Shooting in the ICU after Hospital Refused to Follow Advance Directive

Katherine Lavoie was battling depression, and apparently tried to commit suicide on Sunday night.  Her husband, Mark, called 911.  Katherine Lavoie ended up on life support at Wentworth-Douglass Hospital in New Hampshire.  (NECN)



But Mark soon regretted calling for help:  "now because of my selfishness in dialing 911, she is experiencing the only thing she feared more than her illness, life-support on a respirator."



Around 6:03 a.m. Tuesday, Dover Police responded to a 911 call from Wentworth-Douglass Hospital reporting shots fired inside the facility. The responding officers found a Mark & Katherine Lavoie dead in a room inside the hospital's critical care unit.



In a Facebook post, Mark indicated that his shooting was motivated by the hospital's refusal to honor Katherine's advance directive.  "Even though I brought her living will, the doc said her wishes didn’t apply because depression isn’t a non-reversible state. I however did not see that stipulation.)"



As illustrated in similar cases like Kerrie Wooltorton, the duty to follow an advance directive after a suicide attempt remains unresolved.

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Unilateral DNAR Policies & Practices

The latest issue of Medical Ethics Advisor discusses unilateral DNAR policies and practices.  



Andrew Courtwright discusses a study that shows there is no concern that a Mass General policy empowering physicians not to offer CPR is disproportionately applied to vulnerable populations.



Alana Sagin cautions that when thinking about the topic of unilateral DNR orders, we really need to look at how we present CPR to people in general.



I discuss the legal rules governing unilateral DNAR orders.

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WWII Fighter Pilot Tries to Hasten Death to Avoid Bad Death

Quentin Aanenson was a World War II fighter pilot.  He made his recollections and feelings public as one of the principal participants in Ken Burns' powerful TV documentary "The War." 



Aanenson recounted one incident which roughly illustrates why someone with a terminal illness might want aid in dying.  On August 3, 1944, on a mission over Vire, France, Aanenson's plane was hit by flak and caught on fire. He tried to bail out but couldn't.  So, Aanenson put his plane into a steep dive, trying to crash as quickly as possible.  He was only at 4000 feet at the time.  Fortunately, the change in air pressure extinguished the cockpit fire, and Aanenson managed to fly back to his base.



Given the cockpit fire, Aanenson figured that he was going to die no matter what.  But how?  Aanenson and his fellow pilots had discussed that burning to death would be a terrible way to die.  So, to avoid that bad death, Aanenson put his plane into the steep dive to achieve a quicker less painful death.

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Irish Court: Hospital Can Stop Physiological Support for Dead Woman

A woman in her mid 20s was declared dead in a Dublin hospital on December 3, when she was 15 weeks pregnant.  But despite pleas from her husband and father, clinicians refused to stop physiological support.



Clinicians said they needed legal clarification on what they were allowed to do because of the 8th Amendment to the Irish Constitution ("The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.")



Today, December 26, Ireland’s high court ruled that doctors can stop physiological support.  (Irish Times; Guardian)  (I posted an early copy of the 26-page judgment here.)  The court “is satisfied, in the circumstances of this case, that it is in the best interests of the unborn child; it should authorise at the discretion of the medical team the withdrawal of ongoing somatic support being provide in this tragic and unfortunate case.”



“To maintain and continue the present somatic support for the mother would deprive her of dignity and subject her father, her partner and her young children to unimaginable distress in a futile exercise which commenced only because of fears held by treating medical specialists of potential consequences.”



The court found as a fact there was no genuine prospect the somatic process would lead to the birth of a live baby.  "From a medical viewpoint… there is no real prospect of maintaining stability in the uterine environment, having regard to the degree of infection, the fluctuating temperatures in the body of the mother, the difficulty in maintaining a safe blood pressure and the amount of toxic medication being administered to the mother which is not licenced for pregnancy.”

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Ashutosh Maharaj - Is He Dead or Samadhi?

Indian spiritual leader Ashutosh Maharaj was declared dead on January 29, 2014.  



But his followers as well as the ashram leadership swear that he is alive, having attained “samadhi,” a high state of consciousness reserved for the holiest of men, beings so evolved they can control their heartbeat, a state indistinguishable to the unenlightened from death.  (NY Times)  



This state of transcendent bliss is a central tenet of traditional yoga in which a yogi becomes one with the universe. Upon moving all of your prana (currents of energy) up your spine and into your head, according to the seminal yoga manual Hatha Yoga Pradipika, a yogi can become "as if dead."  (The Atlantic)



On December 1, the High Court of Punjab and Haryana issued a 129-page order ordering the cremation of Maharaj’s body (now being preserved in a freezer) within 15 days.  But on December 15, the Punjab and Haryana High Court on Monday stayed the order of the single judge.  Maharaj's body will continue to remain in the deep freezer until February 9, 2015.



