Rationing - The Case of NICU and the Place of Cost-effectiveness Thresholds

Julian Savulescu will be delivering the next public lecture at the Australian Centre for Health Law Research:  "Rationing - The Case of NICU and the Place of Cost-effectiveness Thresholds" on May 18.



When health professionals are considering whether or not to provide life-sustaining treatment to a critically ill newborn infant, they often consider the best interests of the child. Frequently, they will consult with the infant’s parents, and take into account parents’ interests and their views about treatment for the child. However, there is one important ethical factor that health professionals do not necessarily consider, or (at least explicitly) acknowledge. Resource limitations and the effect of treatment of others are of fundamental importance for end of life decisions, even in well-resourced countries like Australia.



In this presentation Professor Savulescu will first set out the principles that should underlie resource allocation in a public health system. He reviews arguments for and against rationing. In the second half of the presentation Professor Savulescu will use existing cost effectiveness thresholds to shed light on the question of medical futility in intensive care. He draws on the examples of short-bowel syndrome, spinal muscular atrophy, neonatal ECMO and trisomy 18. 

• How low a probability of survival is too low


• How long a course of intensive care is too long? 


• When are doctors justified in withholding treatment because of future quality of life? 

Rationing is inevitable in intensive care. However, for it to be ethical it must be transparent, consistent and rational.





Professor Julian Savulescu is the Uehiro Chair in Practical Ethics, Director of the Oxford Uehiro Centre for Practical Ethics at the Faculty of Philosophy, University of Oxford and Director of the Institute for Science and Ethics, Oxford Martin School at the University of Oxford. He is also the Director of the Oxford Centre for Neuroethics, one of three strategic centres in biomedical ethics in the UK funded by the Wellcome Trust, and was recently awarded their flagship Senior Investigator Award. He is the Sir Louis Matheson Distinguished Professor at Monash University and an Honorary Professorial Fellow at the Florey Neuroscience Institute. He is also an Adjunct Professor of the Australian Centre for Health Law Research.



Professor Savulescu holds degrees in medicine, neuroscience and bioethics, and is a leader in medical and practical ethics. He is editor of the Journal of Medical Ethics and founding editor of Journal of Practical Ethics, an open access journal in Practical Ethics. He has authored over 250 publications and has given over 120 invited international presentations.

Read More

Marsala v. Yale New Haven Hospital

The medical futility lawsuit for damages against Yale New Haven Hospital was scheduled for trial next month.  But the case is now stayed while the plaintiffs take up an appeal.



The appeal concerns whether plaintiffs can pursue their IIED (intentional infliction of emotional distress) claim.  In other cases across the country, IIED is typically the strongest and most successful claim asserted by the families of patients whose life-sustaining treatment was unilaterally withheld or withdrawn.

Read More

Oregon's "Death with Dignity" Law: Implementation and Experience (webinar)

Sue Dessayer Porter, MSB '10 will present a webinar for Union - Mt. Sinai, "Oregon's 'Death with Dignity' Law: Implementation and Experience" on Wednesday, May 13 from noon-1 pm ET. 



Porter serves on the Advisory Board Leadership Council for Compassion & Choices. She has stewarded terminally ill patients through Oregon’s Death with Dignity law as a longtime volunteer and appeared in “How to Die in Oregon,” winner of the 2011 Sundance Film Festival U.S. Documentary Grand Jury Award. 

Read More

NHS Resuscitation Guidelines - Over-Inclusive?

Apparently, pursuant to new NHS guidance, "in some parts of England, practice nurses have been instructed to cold call patients and fill out an advance care plan for them over the phone."  



This seems similar how some US jurisdictions deal with POLST. We criticized this over-inclusive and potentially less-than-thorough approach in last year's POLST Legislative Guide.



One health policy analyst commenting on the NHS guidelines, explained "it's a very clunky thing to do."

Read More

South Carolina Addressing Decision Making for Unbefriended

This session, several states are addressing gaps in how medical treatment decisions are made for patients without surrogates (the "unbefriended").  South Carolina is proposing to add two additional categories of decision makers at the end of its default surrogate list (for a total of 11 categories) .

