in cases with critical care stays of at least 5 days reduces non-beneficial treatments while increasing perceived patient / surrogate and provider satisfaction and reducing associated costs.



But the authors found that a Proactive Ethics Intervention offered to all patients in the ICU for at least 5 days did not affect perceptions of quality, reduce non-beneficial treatments, or have an impact on cost in patients who did not survive.  



The authors observed: "An ethics intervention in the absence of an ethical conflict, or without the underlying sense of ethical disquiet that usually overtakes a medical team or family during an ethics consultation, does not seem to be effective in reducing non-beneficial treatments."

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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 2001

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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 Tan


• The Flipped Classroom Paradigm for Teaching Palliative Care Skills - Vyjeyanthi S. Periyakoil and Preetha Basaviah 


• AMA Code of Medical Ethics’ Opinions on Care at the End of Life 


• Physician Characteristics Influence Referral to End-of-Life Care - May Hua 


• Serious Illness Communications Checklist - Rachelle E. Bernacki and Susan D. Block 


• The Appropriate Use of Increasingly Sophisticated Life-Sustaining Technology - Darryl C. Abrams, Kenneth Prager, Craig D. Blinderman, Kristin M. Burkart, and Daniel Brodie 


• Legal Constraints on Pursuit of a “Good Death” - Richard Weinmeyer 


• Legislative Attempts to Improve End-of-Life Care in New York State - Beth Popp 


• Whole-Person, Whole-Community Care at the End of Life - Christina Staudt 


• Treatment of Terminally Ill Patients According to Jewish Law - Rabbi Dov Linzer


• When Medicine Is Powerless - Thomas W. Laqueur

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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 20.

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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 to sound the caution bell regarding the amount of legal protection afforded by following a "community standard of care" evidenced by nearly uniform futility policies.  On Tuesday, I will make arguments that are more encouraging and supportive to clinicians.    

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