The dispute may not be a "pure" conflict between medicine and religion.  The Divya Jyoti Jagrati Sansthan religious order has a property estate worth an estimated $150 million.  The determination of death will likely impact the disposition. 

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When Faith Conflicts With Medical Advice

Christopher Meyers is a Professor of Philosophy and Executive Director of the Kegley Institute of Ethics at California State University, Bakersfield. He provides ethics commentary on California's Valley Public Radio.  His latest podcast concerns the intersection of religion and medicine.



"Among the hardest cases in clinical ethics consulting are those in which patients’ or families’ religious beliefs motivate medical choices contrary to best professional advice. A common example is when a family requests that medically ineffective life-sustaining treatments not be withdrawn while they hope for divine intervention."



"These cases usually can be ethically managed with education and counseling. This allows decision makers to come to grips with the medical reality, including that continued aggressive treatment will most likely only increase the patient’s suffering."



"Some cases, however, are much harder: family choices can cause patients to suffer through otherwise manageable pain, to languish for years in a permanent vegetative state, or even to die prematurely – all because their religious convictions preclude the medically appropriate response. These choices cause real harm."



Professor Meyers asks: "shouldn’t some faith-based reasons be subject to questioning . . . .  Surely we – churches, courts, ethicists – can do more to provide them with helpful standards."  



At least some of those standards may be forthcoming at the Petrie-Flom Center's 2015 annual conference: “Law, Religion, and American Health Care."

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Medical Futility: A Parable and New Policy for a New Approach

Last week, the University of Massachusetts Medical School held grand rounds  on its new medical futility policy, policy no. 2522.



The panelists include legal counsel, ethics, patient care, and the CMO.  The video and slides for "The Medical Futility: A Parable and New Policy for a New Approach" are archived here.

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Rasouli and Patient Treatment in the 21st Century (videos)

Earlier this year, the B’nai Brith Canada Trust and Estates Group held its annual continuing legal education seminar featuring the Rasouli case. 



I just noticed that good quality videos have been posted.  The three panels included the lawyers who argued the case, as well as many of the leading experts in this area discuss the issues.

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Massachusetts Latest State to Require End-of-Life Disclosures

Following California, Michigan, New York, Vermont, and other states, Massachusetts has begun mandating certain end-of-life disclosures.

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Health Law Events at January 2015 AALS Annual Meeting

