Delaware Governor Signs POLST

Congratulations Delaware on enacting DMOST legislation.



I am proud to know many of the people here at the signing.  Among others, right behind the Governor are John Goodill (the head of palliative care and the ethics committee at Christiana Care, Delaware's largest hospital) and Susan Del Pesco (a former judge and Director, Division of Long Term Care Residents Protection).

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Saying No - Exploring the Ethical Dimensions of Refusals in Healthcare

On September 18, 2015, the Clinical Ethics Network of North Carolina will present "Saying No Exploring the Ethical Dimensions of Refusals in Healthcare."



Refusals take place across the spectrum of healthcare 

• The clinician who refuses to offer treatment believed to be futile, non-beneficial or inappropriate


• The patient who spurns a proposed discharge plan


• The family that declines to discuss changes in goals of care


• The hospital system that decides not to carry certain drugs on its formulary


• The healthcare system that refrains from providing coverage to certain regions or categories of patients. 

These are some of the many dimensions of “no” that will be explored in this highly interactive program combining case studies, lecture and participant engagement in both plenary and small breakout sessions. Brochure and registration will be available mid summer.

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Hospital at 4am [EOL in Art 21]

Douglas Manry "The Hospital at 4 am" as a realistic painting of a hospital interior.  But as he thought of what actually goes on within hospital walls and how many lives are affected there each day, his hand essentially went on "automatic pilot" mode, and this was the result.

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van Gogh's Ward of Arles Hospital [EOL in Art 20]

In 1889, Vincent van Gogh painted "Ward of Arles Hospital" where he spent some time the year before he died.  



Debra Mancoff comments, "the exaggerated length of the corridor and the nervous contours that delineate the figures of the patients express the emotional weight of his isolation and confinement."

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Euthanasia 2016 in Amsterdam

In cooperation with the World Federation of Right to Die Societies, NVVE, the Dutch Right to Die Society, will be hosting the biennial international conference, Euthanasia 2016 in Amsterdam (May 11-14, 2016).



In a world with a growing demand for legalized euthanasia and (physician) assisted dying, this conference intends to inform and inspire a wide range of professionals involved in end-of-life choices. 



This conference will offer physicians, scientists, lawyers, politicians, policymakers, campaigners and activists an opportunity to deepen, broaden and share their knowledge and experience.

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Sharing the Experience - Honoring Choices Minnesota

Plan now to attend the 6th Annual Honoring Choices Minnesota Conference - on Thursday, July 16, 2015, from 8:15 to 4:30, at the Ramada Plaza Hotel.

Featuring Keynote Speakers

• Kris Maser, JD - "Planning for a Good Life: An Attorney's Personal & Professional Journeyinto Advance Care Planning"


• Ruth Bachman - "A Narrow Spot in the Hourglass: Lessons in Integrity, Courage & Grace"

Concurrent Sessions 

• Where Are They Now? Allina, Fairview, and Park Nicollet/HealthPartners


• speak on their ACP growth, change, and plans for the future


• Spiritual Perspectives: Breaking New Ground


• Voices of Advance Care Planning: A Multicultural Tool


• ACP Outstate: Developing ACP Programs beyond the Twin Cities

Additional Sessions and Topics include

• ACP Growth in Minnesota and Nationally


• Taking a Stand: University students share their work with ACP


• Reducing Health Care Disparities: a new Honoring Choices video resource


• ACP Outcomes: 7 Years Down the Road

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Scary Hospital Room [EOL in Art 19]

Even video game art can prompt reflection.

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ICU StoryWeb - Sharing Stories about ICU Treatment Decisions

ICU StoryWeb is a new interactive, web-based tool designed to help people share their stories about making decisions related to life-sustaining treatment for family members and friends in the ICU. 



ICU StoryWeb involves three components: 

1. Users can listen to other people's stories. Listening to stories helps normalize feelings. 


2. Users can share their own stories. A downloadable storytelling kit guides them to record their story using a cellphone recording or by journaling. Sharing stories about traumatic events is known to reduce post-traumatic stress, depression, and anxiety. 


3. Users can connect to grief support resources and storytelling events in their region.

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Shadow of Death [EOL in Art 18]

The shadow of death
is scarier than death itself in this depiction by Laura Csajagi.

