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Thứ Sáu, 31 tháng 7, 2015
Texas Advance Directives Act - Symposium
The August issue of the American Journal of Bioethics [15(8)] includes a target article and peer commentaries on the Texas Advance Directives Act. Here is an extract from the table of contents. I am pleased to be included among these.
The Texas Advanced Directive Law: Unfinished Business
Michael Kapottos & Stuart Youngner
pages 34-38
Pining for Courts to Resolve Intractable Disputes Between Families and Physicians Is a Pipe Dream
John J. Paris & Andrew Hawkins
pages 39-40
The Texas Advance Directives Act: Must a Death Panel Be a Star Chamber?
Thaddeus Mason Pope
pages 41-43
Futility and Fairness: A Defense of the Texas Advance Directive Law
Nancy S. Jecker
pages 43-46
The Texas Advance Directives Act Is Not About Professional Integrity
Tom Tomlinson
pages 46-48
A Texas Perspective on TADA: Physician Autonomy and the Corporate Practice of Medicine Act
Craig M. Klugman & Brigid Sheridan
pages 48-49
The Unfinished Business of Developing Standards for End-of-Life Care: Leveraging Quality Improvement and Peer Review
Jeffrey T. Berger
pages 50-51
The Misleading Vividness of a Physician Requesting Futile Treatment
Colleen M. Gallagher, Jeffrey S. Farroni, Jessica A. Moore, Joseph L. Nates & Maria A. Rodriguez
pages 52-53
Professionally Responsible Clinical Ethical Judgments of Futility
Laurence B. McCullough
pages 54-56
TADA Is Still Unfair
Philip M. Rosoff
pages 56-58
Finishing the Texas Advance Directives Law
Chris Hackler
pages 58-60
Funeral Home Staff at the Hospice [EOL in Art 81]
Yesterday, I blogged about Ed Kashi's Aging in America: The Years Ahead. Here is another photograph from that collection. Virginia Magrath watches as her husband's body is taken away by funeral home staff after his passing in the On Lok hospice.
Thứ Năm, 30 tháng 7, 2015
Jahi McMath - Hearing on Demurrer
I will cross link to those reporting on what transpired at today's hearing on the demurrer.
But the Jahi McMath family must have made some good arguments. The judge did not automatically stick to the tentative. He took the matter under submission.
But the Jahi McMath family must have made some good arguments. The judge did not automatically stick to the tentative. He took the matter under submission.
Jahi McMath - Court's Tentative Ruling
Alameda County Superior Court Judge Freedman issued the following tentative ruling on on the demurrer to the Jahi McMath medical malpractice action on which there will be a hearing this afternoon.
This is a direct copy and paste from the court's website, except that I made the text blue and added some paragraph breaks.
This Tentative Ruling is made by Judge Robert B. Freedman On the Demurrer to Complaint by Defendant Frederick S. Rosen, M.D. ("Dr. Rosen"), filed on June 16, 2015, COUNSEL ARE TO APPEAR, in person or by CourtCall, at the hearing at 2:00 p.m. on July 30, 2015. The hearing will take place in Department 16, instead of Department 20, which is on the third floor of the Administration Building, 1221 Oak Street, Oakland. This is solely a location change for this hearing (at which Judge Freedman will preside) and not a reassignment.
(1) As to the demurrer to the First Cause of Action for personal injuries on behalf of Jahi McMath ("Jahi"), the court is inclined to sustain the demurrer, but wants counsel to address the collateral estoppel argument in more detail at the hearing, as set forth in the court's accompanying tentative ruling on the demurrer by Dr. Rosen.
(2) The court is inclined to drop the motion to strike the allegation as to "medical, nursing and other related expenses in the future" (Complaint, ¶ 36) as moot in light of whatever ruling the court makes on the demurrer to the First Cause of Action.
(3) The court will address the motion to strike the language "[i]n the event that it is determined Jahi McMath succumbed" (Complaint, ¶ 44), and whether it is necessary to have a successor in interest or personal representative pursue a malpractice claim on Jahi's behalf, in the context of its determination as to the First Cause of Action.
(4) The court intends to grant the motion to strike the inclusion of Marvin Winkfield as a plaintiff on the wrongful death cause of action as unopposed.