(1) A close friend of the patient who is an adult and reasonably is believed by the health care professional to have a close personal relationship with the patient;

(2) A clinical social worker . . . or an individual who is a graduate of a court-approved guardianship program.

Apparently following the long-standing rule in Florida, the bill requires that a person serving as a decision maker pursuant to the final criteria must be "selected by the provider's bioethics committee and must not be employed by the provider."

"If the provider does not have a bioethics committee, the provider's governing body shall designate a committee of the governing body comprised of at least three members to select the person who shall serve as the decision maker . . . . The person serving as the decision maker must be notified that, upon request, the provider shall make available a second physician, not involved in the patient's care, to assist the person in evaluating treatment options. A decision to withhold or withdraw life-prolonging procedures must be reviewed by the provider's bioethics committee or the committee designated by the provider's governing body pursuant to this subsection. Documentation of efforts to locate a decision maker [in a higher default category] must be recorded in the patient's medical record."

Read More

Over-treatment (video)

Read More

Norman Cantor's Plan to Avoid the Ravages of Extreme Dementia

Law professor Norman Cantor has a superb post over at Bill of Health:  "My Plan to Avoid the Ravages of Extreme Dementia."  He defends VSED over some other exit options.

Read More

Future of End-of-Life Care (NPR)

On Friday, Minnesota Public Radio News' Kerri Miller moderated an hour-long discussion on the future of end-of-life care with three experts:

• Susan Wolf: McKnight presidential professor of law, medicine and public policy at the University of Minnesota


• Dr. Glen Varns: Palliative medicine physician at Allina Health


• Dr. Jacob J. Strand: Director of Symptom Management, Pain and Quality of Life Clinic at Mayo

Read More

The Unbefriended - NYC HHC Annual John Corser Ethics Conference

The New York City Health and Hospitals Corporation is the largest municipal  health care system in the United States.  This year, its John Corser Ethics Conference is tackling one of the biggest, yet perennially neglected, topics in clinical bioethics: medical decision making for patients without surrogates.



The term "unbefriended" describes those persons--regardless of age--who reach the end of life with neither decision-making capacity nor surrogates.  All concerned agree these patients need special compassion and protection. Yet it can be unclear at the end of life which treatments are in the patients' best interest and which are an undesirable burden.



Compelling case presentations and audience interaction will define and clarify clinical, ethical, and legal approaches to the New York Family Health Care Decision Act.



At the conclusion of the seminar, attendees will be able to:

• Identify the scope of the national response to the Unbefriended client


• Describe at least 2 issues which are relevant to the national discussion of the Unbefriended client.


• Identify issues considered when drafting the FHCDA and how they determined the outcome pertaining to the unbefriended.


• Identify clinical and ethical issues confronted when working with the Unbefriended client.


• Describe clinical and ethical impasses created by the FHCDA law pertaining to the Unbefriended cllient.


• Identify potential solutions to ethical/legal issues that confront clinicians when working with their Unbefriended clients.

This program is free to all NYC HHC employees.  A light breakfast and lunch will be served.  Continuing Education Credits have been applied for.  Space is limited.



8:00-8:30               

Breakfast and Registration



8:30-8:45                     

Welcome and Opening Remarks

Ross Wilson, MD HHC Senior Vice President, Quality and Corporate Chief Medical Office



8:45-9:00 

Nature of Conference and Opening Remarks

Susan Sanelli-Russo, MD, Chairperson of the HHC Ethics Council, Director of Neurology Queens Hospital Center.



9:00 

Conference Algorithm

Nancy L. Dubler, LLB, Ethics Consultant, New York City Health and Hospitals Association



9:15 

Lecture: Raising Legal Consciousness about Unbefriended Persons

Erica Wood, JD, Assistant Director, American Bar Association Commission on Law and Aging



9:30-10:30 

Presentation and Interactive Discussion of Case: PEG Placement for Nursing Home Resident

Audience Response Vote 1

Panel Discussion: Experts from the  facility and invited faculty

Audience Response Vote 2

Audience discussion



10:45 

Presentation and Interactive Discussion of Case: DNR Order for a Hospital Patient Admitted from Nursing Home

Audience Response Vote 1

Panel Discussion: Experts from the facility and invited faculty

Audience Response Vote 2

Audience discussion



11:45 

Lecture: The Evolution of NYS Laws on Health Care Decisions for Unbefriended Patients