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Brain Death Conference - Milwaukee

On Tuesday June 2,  the Medical College of Wisconsin Center for Bioethics and Medical Humanities will host a day-long conference exploring issues surrounding brain death:  "Death by Brain Criteria."  

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Father at Mt. Sinai [EOL in Art 17]

Max Ferguson's "My Father at Mt. Sinai" depicts his dad on a hospital bed, with a tube under his nose. The curtain in the foreground is a tallit (a Jewish prayer shawl).  I like that dad is mid-speech and engaged with the viewer.

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Death Carts [EOL in Art 16]

The death cart is an object that was used in acts of corporal penance performed by the Hermanos de la Fraternidad Piadosa de Nuestro Padre Jesús Nazareno. The Brotherhoods were secretive, lay-religious fraternal organizations that served the spiritual needs of Hispanic Roman Catholics in northern New Mexico and southern Colorado in the 19th and early 20th centuries. 



Public processions reenacted the sorrow and suffering of Christ’s final days.  The female Angel of Death, Doña Sebastiana, serves as a reminder of human mortality and the importance of preparing for a good death through prayer and virtuous deeds. 

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End-of-Life Care Is Getting Worse

Joan Teno's new report in The Journal of Palliative Medicine confirms that there are still large gaps between the kind of care that patients and families want and the care they actually receive. 



Teno and her coauthors compared two surveys, one conducted in 2000, and the second carried out between 2011 and 2013. Each of the studies asked individuals about the care received by elderly loved ones at the end of life.  



Despite all the effort put into improving end-of-life care in recent years, there was a marked decline in satisfaction between the first survey and the second. While 56.7% of respondents in 2000 said that the care their loved one received was “excellent,” only 47% could say the same in the 2011-2013 study.



Teno rightly observes: “People are less satisfied with care at the close of life, and I think it’s now urgent for us to start thinking about what interventions we can do to improve care at the end of life.

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Louise Vernet on Her Death Bed [EOL in Art 15]

Paul Delaroche created a convincing and transcendent image of his dead wife in "Louise Vernet on her Death Bed" (1845, graphite on slightly textured, moderately thick, cream wove paper).



Louise lays blissfully in profile, as both her mouth and right eye remain slightly open. Her elevated head rests on two pillows, as locks of her hair fall vertically to her shoulder and drape diagonally across her bosom. Delaroche carefully defined each curl, delineating individual hairs and shimmering highlights, in Louise's palpable coiffure. Her pale skin and her lifeless body indicate that she is deceased. 



Rather than present the sordid details of death by fever, Delaroche conveyed Christian triumph over death, as a halo emerges from the dark background to encircle his wife's beautiful head. This drawing is an angelic effigy.

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Another California Lawsuit for Following the Wrong Surrogate

A few days ago, Bart F. Sullivan filed a lawsuit in Orange County Superior Court (California) against Park Vista at Morningside and Placentia Linda Hospital.  His 92-year-old mother, Clara, died there in May 2014.  Sullivan's legal theories include: abuse of an elder person, negligent wrongful death, medical malpractice, infliction of emotional distress, and fraud.



Most interesting is a claim that the nursing home and hospital lacked a good faith belief in the validity of Clara Sullivan's DNR order.  From the complaint: "Clara Sullivan’s daughter Gail Mitsch had signed a “Do Not Resuscitate” form for Clara . . . a form not only without Plaintiff’s signature (as Plaintiff shared POA for Health care, Exhibit “X” ), but contradicting Clara’s Health Care Directive. . . .  Clara Sullivan on many occasions has expressed her desire for optimal medical treatment."



This sounds a little like the Noval lawsuit in which the hospital proceeded on the basis of the consent of some of the patient's family but without the consent of the duly authorize agent.

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Texas Advance Directives Act - House Debate Today

Today, the Texas House is set to consider legislation to re-evaluate the state’s health commission. The Texas Tribune notes that a number of amendments could set the stage for a fiery debate over the futility provisions in the Texas Advance Directives Act.