(1) As to the demurrer to the First Cause of Action for personal injuries on behalf of Jahi McMath ("Jahi"), the court is inclined to sustain the demurrer but wants counsel to address the collateral estoppel argument in more detail at the hearing, including (among other things) the following:
(a) Aside from their arguments that there are "new facts or changed circumstances" and that "the public policies underlying collateral estoppel" should preclude its application here, do the plaintiffs contend that any of the traditional criteria for application of the doctrine has not been established here? Plaintiffs' argument in section B of the opposition memorandum is vague in this regard. It appears to the court, based solely on the text of the Amended Order of January 2, 2014 in Case No. RP13-707598 ("Amended Order"), that is a proper subject of judicial notice, that "the issue sought to be precluded from relitigation ... [is] identical to that decided in a former proceeding." (Lucido v. Superior Court (1990) 51 Cal.3d 335, 342.) More specifically, the Amended Order expressly states that the "issues in this case as presented by the petitioner necessarily required the court to reach the threshold issue of whether petitioner's daughter was legally dead." (Amended Order, p. 3, n. 2.) "The 'identical issue' requirement addresses whether 'identical factual allegations' are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same." (Lucido v. Superior Court (1990) 51 Cal.3d 335, 342.) It also appears from the face of the Amended Order that the "issue [was] actually litigated in the former proceeding" and that it was "necessarily decided in the former proceeding." (Lucido, supra, at p. 342; Amended Order, pp. 1-19.) It also appears from the matters of judicial notice that "the decision in the former proceeding [is] final and on the merits" (Lucido, supra, at p. 342), as it resulted in a "Final Judgment Denying Petition for Medical Treatment," filed on January 17, 2014, as to which there is no evidence or argument that it is the subject of a pending appeal or should otherwise be considered non-final. Finally, there appears to be no dispute that the "party against whom preclusion is sought" - Jahi McMath - is "the same as, or in privity with, the party to the former proceeding," which was brought by Latasha Winkfield (a plaintiff herein) as Jahi's mother. (Amended Order, p. 1; Final Judgment, p. 1; Lucido, supra, at p. 342.)
(b) Aside from the order and judgment in the prior case, there is also an official death certificate issued by the County of Alameda, of which Dr. Rosen has requested judicial notice. The court believes this is a proper subject of judicial notice, as the matter sought to be noticed is not a fact such as the time or cause of death but the very fact that there has been an official determination of death and that a death certificate has been issued. Neither side has devoted much attention to the significance of the issuance of the death certificate on the standing of an individual (declared dead in the certificate) to bring a lawsuit. Is there any applicable authority? (Cf. C.C.P. § 377.32(c) [person seeking to commence an action as successor in interest to a decedent must file a declaration attaching a "certified copy of the decedent's death certificate."])
(c) As to the argument about "new facts or changed circumstances," neither side has cited authority that the court finds particularly analogous or instructive as applied here. The court is not persuaded, for example, that Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1754, or Jessica C. (2001) 93 Cal.App.4th 1027, 1038, provides a useful analogy, as those cases involved juvenile dependency or review proceedings in which a court is tasked to consider the circumstances existing at the time of the later proceeding and in which there was new evidence as to alleged molestation. Here, while plaintiffs allege that "[r]ecent evaluations by doctors, including a board certified pediatric neurologist, confirm that Jahi does not meet the definition of brain death" (Complaint, ¶ 26), are such allegations in themselves sufficient to reopen a factual issue determined in a judicial proceeding and official death certificate? Does either side have additional analogous authority in this regard?
(d) If the court were to sustain the demurrer with leave to amend, what additional factual allegations would Jahi be able to include that could affect the application of collateral estoppel to the issue of whether she is legally alive so as to have individual standing?