Robert Swidler, JD, Vice President Legal Services, St. Peter’s Health Partners, Governor’s appointee to the NYS Task Force on Life and the Law 7chevy



12:00

Lecture: Ethical Complexity of Protecting Unbefriended Patients under the FHCDA

Tia P. Powelll, MD, Director, Montefiore Einstein Center

for Bioethics; Director, Einstein Cardozo Master of Science in Bioethics; Professor of Clinical Epidemiology,

Division of Bioethics & of Clinical Psychiatry, AECOM



12:15 

Lecture: National Efforts to Protect Unbefriended  Patients

Erica Wood, JD



12:30 

Working Lunch Video:   “Food for Thought”  Modeling  Mediation Pertinent to the Unbefriended



1:15 

Presentation and Interactive Discussion of Case: Refusal of Treatment by Hospital Patient  with a Psychiatric Diagnosis

Audience Response Vote 1

Panel Discussion: Experts from the  facility and invited faculty

Audience Response Vote 2

Audience discussion



2:15 

Panel Discussion of Day’s Activities/Audience Discussion

Erica Wood, JD, Robert Swidler, JD, Tia Powell, MD



2:45 

Conclusion and Attendee Evaluation

Read More

International Association of Bioethics, 13th World Congress Edinburgh

The 13th World Congress of Bioethics will be in Edinburgh from 14 - 17 June, 2016.  

Read More

Law, Religion, and Health in America

I am looking forward to participating in this conference in a few weeks at Harvard.

2015 Annual Conference

Law, Religion, and Health in America



May 8 - 9, 2015





Conference Description

Religion and medicine have historically gone hand in hand, but increasingly have come into conflict in the U.S. as health care has become both more secular and more heavily regulated.  Law has a dual role here, simultaneously generating conflict between religion and health care, for example through new coverage mandates or legally permissible medical interventions that violate religious norms, while also acting as a tool for religious accommodation and protection of conscience.  

This conference will: (1) identify the various ways in which law intersects with religion and health care in the United States; (2) understand the role of law in creating or mediating conflict between religion and health care; and (3) explore potential legal solutions to allow religion and health care to simultaneously flourish in a culturally diverse nation. 

Agenda

Note: All keynote, plenary, and panel sessions will include time for Q & A.

Thursday, May 7: Pre-conference session: After Hobby Lobby: What Is Caesar's What Is God's?

As prelude to “Law, Religion, and Health in America,” please join us for a pre-conference session examining the role of religion in the American public sphere. Our expert panel will discuss the nature of conscience and conscientious objection, religious freedom, and religious accommodation from philosophical, theological, historical, legal, and political perspectives.  

4:00 - 6:00pm: Panel Discussion

• 
  E. J. Dionne, Jr., Columnist, The Washington Post; Senior Fellow, The Brookings Institution
  
  


• 
  Diane L. Moore, Senior Lecturer on Religious Studies and Education and Senior Fellow at the Center for the Study of World Religions, Harvard Divinity School
  
  


• 
  Charles Fried, Beneficial Professor of Law, Harvard Law School
  
  


• 
  Frank Wolf, Representative, Virginia’s 10th Congressional District, U.S. House of Representatives, 1981-2015 (retired)
  
  


• 
  Moderator: Daniel Carpenter, Freed Professor of Government, Harvard University and Director, Center for American Political Studies at Harvard University 
  
  


• 
  Moderator: I. Glenn Cohen, Professor of Law, Harvard Law School and Faculty Director, Petrie-Flom Center
  
  

5:20 - 5:30pm: Remarks from Dean Minow

• Martha Minow, Morgan and Helen Chu Dean and Professor of Law, Harvard Law School

5:30 - 6:00pm: Audience Q & A

6:00 - 7:00pm: Reception

This event is free and open to the public, but seating is limited. Register online!

Co-sponsored by the Petrie-Flom Center and the Ambassador John L. Loeb, Jr. Initiative on Religious Freedom and Its Implications at the Center for American Political Studies at Harvard University.

Friday, May 8

8:00 - 8:30am: Registration

A continental breakfast will be provided.