Republican lawmakers have filed amendments to Senate Bill 200 that would limit medical professionals’ abilities to override patients' advance directives or their families’ wishes to continue life-sustaining treatment.



The fight over end-of-life care has been a perennial one at the Legislature as lawmakers have struggled to decide whether families or medical professionals should make the final decision to end life-sustaining treatment for a terminally ill patient.



Texas law allows physicians to discontinue treatment they deem unnecessary. But if a physician’s decision to halt treatment is at odds with patients' advance directives — or if their families or surrogates disagree — patients or their families have 10 days to find an alternative medical provider.



They can also appeal the doctor’s decision to a hospital ethics committee.



Some lawmakers want to prohibit physicians from discontinuing care against a family’s wishes, while others want to give patients and their surrogates more discretion but preserve a physician’s ability to make a medical judgment to end treatment.



The pre-filed amendments would give more weight to a family’s wishes over physicians' recommendations.



One pre-filed amendment by Republican state Rep. Bryan Hughes of Mineola would direct the state’s executive health commissioner to develop rules that would prohibit a health care facility or hospital ethics committee from ending life-sustaining treatment based on the “lesser value” the health care facility may place on an elderly, disabled or terminally ill patient versus a young patient who is not disabled or terminally ill.



Hughes said Republicans were pushing the end-of-life measures as amendments to the health agency bill, also known as a Sunset bill, after they were unable to pass them on the House floor.



"Sunset bills have always been vehicles for legislation whether from the left or from the right," Hughes said, adding that the bills were fair game despite the "controversy and concern" surrounding end-of-life issues.



Another amendment by Republican state Rep. James Frank of Wichita Falls would extend from 10 days to 21 days the time families have to find an alternative medical provider to continue life-sustaining treatment their current physician has deemed unnecessary.



Meanwhile, state Rep. Jonathan Stickland, R-Bedford, filed an amendment to prohibit abortions on the basis of fetal abnormalities. In its 20-week abortion ban, the state carved out an exception for abortions in cases of a "severe fetal abnormality," but some conservatives are looking to remove that.



This wouldn’t be the first time a debate over a social issue has come during consideration of a state agency review. An April debate on legislation to reform the Department of State Health Services morphed into a fight over abortion, and the bill was pulled down after a pair of anti-abortion amendments, including one repealing the fetal abnormality exception, were tacked onto the bill over the author’s objections.

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Woman Praying at a Deathbed [EOL in Art 14]

Benjamin Vautier's 1864 pencil drawing "Woman Praying at a Deathbed" includes an open Bible on the table and a rosary on the floor.  These suggest a devout life and the promise of salvation after death.

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European Court of Human Rights Judgment in Vincent Lambert v. France

The European Court of Human Rights will be delivering its Grand Chamber judgment in the case of Lambert and Others v. France (application no. 46043/14) at 11 a.m. on 5 June 2015 in the Human Rights Building, Strasbourg.  A video of the January 2015 hearing is available here.



The ECHR is reviewing the June 2014 judgment by the Conseil d’État (the French Supreme Administrative Court) authorizing the withdrawal of the artificial nutrition and hydration of Vincent Lambert.

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Victor Hugo on His Deathbed [EOL in Art 13]

When the poet, playwright, and novelist Victor Hugo died in 1885, Nadar went to his deathbed to make a final image as a memorial. 



Nadar's sketch of the death chamber showed that black drapery was tied across a window behind the bed and then to one of the bedposts in order to visually isolate Hugo's recumbent figure against a somber background. For the photograph, a mirror reflected light back from the window to provide detail in the shadow area. 

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Jahi McMath - Status in May 2015

On Thursday, Paul A. Byrne published a short article titled "Jahi is Alive - Praise the Lord and Pass the Ammunition."  



Byrne writes that he recently visited Jahi in her home. "Jahi is beautiful. The day that I visited Jahi she had on lip gloss like many teenagers."  While Byrne rejects the very diagnosis of "brain death," some of his assertions appear to be true.  



1.  Byrne writes:  "Jahi's heart has continued to beat on its own more than 60 million times since she was declared 'brain dead.'" 



Pope responds:  Indeed, with mechanical ventilatory support, the hearts of dead individuals can be made to beat.