   Health Law Events at
the January 2015 AALS Annual Meeting

Friday, JAN. 2 6:30 pm - 8:30 pm Lebanese Taverna 2641 Connecticut NW	Health Law Professors Reception  Drinks & heavy hors d'oeuvres Hosted by Hamline University Health Law Institute
Saturday, JAN. 3 10:30 am - 12:15 pm Marriott Park Wardman Maryland Suite A Lobby Level	Competition Policy in Health Care Section on Antitrust & Economic Regulation Co-sponsored by Section on Law, Medicine & Health Care Competition in health care is a fundamental issue to a better functioning health care system that benefits consumers. The panel will discuss some of the most exciting issues in the interface between the two areas: competition between for profits and not for profits, hospital mergers, anti-competitive state licensing and other forms of state action, reverse payments in pharmaceuticals, integration through ACOs or merger, and contractual relations between payers and providers. Panelists: ·         Thomas L. Greaney, Saint Louis University School of Law ·         Rebecca Haw, Vanderbilt University Law School ·         Kristin M. Madison, Northeastern University School of Law ·         Ann Marie Marciarille, University of Missouri-Kansas City School of Law ·         Hillary Greene, University of Connecticut School of Law (moderator)
Saturday, JAN. 3 12:30 pm - 2:30 pm Omni Shoreham Hotel Diplomat Ballroom Lobby Level	Lunch Debate: Resolved, that the Affordable Care Act Does Not Authorize Subsidies for Individuals Purchasing Health Insurance Through Federal Exchanges Speakers: ·         Jonathan Adler, Case Western University School of Law ·         Nicholas Bagley, University of Michigan School of Law
Saturday, JAN. 3 1:30 pm - 3:15 pm Marriott Park Wardman Wilson C Mezzanine Level	An Examination of Patient Dumping by Hospitals after Thirty Years of EMTALA Section on Law & Mental Disability Co-sponsored by Section on Law, Medicine & Health Care The Emergency Medical Treatment and Active Labor Act of 1986 (EMTALA) was designed to ensure equal access to emergency treatment by hospitals and to stop the practice of “patient dumping.” Patient dumping occurs when patients needing emergency care – typically uninsured, disabled, and minority individuals – are transferred, prematurely discharged, or are denied treatment altogether. Thirty years after EMTALA was passed, patient dumping is still occurring. And healthcare delivery has changed dramatically, with stunning advances in medical science and the advent of major, national movements toward evidence-based medicine care and systems-based quality improvement. Have these sweeping changes left EMTALA behind, so out of touch with current practice that it is now harming, rather than helping, equal access to emergency care? What impact will the Affordable Care Act have on EMTALA? What impact is EMTALA having on the push for community-based services, the growing use of telemedicine, medical repatriation and the number of the mentally disabled in prisons? This panel will address these questions and others while analyzing a forthcoming report of the U.S. Commission on Civil Rights on EMTALA. The panel will also share teaching materials on covering EMTALA in doctrinal courses. Panelists: ·         Martin R. Castro, Chair, U.S. Commission on Civil Rights, Washington, D.C. ·         Richard L. Elliott, Ph.D., Professor and Director of Professionalism and Medical Ethics, ·         Mercer University School of Medicine, Macon, GA ·         Katharine A. Van Tassel, University of Akron, C. Blake McDowell Law Center ·         Hernan Vera, President and Chief Executive Officer, Public Counsel, Los Angeles, CA ·         Barry Kozak, The John Marshall Law School (moderator)
Saturday, JAN. 3 3:30 pm - 5:15 pm Marriott Park Wardman Washington 5 Exhibition Level	Unbefriended Elderly: Making Medical Treatment Decisions for Patients without Surrogates Section on Law, Medicine & Health Care Joint Program with Section on Aging & Law You are an orthopedic surgeon. Tomorrow morning, you are scheduled to fix an elderly woman’s broken hip. But the woman is demented, and no family can be located. Do you proceed? Or do you seek a court-appointed guardian to give you the “go ahead”? Delaying surgery increases the risks of complications.  But proceeding means acting without authorization or informed consent.  Would your answers change if the woman has a caring nephew who is not recognized as a valid surrogate under your state's health care decision making statute? Unfortunately, clinicians and facilities across the United States have responded to these questions in inconsistent and ad hoc ways.  This is troubling, because the “unbefriended” or “unrepresented” are some of the most powerless and marginalized members of society.  They comprise 3-4% of the 1.3 million people living in nursing homes and 5% of the 500,000 per year who die in ICUs. These expert panelists will describe the scope and nature of the problem as well as its causal factors.  They will also outline both currently implemented and proposed solutions. Panelists: ·         Ellen Fox, MD - President and CEO at Integrated Ethics Consulting LLC; formerly Chief Officer, Ethics in Health Care, Department of Veterans Affairs ·         Sharona Hoffman, JD, LLM - Case Western Reserve University School of Law ·         Rebecca C. Morgan, JD - Stetson University College of Law ·         David Orentlicher, MD, JD - Indiana University Robert H. McKinney School of Law ·         Erica F. Wood, JD - Assistant Director, ABA Commission on Law and Aging There will be a section business meeting at the end of this session.
Saturday, JAN. 3 5:15 pm - 6:30 pm Marriott Park Wardman Mckinley Mezzanine Level	Health Law Works in Progress for New Law Teachers Section on Law, Medicine & Health Care Four junior health law scholars were invited through a competitive selection process.  Their papers have already been distributed.  At the meeting, each will briefly present her/his papers in a separate and concurrent roundtable setting (though two will share a single roundtable).  Then, senior scholars will provide oral comments and critiques.  Some will also provide written feedback on the manuscript.  The author of each paper will be given an opportunity to respond and ask questions of his or her own.  The goal of the workshop is to improve the work before publication.  This new program also presents an opportunity for the audience to hear cutting edge health law scholarship by recent members of the academy. Authors: ·         Zack Buck, JD - Mercer University Walter F. George School of Law:  “State Anti-Fraud Statutes, Off-Label Marketing, and the Solvable Challenge of Causation” ·         Christine S. Ho, JD, MPP - Rutgers School of Law – Newark:  “The Exception that Undermines the Rule: An Examination of the Nameless Threat of Underinclusion in Health Law" ·         David Kwok, JD, MPP, PhD - University of Houston Law Center:  “Fair Competition and False Claims in Off-Label Marketing” ·         Katherine T. Vukadin, JD - Texas Southern University Thurgood Marshall School of Law:  “Obamacare Interrupted: Obstructive Federalism and the Consumer Information Blockade” Commentators: ·         Jennifer Bard ·         Gregg Bloche ·         Robert A. Bohrer ·         Kathleen Boozang * ·         Leslie Francis ·         Abbe Gluck ·         Mark Hall ·         Nan Hunter ·         Joan Krause * ·         Kristin Madison ·         Gwen Majette ·         David Orentlicher * ·         Frank Pasquale ·         Thaddeus Pope ·         Ani Satz ·         Sidney Watson *
Sunday, JAN. 4 4:00 pm - 5:45 pm Marriott Park Wardman Maryland Suite C Lobby Level	Tort Law and a Healthier Society (Section on Torts & Compensation Systems) The section will present a program on leading issues at the intersection of tort and health law. Professor Mello will discuss medical malpractice alternatives for hospitals. Professor Reiss will discuss liability issues related to vaccine-preventable diseases. Professor Winters will discuss food safety impact litigation. The section will also honor the winner of its annual William L. Prosser Award for outstanding contribution in scholarship, teaching, and service related to tort law. Panelists: ·         Michelle Mello, Stanford Law School ·         Dorit Reiss, University of California, Hastings College of the Law ·         Diana Winters, Indiana University Robert H. McKinney School of Law ·         Andrew R. Klein, Indiana University Robert H. McKinney School of Law (moderator)
Monday, JAN. 5 10:30 am - 12:15 pm Marriott Park Wardman Virginia Suite A Lobby Level	Ebola and the Law (Section on Biolaw) The 2014 West African outbreak of the Ebola virus is the most severe epidemic attributed to this pathogen since 1976, when international health officials began keeping records on Ebola. As of August 2014, the total number of suspected cases has approached 2,000 and the number of suspected deaths has exceeded 1,000. The World Health Organization has designated the health crisis as one of international concern. The law has a strong stake in containing this outbreak and preventing future episodes of this kind.  The section invited papers addressing issues of law and policy arising from the Ebola outbreak. Issues may include (but by no means were limited to) the following: ·         Why was the international legal and public health community so slow to recognize the 2014 Ebola outbreak? Human beings are supremely attuned to threats posed by other humans (such as war or terrorism), but far less prepared for threats deemed “natural” or “environmental.” How should law accommodate and/or offset this biological predisposition? ·         There is no vaccine or cure for Ebola. Medicines for treating Ebola, carrying some hope of reducing the mortality rate, are in extremely short supply. What are the bioethical implications raised by the decision to devote the extremely limited supplies of Ebola medication — no more than a handful of doses as of August 2014 — to medical workers of non-African origin? How should the U.S. Food and Drug Administration and its foreign counterparts handle petitions to expedite the experimental use of Ebola medication?                                          Panelists: ·         Robert A. Bohrer, California Western School of Law ·         Lan Cao, Chapman University Dale E. Fowler School of Law ·         Carl H. Coleman, Seton Hall University School of Law ·         Victoria Sutton, Texas Tech University School of Law ·         James Ming Chen, Michigan State University College of Law (moderator) ·         Andrew W. Torrance, University of Kansas School of Law (commentator) ·         Katharine A. Van Tassel, University of Akron, C. Blake McDowell Law Center (commentator)