8:30 - 8:35am: Welcome

• 
  I. Glenn Cohen, Professor, Harvard Law School and Faculty Director, Petrie-Flom Center
  
  


• 
  Holly Fernandez Lynch, Executive Director, Petrie-Flom Center
  
  

8:35 - 9:20am: Plenary Address

• 
  Douglas Laycock, University of Virginia School of Law - Religious Liberty, Health Care, and the Culture Wars
  
  

​9:20 - 10:25am: Panel 1, Opening the Conversation: Testing the Scope of Legal Protections for Religion in the Health Care Context

• 
  R. Alta Charo, University of Wisconisin Law School - Creating Life as Protected Expressive Conduct
  
  


• 
  Leslie C. Griffin, University of Nevada, Las Vegas William S. Boyd School of Law - What Would American Health Care Look Like if it Respected the Religion Clauses? How Would the Religion Clauses be Interpreted If They Valued American Health Care?
  
  


• 
  Samuel J. Levine, Touro College Jacob D. Fuchsberg Law Center - A Critique of Hobby Lobby and the Supreme Court’s Hands-Off Approach to Religion
  
  


• 
  Moderator: I. Glenn Cohen, Professor, Harvard Law School and Faculty Director, Petrie-Flom Center
  
  

10:25 - 10:40am: Break

10:40 - 11:45am: Panel 2, Law, Religion, and Health Care Institutions

• 
  Ryan D. Meade, Loyola University Chicago School of Law - Can a Hospital Have a Conscience If It Doesn’t Have an Intellect and Will?
  
  


• 
  Elizabeth Sepper, Washington University School of Law - Contracting Religion: The Role of Private Law in Constructing Religious Identity and Enforcing Individual Compliance in Health Care Institutions
  
  


• 
  David M. Craig, Indiana University-Purdue University Indianapolis - Mission Integrity Matters: A Consistent Approach on Catholic Health Care Values and Public Mandates
  
  


• 
  Moderator: Christine Mitchell, Executive Director, Center for Bioethics, Harvard Medical School
  
  

​11:45am - 12:30pm: Lunch

Lunch will be provided.

12:30 - 1:15pm: Panel 3, Professional Responsibilities, Religion, and Health Care

• 
  Claudia E. Haupt, Columbia Law School - Religious Outliers: Professional Knowledge Communities, Individual Conscience Claims, and the Availability of Professional Services to the Public
  
  


• 
  Nadia N. Sawicki, Loyola University Chicago School of Law - Informed Consent and Disclosure of Providers’ Religious Convictions
  
  


• 
  Moderator: Holly Fernandez Lynch, Executive Director, Petrie-Flom Center
  
  

​1:15 - 2:35pm: Panel 4, The Impact of Religious Objections on the Health and Health Care of Others

• 
  Amy Sepinwall, University of Pennsylvania - Conscience and Complicity: Assessing Pleas for Religious Exemption inHobby Lobby's Wake
  
  


• 
  Nelson Tebbe, Brooklyn Law School, and Micah Schwartzman, University of Virginia School of Law - Religion Exemptions and Legal Baselines
  
  


• 
  Mary Anne Case, University of Chicago Law School - Why “Live-And-Let-Live” Is Not a Viable Solution to the Difficult Problems of Religious Accommodation in the Age of Sexual Civil Rights
  
  


• 
  Robin Fretwell Wilson, University of Illinois College of Law - Religious Conscience and Access: Choke Points, Gateways, and Bounded Measures
  
  


• 
  Moderator: Richard H. Fallon, Jr., Harvard Law School
  
  

​2:35 - 2:45pm: Break

2:45 - 3:50pm: Panel 5, A Case Study – Religious Beliefs and the Health of the LGBT Community

• 
  Craig Konnoth, University of Pennsylvania Law School - Reclaiming Biopolitics: Religion and Psychiatry in the Sexual Orientation Change Therapy Cases
  
  


• 
  Susan Stabile, University of St. Thomas School of Law - Religious Convictions About Homosexuality and the Training of Counseling Professionals: How Should We Treat Opposition to Counseling Homosexuals on Religious Grounds?
  