2.  Byrne writes:  "The doctors in Oakland Children's Hospital further declared that Jahi's heart would stop beating and that she would otherwise deteriorate. These predictions have not occurred."  



Pope responds:  This is apparently true.  Prognostication is not perfect.  Alan Shewmon has shown that some individuals declared dead on neurological criteria have been physiologically sustained for more than a decade.



3.  Byrne writes:  "Healing continues in Jahi, like all living patients declared 'brain dead.'"  



Pope responds:  I am not sure about this.  Most individuals determined dead on neurological criteria rapidly deteriorate DESPITE continued physiological support.  While that has not happened with Jahi, there is no evidence that she is actually "healing."  Of course, if there is evidence of brain activity as several neurologists claimed in October 2014, that would be a very different story.

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Absence of POLST Leads to Criminal Charges

Two New York Fire Department paramedics have been arrested for failing to resuscitate a man on Staten Island.



Daniel Ornstein and Joseph Farrell were responding to a "difficulty breathing" call.  The man, who suffered from Lou Gehrig's Disease, was in cardiac arrest.  



But the man's wife became upset, stating that he had a DNR, order, and didn't want to be brought back to life.  The paramedics sympathized with the patient's wife, even though she could not find the DNR paperwork (only health care proxy paperwork which paramedics aren't allowed to accept).



Nevertheless, the paramedics (falsely) wrote in official reports that they administered an endotracheal tube and administered intravenous medications.  The man was ultimately pronounced dead.



Both men are charged with first- and second-degree offering a false instrument for filing, and second-degree falsifying business records.  They were arraigned and released on their own recognizance.



If the man had a physical POLST or one registered in a POLST registry, this might have been avoided.

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Dying without Dignity - Investigations by the Parliamentary and Health Service Ombudsman into Complaints about End of Life Care

The UK Parliamentary and Health Service Ombudsman has just published an alarming report on the end of life care, “Dying Without Dignity.”  It is a painful and sad read.



The report identifies six key themes, all illustrated with case studies

1. Not recognising that people are dying, and not responding to their needs – if the needs of those who are close to death are not recognised, their care cannot be planned or co‐ordinated, which means more crises and distress for the person and their family and carers.


2. Poor symptom control – people have watched their loved ones dying in pain or in an agitated state because their symptoms have been ineffectively or poorly managed.


3. Poor communication – poor communication is an important element in our complaints on end of life care. It is clear that healthcare professionals do not always have the open and honest conversations with family members and carers that are necessary for them to understand the severity of the situation, and the subsequent choices they will have to make.


4. Inadequate out‐of‐hours services – people who are dying and their carers suffer because of the difficulties in getting palliative care outside normal working hours.


5. Poor care planning – a failure to plan adequately often leads to the lack of co‐ordinated care, for example, GPs and hospitals can fail to liaise.


6. Delays in diagnosis and referrals for treatment – this can mean that people are denied the chance to plan for the end of their life and for their final wishes to be met.

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Marcel Proust on His Deathbed [EOL in Art 12]

In 1922, the photographer Man Ray made a final portrait of Marcel Proust two days after his death.  I love the fact that Proust spent the last night of his life dictating manuscript changes for a section of his famous novel Remembrance of Things Past.

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Conscience and Proper Medical Treatment

Conscience and Proper Medical Treatment is the topic of several articles in the latest issue of Medical Law Review.

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Terminally Ill Patients Visit the Museum [EOL in Art 11]

I have posted 10 paintings that portray death.  Today's "end of life in art" post is a little different.  The art itself (Rembrandt's Self-Portrait with Two Circles) is not about death.  But this image is still relevant and compelling.  



The charity Stichting Ambulance Wens helped a woman with terminal cancer visit the Rijksmuseum in Amsterdam to see an exhibition on Rembrandt.

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Aid in Dying: An Important Possibility at the End of Life

End of Life Choices New York and the New York Society for Ethical Culture invite you to the inaugural Barbara Swartz End of Life Choices Lecture: "Aid in Dying: An Important Possibility at the End of Life."