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Clinicians CRIMINALLY Charged for Not Resuscitating Patient

The UK Crown Prosecution Service has made the extremely unusual step to criminally charge three clinicians for accidentally failing to resuscitate six-year-old Jack Adcock.



The clinicians mixed up Jack with another child who was subject to a DNR order at Leicester Royal Infirmary Hospital.  Jack died February 18, 2011.



Fiona Morrison, Specialist Prosecutor with the CPS Special Crime Division, said:  

"We have carefully considered the evidence gathered by Leicestershire Police into the treatment and care of Jack Adcock . . . ."

"Having completed our review, we have concluded there is sufficient evidence and it is in the public interest for Dr Bawa-Garba, Sister Taylor and Staff Nurse Amaro to each face charges of gross negligence manslaughter. The decision to prosecute has been taken in accordance with the Code for Crown Prosecutors."

The defendants  will appear at Leicester Magistrates' Court on Friday, January 23, 2015.

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Minnesota Assisted Suicide Trial for Final Exit Network

The Minnesota trial of Final Exit Network and two of its Exit Guides has been scheduled for May 4, 2015.



On December 8, Dakota County District Judge Christian Wilton set aside February 26-27 for hearings on all pretrial motions. One of the major issues will be how to instruct the jury on the meaning of "assisting" in a "suicide."  



FEN and four of its volunteers were indicted in May 2012 on charges stemming from the 2007 death of Doreen Dunn, 57, in Apple Valley. One of the defendants has died, and all charges have been dismissed against another.  



The trial was postponed for more than two years while FEN battled successfully in Minnesota's appellate courts to narrow the scope of the charges. FEN and its Exit Guides were initially charged with "advising," "encouraging," or "assisting" in a suicide.  FEN's appeals have established that the State may try the defendants only on proof that they actually "assisted" in the suicide.

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