  


• 
  Shawn Crincoli, Touro College Jacob D. Fuchsberg Law Center - Transgender Health Care & Religious Exemptions in Post-Hobby Lobby America
  
  


• 
  Moderator: Noa Ben-Asher, Harvard Law School and Pace Law School
  
  

​3:50 - 5:30pm: Panel 6, Accounting for and Accommodating Patients’ Religious Beliefs

• 
  Thaddeus Pope, Hamline University School of Law - Brain Death Rejected: Expanding Clinicians' Legal Duties to Accommodate Religious Objections and Continue Physiological Support
  
  


• 
  Teneille R.  Brown, S.J. Quinney College of Law, University of Utah - Accommodating Miracles
  
  


• 
  Jonathan Will, Mississippi College School of Law - Religion as a Controlling Interference that Prevents Autonomous Choice in Medical Decision Making by Minors Attempting to Utilize the Common Law Mature Minor Doctrine
  
  


• 
  Matthew J.B. Lawrence, Petrie-Flom Center, Harvard Law School - Paid Exercise: Hospital Chaplains and the Hobby Lobby Problem
  
  


• 
  Stacey A. Tovino, University of Nevada, Las Vegas William S. Boyd School of Law - The Relationship Between Health Care and Religion in the HIPAA Privacy Rule
  
  


• 
  Moderator: Robert D. Truog, Professor, Harvard Medical School and Director, Center for Bioethics, Harvard Medical School
  
  

​Saturday, May 9

8:30 - 9:00am: Registration

A contintental breakfast will be provided.

9:00 - 9:05am: Welcome

• 
  I. Glenn Cohen, Faculty Director, Petrie-Flom Center
  
  


• 
  Holly Fernandez Lynch, Executive Director, Petrie-Flom Center​​
  
  

9:05 - 10:10am: Panel 7, Religious Reasons in the Context of Reproductive Health Care

• 
  B. Jessie Hill, Case Western Reserve University School of Law - Regulating Reasons: Governmental Regulation of Private Deliberation and Religious Reasons in Reproductive Decision-Making and Health Care Decisions for Minors
  
  


• 
  I. Glenn Cohen, Faculty Director, Petrie-Flom Center - Religion, Rape, Incest, and Abortion: Should the State Evaluate the Reasons for Abortion? 
  
  


• 
  Dov Fox, University of San Diego School of Law - When Regulating Reproduction Establishes Religion
  
  


• 
  Moderator: Mindy Jane Roseman, Academic Director, Human Rights Program, Harvard Law School
  
  

​10:10 - 10:55am: Panel 8, Law, Religion, and Health Insurance 

• 
  Holly Fernandez Lynch, Executive Director, Petrie-Flom Center, and Gregory Curfman, Harvard Medical School - Hobby Lobby, Religious Employers, and Moving Away from Employer-Sponsored Health Care 
  
  


• 
  Rachel E. Sachs, Petrie-Flom Center, Harvard Law School - Religious Exemptions to the Individual Mandate: Health Care Sharing Ministries and the Purposes of the Affordable Care Act
  
  


• 
  Moderator: Marc A. Rodwin, Suffolk University Law School
  
  

​10:55 - 11:10am: Break

11:10am - 12:40pm: Plenary Session, The Contraceptives Coverage Mandate Litigation

• 
  Adèle Keim, The Becket Fund for Religious Liberty
  
  


• 
  Gregory Lipper, Americans United for Separation of Church and State  
  
  

12:40 - 1:30pm, Lunch

1:30 - 2:50pm, Panel 9, When Religion Intersects with Mental, Public, and Environmental Health

• 
  Abbas Rattani, Meharry Medical College School of Medicine - Religious Delusion, Decision-Making Capacity, and Culpability: Understanding Subjective Mental Illness Diagnoses in the Context of the Insanity Defense and Religious Freedom
  
  


• 
  Michele Goodwin, University of California, Irvine School of Law - Race, Religion, and AIDS
  
  


• 
  Aileen Maria Marty, Florida International University College of Medicine, Elena Maria Marty-Nelson, Nova Southeastern University Shepard Broad Law Center, and Eloisa C. Rodriguez-Dod, Florida International University College of Law - The Intersection of Law, Religion, and Infectious Disease on the Handling and Disposition of Human Remains
  
  


• 
  Jay D. Wexler, Boston University School of Law - When Religion Pollutes: How Should the Law Respond to Religious Beliefs and Practices That Harm the Environment and Risk the Public’s Health?
  