The speaker will be the renowned palliative care expert Dr. Timothy Quill. Dr. Quill is the Director of the Center for Palliative Care and Clinical Ethics at the University of Rochester School of Medicine. After helping a patient die with life-ending medications, Dr. Quill was the lead physician plaintiff in a landmark U.S. Supreme Court case challenging the law prohibiting physician-assisted death. He is now a plaintiff in Myers v. Schneiderman, a case seeking to achieve aid in dying in New York. 



Tuesday, June 16, 2015

7:00 to 9:00 pm

The New York Society for Ethical Culture

2 West 64th Street at Central Park West

Free and open to the public

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Grief and Mourning at Death [EOL in Art 10]

Munch painted "Death in the Sickroom" in 1893.  Like many other paintings, it deals with the tuberculosis and death of his sister when he was 14.  



Munch directs our focus not to the dying person but to the inner thoughts and grief of the family members.  Sophie sits facing diagonally to the rear, largely invisible both to us and to all the mourners except her father.  She is already absent from their lives. 



Each of the mourners reacts differently and there is no intercourse among them.  Confronted with the loneliness of death, each retreats into his or her lonely self.

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Physicians Should Not Act Like Judges (video)

I love this scene (among others) from "Whose Life Is It Anyway?"  



Sculptor Richard Dreyfus is paralyzed after a car accident.  He decides he wants to die.  But as the film's title suggests, his physician has other ideas.

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Aruna Shanbaug Dies after 42 Years in PVS

Aruna Shanbaug has died in Mumbai after spending 42 years in a vegetative state.



Shanbaug suffered brain damage from a sexual assault and strangling in 1973 by a cleaner at the hospital where she worked. She remained in a vegetative state in Mumbai’s King Edward Memorial Hospital until her death this week.  (Wall Street Journal)



In 2011, the Supreme Court considered Shanbaug’s case after her biographer and friend, Pinki Virani, filed a petition asking judges to order the hospital to stop feeding her and “allow her to die peacefully.”  But, as I wrote at the time, the court denied Virani's petition.

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Monet and Camille [EOL in Art 9]

Monet lived to 86.  But his wife Camille Doncieux died at just 32.



“Camille Monet sur son lit de mort,” or “Camille on Her Deathbed” (1879) is one of Monet’s most powerful paintings of his wife.

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Whispering of Death [EOL in Art 8]

Arnold Böcklin painted this self-portrait in 1872.  Since there seems to be only one string left on the violin, it seems that death is whispering, "I'm coming for you soon."

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Texas House Votes to Narrow Futility Law

On Friday, the Texas House of Representatives passed H.B. 3074.  



As I blogged earlier, this bill would exempt clinically assisted nutrition and hydration from the scope of life-sustaining treatment subject to Tex. Health & Safety Code 166.046.

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History of Cardiac Arrest and Its Effect on Contemporary Medicine (video)

Recently, at the MacLean Center's end-of-life series, Daniel Brauner offered a compelling history of cardiac arrest and its effect on contemporary medicine.  

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Death Will Come for You [EOL in Art 7]

Edvard Munch painted "By the Deathbed in 1895. Here the focus is not so much on the person who has died, but rather on those who have come to grieve him.



While the first four mourners from the left are focused on the person who has died, the fifth mourner is facing the viewer of this painting directly. Her face is somewhat skeletal, representing death.  By looking at the viewer, she sends the message that one day, death will come for us as well. 

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Minnesota Case: Final Exit Network Found Guilty of a Crime for Mere Speech

A 12-member Minnesota jury found Final Exit Network, Inc. guilty of "assisting" in a suicide and interfering with the scene of a death so as to mislead the coroner.  Judge Christian Wilton set the sentencing hearing to take place on August 24. The convictions carry potential fines of $33,000.  (A corporation cannot be incarcerated.)



Oddly, the State's case consisted of proof that the Network's volunteers provided information, education, and emotional support to Doreen Dunn in her self-deliverance on May 30, 2007.  In short, the State's entire case proceeded on the theory that Final Exit Network could be convicted solely for exercising its First Amendment-protected right to freedom of speech.



The State had originally indicted the Network with plans, to convict the Network of "advising" or "encouraging" a suicide, since the State had no evidence of "assisting."  But in separate cases both the Court of Appeals and the Supreme Court held those parts of the Minnesota statute were unconstitutional under the First Amendment.