  


• 
  Moderator: Ahmed Ragab, Harvard Divinity School
  
  

​2:50 - 3:00pm: Closing Remarks

• 
  I. Glenn Cohen, Professor, Harvard Law School and Faculty Director, Petrie-Flom Center
  
  


• 
  Holly Fernandez Lynch, Executive Director, Petrie-Flom Center​​
  
  

How to Register

The conference is free and open to the public, but space is limited and registration is required. REGISTER ONLINE!

Read More

Baby F - Oklahoma Supreme Court Requires Clear & Convincing Evidence to Stop Life Support

This week, the Oklahoma Supreme Court issued its opinion in the Baby F case. 



The court held that for children in DHS custody, Oklahoma courts may authorize the withdrawal of life-sustaining

medical treatment or the denial CPR only after determining by clear and convincing evidence that it is in the best interest of the child to do so.



Clear and convincing evidence requires roughly 80% certainty instead of the typical preponderance/probability (>50%) standard in civil law.



Facts of the Case



The 3-month-old baby boy was one of several siblings taken into state custody in 2013, after state officials alleged the mother appeared to be under the influence of substances and the family could not care for the children. The baby had been diagnosed with several anomalies and genetic issues.



The baby's condition continued to deteriorate. A pediatric doctor at The Children's Center Pediatric Rehabilitation Hospital described the baby's prognosis as "grim," and stated that it was the consensus among staff members that care should shift from "aggressive management to palliative so as not to prolong unnecessary suffering and discomfort."



Lower Court Proceedings



The state went to court to seek a do not resuscitate order in December 2014. Oklahoma County District Judge Lisa Tipping Davis granted the state's request over an objection from the baby's attorney, but delayed implementation of her ruling to give the attorney a chance to appeal.



After the baby's condition deteriorated even further, the state went back to court. A proceeding was held in which custody of the baby was returned to his mother and father so they could consent to the do not resuscitate order.  The baby died the next day.



Supreme Court



While the baby died, the Supreme Court proceeded with the case to provide guidance to the lower courts.  



It held that a judge "shall not authorize the withdrawal of life-sustaining medical treatment or the denial of the administration of cardiopulmonary resuscitation on behalf of a child in DHS custody without determining by clear and convincing evidence that doing so is in the best interest of the child."

Read More

The Diabolical System of Imposing Death

This Catholic conference in Washington state, next month, sure has a provocative title. 



Sessions include:

• The Culture of Death and the Silence of the Church"


• Deception of “Brain Death” Imposes True Death 


• How the Case of Terri Schiavo Affects us All 

Read More

Atul Gawande in Minnesota

Speaking of Being Mortal: A life-changing conversation with Dr. Atul Gawande

Friday, September 18, 2015
6:30 to 8 p.m. at the St. Paul RiverCentre Ballroom

MNHPC is pleased to present “Speaking of Being Mortal,” a life-changing conversation with best-selling author Dr. Atul Gawande, moderated by Minnesota Public Radio’s Cathy Wurzer.

Registration begins June 15, 2015, check back then for more information.

Read More

Brain Death & Medical Futility - Empowering Families in the ICU

Patrik Hutzel runs IntensiveCareHotline.com, where they improve the lives of families of critically ill patients in intensive care, so that you can have peace of mind, real power, real control and so that you can influence decision making, even if you’re not a doctor or a nurse in intensive care.

I talked with Patrik on a recent episode of the IntensiveCareHotline.com podcast.  Listen to the interview here.  (I also did another podcast back in 2014.)

In the interview, Patrik and I explore and discuss recent controversial and highly publicized cases in Intensive Care related to brain death and perceived end of life situations.

• Two recent cases of two brain dead Patients in California, where one family is trying to rescind the death certificate for their 15 year old daughter Jahi McMath who is currently on a ventilator and life support in New Jersey


• What it would mean for the future of Intensive Care and the diagnosis of brain death if death certificates would be annulled


• Why a Family’s value judgement is important when dealing with brain death


• Why some states in the USA have a law where Families who object out of religious believes to brain death can dispute the diagnosis


• Why Jahi McMath may be legally alive in New Jersey and maybe legally dead in California and the controversy and discussions around it


• Why some Intensive Care Units give Families 24-48 hours time to come to terms with the death of their loved one and others aren’t giving Families enough time to grieve


• Another highly controversial case where a young lady (Lisa Avila) has been diagnosed with brain death after she had given birth to her 8th child and she got misdiagnosed with an undiagnosed ectopic (tubal) pregnancy that caused her to go into cardiac arrest, where she ended up brain dead


• Massive trust issues between families and Intensive Care teams cause disputes around the diagnoses of brain death


• Most Intensive Care Units have a policy to not treat brain dead people and therefore withdraw life support.  Listen to what Professor Pope has to say about the legal issues surrounding brain death


• Massive legal and ethical challenges when a family disputes the brain death of a loved one


• Other futility cases that have made headlines such as the Hassan Rasouli case in Canada, where the Intensive Care team wanted to withdraw treatment without family consent.  The family objected the Intensive Care team’s decision and went to court where the supreme court of Canada protected Families rights when it comes to perceived futility cases in perceived end of life situations.  The Rassouli family successfully challenged the “perceived power” and “perceived authority” of the Intensive Care team 


• Why transparency in end of life or perceived end of life situations is critical and how families in Intensive Care can get transparency and full disclosure simply by positioning themselves correctly by asking the right questions 


• How families in Intensive Care can get what they want in a real end of life situation.  Professor Pope is referring to the hospital dispute process if Families need help and advice in medical futility cases 


• Why families in Intensive Care should be asking the Intensive Care team for their end of life policies if they are in doubt

Read More

Current Trends in End-of-Life Medical Treatment (MP3)

This week, I am visiting Southern Illinois University as the John and Marsha Ryan Bioethicist in Residence.  I did two talks in Carbondale and am doing another in Springfield.  



I also talked to the local NPR station, about current trends in bio-ethics and end-of-life medical treatment.  A recording is here.

Read More

Patients without Surrogates - Twitter Chat

Check this out on Monday night.  Decision making for the unbefriended is the biggest bioethics issue that too few are talking about.

Read More

National Healthcare Decisions Day

Tomorrow is National Healthcare Decisions Day.  Do you have an advance directive?  Is is up-to-date with your agent and alternate agent?  If not, get it done today.

Read More

VSED Podcast on TWIHL

Check out my podcast on VSED as well as others in the new series THE WEEK IN HEALTH LAW.  



Each week, health law professors Frank Pasquale and Nicolas Terry bring in a guest to discuss the most pressing issues in Health Law & Policy.

Read More

Limits of Default Surrogate Laws, Importance of Advance Directives

For patients who lose capacity and have no legally appointed surrogate decision maker, most states have laws that specify a hierarchy of persons who may serve as surrogate decision makers by default. But these state "default surrogate consent statutes" vary in their recognition of important relationships beyond the nuclear family, such as friends, more distant relatives, and intimate relationships outside marriage.



A research study just published in JAMA shows substantial number of patients (>7% of the >100,000 patient sample) had a next-of-kin relationship outside the nuclear family. 

The authors recommend that states consider adopting uniform default consent statutes broad and inclusive to reflect the evolving social ties in the United States.  In the meantime, it is important for individuals to complete advance directives to opt out of the default surrogate rules and select the people whom they trust and who know them best.

Read More

Is International Consensus on Brain Death Achievable?

Commenting on a new study in NEUROLOGY that shows a wide diversity of brain death practice, James Bernat asks "is international consensus on brain death achievable?"



Bernat observes: "Worldwide concurrence on death determination criteria can enhance public confidence in physicians’ ability to determine death by eliminating the possibility that patients declared dead in one jurisdiction would be considered alive in another. International harmonization also is a constructive step toward improving global systems of organ transplantation."



But, Bernat notes, "formidable medical and societal barriers must be overcome before such consensus becomes possible." 



In addition to other sources of variation results, Bernat notes "disagreement over the conceptual question of whether brain dead patients are truly dead or only “legally dead.” Surveys continue to show both widespread misunderstanding of the brain death concept and its rejection as equivalent to biological death by some health care professionals."

Read More

Neither Doctors nor Laypersons Understand Brain Death

Here is a good presentation with some disturbing data from the Society of Critical Care Medicine (SCCM).