But notwithstanding those rulings, the FEN trial court determined that one could "assist" a suicide by pure speech, if the speech enabled the suicide.  So, even though mere "advising" and "encouraging" a suicide are constitutionally protected, that very same conduct is (covertly) prohibited by applying a broad reading of "assisting" that includes "advising." 



The Network immediately initiated plans to appeal to the Minnesota Court of Appeals.

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An Official ATS/AACN/ACCP/ESICM/SCCM Policy Statement: Responding to Requests for Potentially Inappropriate Treatments in Intensive Care Unit

Almost all of the major professional association guidelines on medical futility are more than a decade old.  Finally, a new multi-society policy was published online yesterday.  I was pleased to be a part of it.



There is controversy about how to manage requests by patients or surrogates for treatments that clinicians believe should not be administered.  This multi-society statement provides recommendations to prevent and manage intractable disagreements about the use of such treatments in intensive care units. 



The recommendations were developed using an iterative consensus process, including expert committee development and peer review by designated committees of each of the participating professional societies (American Thoracic Society, American Association for Critical Care Nurses, American College of Chest Physicians, European Society for Intensive Care Medicine, and Society of Critical Care). 



The committee recommends: 

• Institutions should implement strategies to prevent intractable treatment conflicts, including proactive communication and early involvement of expert consultants. 


• The term “potentially inappropriate” should be used, rather than futile, to describe treatments that have at least some chance of accomplishing the effect sought by the patient, but clinicians believe that competing ethical considerations justify not providing them.


• Clinicians should explain and advocate for the treatment plan they believe is appropriate. 


• Conflicts regarding potentially inappropriate treatments that remain intractable despite intensive communication and negotiation should be managed by a fair process of conflict resolution; this process should include hospital review, attempts to find a willing provider at another institution, and opportunity for external review of decisions.

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Ignoring the Approach of Death [EOL in Art 6]

Gustav Klimt painted "Death and Life" in 1916.  The allegorical figure of death is portrayed as a robed skeleton, holding a stick, approaching a family that is grouped together. 



The family is filled with life, and they portray the full range of life, from that of a young baby up to older children, to a mother, father, and even a grandmother. In their grouping and position, the family is turning away from death, and seemingly unconcerned by his stalking of them.

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Baby Samuel - Court Vacates DNR over Mom's Objections

In January, when Samuel Flaherty Irvin was less than a month old, the Arizona Department of Child Safety took him from his mother Fawn Flaherty due to  "child abuse, neglect."  (KVOA)



Samuel was placed in a foster home for the medically fragile.  But later that month he choked when they were feeding him and went without oxygen for a prolonged period.  Samuel's treating clinician recommended that he “not receive resuscitation efforts if he deteriorates.”  So, DCS got a Tuscon Judge to authorize a “do not resuscitate” order.   



But Fawn's parental rights had not been terminated.  So, consistent with the law in other states, at the end of April, an appellate court vacated the “do not resuscitate” order.

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Last Portrait of Mother [EOL in Art 5]

In 2010, Daphne Todd won the UK's leading prize for portraiture.  She painted her 100-year-old mother Annie after she died. 



The undertaker allowed her to spend three days in the funeral parlor cool room painting her mother's body, which can be seen emaciated and propped up on pillows, with her white hospital wristband still on. 

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Assisted Suicide: Death with Dignity or Legalized Killing

A debate in Saint Paul, MN on May 26.

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Death Leading the Doctor [EOL in Art 4]

It seems that many of today's physicians could learn something from this 15th century print "Death Leading a Doctor Holding a Vial of Urine."  It is from the La Danse Macabre (Dance of Death) series of prints at the Bibliotheque de la Sorbonne, Paris.

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EMS SignPost - Medical ID on a Refrigerator Magnet

This simple yellow magnet is embedded with an NFC (near-field communication) chip, that allows EMTs to quickly learn about a patient in an emergency.



The NFC technology in the EMS SignPost magnet is the same thing that makes Apple Pay and Google Wallet work. In this case, rather than transmitting payment information when a phone is tapped against it, medical information and documents (like a DNAR order) are transferred. 

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Overtreatment in 1848 [EOL in Art 3]

Edward Lamson Henry portrays his ailing fiancee, Kate White of Philadelphia, who died around the time of the painting.  The flowers, fruit, and cakes, and sunlight make this look like something other than a deathbed scene.



But look at all that medicine on the nightstand.  How much of it helped her?  How much of it actually hastened her death?  How much have things failed to change in 170 years?

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POLST - An Authoritative Summary

The latest issue of BIFOCAL, the journal of the ABA Commission on Law and Aging includes a lucid four-page summary of POLST.  



It is written by four of the top experts on POLST:  Amy Vandenbroucke, Susan Nelson, Patricia A. Bomba, and Alvin H. Moss.

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Respice Finem [EOL in Art 2]

Respice Finem means consider the end.  Here is Saint Jerome in his study surrounded by objects symbolizing transience and death (Joos van Cleve, 1521).  Note the skulls, the snuffed out candle, and other symbols.



This predates the genre of memento mori, images that compelled contemplation of mortality. 

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Ethical Reflection in End-of-Life Decisions: Dutch Perspective (UMN)

At the University of Minnesota on May 18:  "Ethical Reflection in End-of-Life Decisions: Dutch Perspective."

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POLST or Advance Directive? [EOL in Art 1]

This is Antiochus dictating his last wishes (Halle, 1738).  Note the scribe in the lower left.  



If this were 2015, Antiochus might be completing a POLST.  He is close to death.  In contrast, he would have completed an advance directive long before getting wounded in battle.  

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Duty to Transfer Brain Dead Individual

The patient has been determined dead by neurological criteria (brain dead).  While this has been explained to the family, they reject the diagnosis.  Even after an independent second opinion, they still reject the diagnosis.  They ask, "Isn't there anything else we can do?"  

Do you have any obligation to inform this family of the option to transfer?

1.  This question is worth asking because such transfers are apparently actually possible (even if unlikely).  Jahi McMath was transferred to a willing facility.  Jesse Koochin was transferred.  Theresa Hamilton was transferred.  Other brain dead individuals were also transferred.

2.  The duty of "reasonable accommodation" in California, Illinois, and New York might require offering the opportunity to find a transfer.

3.  In other states, offering an opportunity to transfer is normally required in analogous treatment disputes (e.g. futility conflicts).  Just because the current treating facility is unwilling to provide requested treatment does not mean that no other facility will do it.  The transfer waiting period built into most state healthcare decisions statutes recognizes this variability.

4.  But these transfer provisions do not directly apply to the brain death dispute, because the individual is no longer a patient.  And the requested physiological intervention is not "life-sustaining treatment" or even "health care."

5.  There is no duty to inform the family of the option to transfer under the doctrine of informed consent.  That is a malpractice duty and it ends with the death of the patient.

6.  So, outside CA, IL, and NY, what is the legal duty to inform and facilitate a transfer?  It is unclear exactly where such a duty would be grounded other than in the torts NIED and IIED.  If transfer is a reasonable choice, then clinicians might expect the family would be distressed to discover they were deprived of the option.


7.  In short, while there may be a custom and practice to provide "some" accommodation (normally continued physiological support for around 24 hours) outside CA, IL, and NY, it is unclear whether there is a duty to provide any accommodation much less providing an opportunity to transfer.

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New Multi-Society Futility Policy

The ATS International Conference starts next Friday in Denver.  In advance that meeting, the ATS of will release "An Official ATS / AACN / ACCP / ESICM / SCCM Policy Statement: Responding to Requests for Potentially Inappropriate Treatments in Intensive Care Units."  



This multi-society statement provides recommendations to prevent and manage intractable disagreements about the use of such treatments in ICUs.

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Christians and Aggressive End-of-Life Care

I am at a conference on "Law, Religion and Health in America" at Harvard.  So, this caught my eye today.  Vanderbilt surgeon Myrick C. Shinall, Jr. has just published "Christians and Aggressive End-of-Life Care" in Perspectives in Biology and Medicine.  Here is the abstract:



Patients or their family members sometimes give religious reasons for requesting life-sustaining technologies that have little hope of restoring health. This poses an ethical challenge for clinicians and a potential strain on limited health-care resources. 