Read More

Toronto Police Criminally Charge Nurse for Stopping Life Support without Consent

Deanna Leblanc

Toronto police have arrested Joanna Flynn (50), a former nurse at Georgian Bay General Hospital for allegedly cutting off a patient’s life support without authorization.  



She is charged with manslaughter and with criminal negligence causing death. The victim, Deanna Leblanc (39), died at the hospital on March 2, 2014.  



The hospital CEO observed "A criminal charge involving someone at our hospital is a highly distressing occurrence and will create a good deal of anxiety for our community." (Toronto Star)  Mark Handelman said he has never seen a Canadian health care practitioner criminally charged for ending life support.

Read More

Lawsuit for Unilateral Withdrawal - King v. Summa Health

A few days ago, the family of Minnie King filed a lawsuit against Summa Health System in Akron, Ohio.  They allege that clinicians at Akron City Hospital "withdrew life-sustaining treatment . . . without consent." 



The claims are for (1) wrongful death and (2) conscious disregard for the patient's rights and safety.  Importantly, the second claim supports punitive damages.  

Read More

Texas Futility Law - House Committee Hearing Today

Rep. Harless

I recently recapped the several bills introduced that were this session to amend the dispute resolution provisions in the Texas Advance Directives Act.  



This morning at 10:30, the House State Affairs Committee will hold a hearing on H.B. 2351 (Harless) which requires hospitals to adopt policies on conflicts of interest and discrimination for their TADA review committees. A recording of the hearing should be posted here later.

Read More

Has the Pendulum Swung too Far in Favor of Patient Autonomy?

"Institutional Culture and Policies’ Influence on Do Not Resuscitate Decision-Making at the End of Life," online first in JAMA Internal Medicine looks at the difference between (a) hospitals which have policies or a culture that prioritizes patient autonomy with regard to DNAR orders and (b) hospitals where doctors’ recommendations on what might be in patients’ best interests medically hold more sway.



Elizabeth Dzeng and colleagues argue that UK hospitals currently differ from the more consumer-oriented approach of their US counterparts and doctors' recommendations still hold sway over DNAR decisions. However, they are moving more towards the US model as the recent case of Janet Tracey at Addenbrookes hospital in Cambridge shows. Tracey’s family successfully sued the hospital over a DNR order that was implemented without the family's permission.



The authors interviewed 58 doctors and trainees at three academic medical centers in the US and one in the UK. Trainee doctors at hospitals with emphasized patient autonomy often felt compelled to offer the choice of resuscitation in a neutral way in all situations regardless of whether they believed it would be clinically appropriate. 



In contrast, trainees at hospitals where policies and culture prioritized best interest-focused approaches felt more comfortable recommending against resuscitation in situations where survival was unlikely. They felt confident, for instance, to discourage the ineffective use of CPR and found it ethically suspect to offer CPR in futile situations such as for frail elderly patients with incurable metastatic cancer where doing CPR may result in broken ribs and electric shocks as well as depriving them of a dignified death.



Unlike trainees, experienced doctors at all hospitals were willing to make recommendations against resuscitation if they believed it would be futile. 



The authors conclude: "Institutional cultures and policies might influence how physician trainees develop their professional attitudes toward autonomy and their willingness to make recommendations regarding the decision to implement a DNR order. A singular focus on autonomy might inadvertently undermine patient care by depriving patients and surrogates of the professional guidance needed to make critical end of life decisions."  (HT: University of Cambridge)

Read More

Texas Advance Directives Act: Must a Death Panel Be a Star Chamber?

I just submitted an invited commentary: "Texas Advance Directives Act: Must a Death Panel Be a Star Chamber?"  



This is a shorter version of the more exhaustive forthcoming "Texas Advance Directives Act: Almost a Model Dispute Resolution Mechanism for Intractable Medical Futility Disputes."

Read More

Non-beneficial Treatment Policy University Hospitals - Case Medical Center (video)

University Hospitals Case Medical Center recently held a grand rounds to explain its new non-beneficial treatment policy.  



Interestingly, the process is more rigorous when clinicians want to withdraw existing treatment than when they want to withhold treatment as non-beneficial.

Read More