Among Christians, one explanation for a preference for aggressive, life-prolonging care is the influence of the idea of martyrdom, which became the normative form of dying in early Christianity. The ancient discourse of martyrdom and the modern discourse of aggressive medical care both share a martial orientation and commend an ethos of combat. 



This paper examines ancient Christian martyrdom discourse to illuminate its affinity with the discourse of aggressive medical care. The ethos of martyrdom has shaped Christian attitudes toward death such that preference for aggressive medical care at the end of life is understandable. 

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Delaware Passes POLST Bill (DMOST)

Yesterday, the Delaware Senate passed H.B. 64, which the House passed at the end of March. Once signed by the governor, this will add a new title 25A to title 16 of the Delaware Code:  "Delaware Medical Orders for Scope of Treatment Act” (DMOST Act)."


Getting a legal status for POLST in Delaware has been a long a bumpy road.  I review some of that here.



This summer, I will be assessing this and other new POLST and surrogate decision making statutes for the 2016 supplement to the RIGHT TO DIE legal reference treatise.

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22 Week Babies - Viable After All

This week's New England Journal of Medicine reports that in a large and systematic study of thousands of premature births, a tiny minority of babies born at 22 weeks who were medically treated survived with few health problems.  The study also found that hospitals varied widely in their approach to 22-week-olds, ranging from a few that offer no active medical treatment to a handful that assertively treat most cases.  



 22-week-old babies did not survive without medical intervention. In 78 cases where active treatment was given, 18 survived, and by the time they were young toddlers, seven of those did not have moderate or severe impairments. Six had serious problems such as blindness, deafness or severe cerebral palsy.  Of the 755 born at 23 weeks, treatment was given to 542. About a third of those survived, and about half of the survivors had no significant problems.

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Christopher Dolan's Other Brain Death Case

From today's San Francisco Examiner.



"I can tell you, as you will soon hear, that a brain death diagnosis made in the Bay Area recently at a well-known hospital made by four members of the hospital’s medical staff was recently overturned by two independent neurologists who conducted an examination pursuant to a court order."



"Like the McMath case, I handled that too albeit in a less public manner than the McMath case. So are people crazy who challenge doctors? No. Are doctors fallible? Yes. Should life be taken by mistake? Not on my watch."

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Minnesota Health Law Section Spring Social

You are invited to join the Health Law Section of the Minnesota State Bar Association for their annual Spring Social.  

Come to the River Room at the Aster Cafe on Tuesday, May 19, 2015, from 5:30 to 7:00 PM.  

Socialize with your colleagues over drinks and appetizers.  This is a great opportunity to get to know your fellow practitioners and to reconnect with old friends.  We will announce the winner of the Student Writing Competition and host law students from the local law schools for our annual Law School Student Reception.  

The Health Law Section will provide complimentary hors d'oeuvres and non-alcoholic beverages.  Cash bar will be available also. The event is free to Health Law Section members, law students, and new admittees.  RSVP’s are requested by Friday, May 15.

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Another Florida "Terri Schiavo" Court Case

Now playing out in the Florida courts is a case strikingly similar to the Terri Schiavo case that was litigated there more than a decade ago.



THE PATIENT

Tim Mattingly, 67, is a retired DeLand police lieutenant.  He was taken to Halifax Health Medical Center in Daytona Beach, on March 29, after he fell while coming down out of the attic in his home. He hit his head on the concrete floor of the garage, and underwent surgery to relieve swelling in his brain, including the removal of part of his skull.



FAMILY CONFLICT

In a plea aimed at convincing a judge to allow her brother to live and not take him off life support, Kathleen Provitola testified that her comatose sibling opened his eyes and followed her husband’s movement. She says that he is improving.



But two of Mattingly’s other sisters want him removed from life support saying their brother had told them in the past that he did not want to live in an incapacitated condition.  Their testimony is corroborated by Mattingly's fellow police officers who testified about his response to seriously injured victims they encountered in the line of duty.



THE COURT

Circuit Judge C. McFerrin Smith III will issue a judgment on Friday.

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