(e) If the court sustains the demurrer to Jahi's cause of action, the court is inclined to grant leave to amend to allow a similar cause of action to be pleaded by Jahi's successor in interest or personal representative. (See C.C.P. § 377.30 et seq.) (2) As to Dr. Rosen's demurrer to the Second Cause of Action for negligent infliction of emotional distress, the court is inclined to SUSTAIN the demurrer, pursuant to C.C.P. § 430.10(e), WITH LEAVE TO AMEND to allege facts sufficient to constitute a cause of action against Dr. Rosen on such a theory, including allegations that the plaintiffs were "present at the scene of the injury-producing event at the time it occur[red] and [were] then aware that it [was] causing injury to the victim...." (Bird v. Saenz (2002) 28 Cal.4th 910, 915; Thing v. La Chusa (1989) 48 Cal.3d 644, 667-668.) As in Bird, "plaintiffs cannot prevail on a claim for NIED based solely on the" allegedly negligent surgery performed by Dr. Rosen, as "no plaintiff was present in the operating room at the time that event occurred." (Bird, supra, 28 Cal.4th at p. 916.) To the extent that the "injury-producing event" was Dr. Rosen's failure to "diagnose and treat" Jahi's medical condition after the surgery, plaintiffs do not have sufficient factual allegations that they "meaningfully ... perceived any such failure" on the part of Dr. Rosen as distinguished from the acts and omissions of Children's Hospital Oakland ("CHO") nurses and other personnel. (Cf. Bird, supra, 28 Cal.4th at p. 917.)
This is a direct copy and paste from the court's website, except that I made the text blue and added some paragraph breaks.
This Tentative Ruling is made by Judge Robert B. Freedman On the Demurrer to Complaint by Defendant Frederick S. Rosen, M.D. ("Dr. Rosen"), filed on June 16, 2015, COUNSEL ARE TO APPEAR, in person or by CourtCall, at the hearing at 2:00 p.m. on July 30, 2015. The hearing will take place in Department 16, instead of Department 20, which is on the third floor of the Administration Building, 1221 Oak Street, Oakland. This is solely a location change for this hearing (at which Judge Freedman will preside) and not a reassignment.
(1) As to the demurrer to the First Cause of Action for personal injuries on behalf of Jahi McMath ("Jahi"), the court is inclined to sustain the demurrer, but wants counsel to address the collateral estoppel argument in more detail at the hearing, as set forth in the court's accompanying tentative ruling on the demurrer by Dr. Rosen.
(2) The court is inclined to drop the motion to strike the allegation as to "medical, nursing and other related expenses in the future" (Complaint, ¶ 36) as moot in light of whatever ruling the court makes on the demurrer to the First Cause of Action.
(3) The court will address the motion to strike the language "[i]n the event that it is determined Jahi McMath succumbed" (Complaint, ¶ 44), and whether it is necessary to have a successor in interest or personal representative pursue a malpractice claim on Jahi's behalf, in the context of its determination as to the First Cause of Action.
(4) The court intends to grant the motion to strike the inclusion of Marvin Winkfield as a plaintiff on the wrongful death cause of action as unopposed.
(1) As to the demurrer to the First Cause of Action for personal injuries on behalf of Jahi McMath ("Jahi"), the court is inclined to sustain the demurrer but wants counsel to address the collateral estoppel argument in more detail at the hearing, including (among other things) the following:
(a) Aside from their arguments that there are "new facts or changed circumstances" and that "the public policies underlying collateral estoppel" should preclude its application here, do the plaintiffs contend that any of the traditional criteria for application of the doctrine has not been established here? Plaintiffs' argument in section B of the opposition memorandum is vague in this regard. It appears to the court, based solely on the text of the Amended Order of January 2, 2014 in Case No. RP13-707598 ("Amended Order"), that is a proper subject of judicial notice, that "the issue sought to be precluded from relitigation ... [is] identical to that decided in a former proceeding." (Lucido v. Superior Court (1990) 51 Cal.3d 335, 342.) More specifically, the Amended Order expressly states that the "issues in this case as presented by the petitioner necessarily required the court to reach the threshold issue of whether petitioner's daughter was legally dead." (Amended Order, p. 3, n. 2.) "The 'identical issue' requirement addresses whether 'identical factual allegations' are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same." (Lucido v. Superior Court (1990) 51 Cal.3d 335, 342.) It also appears from the face of the Amended Order that the "issue [was] actually litigated in the former proceeding" and that it was "necessarily decided in the former proceeding." (Lucido, supra, at p. 342; Amended Order, pp. 1-19.) It also appears from the matters of judicial notice that "the decision in the former proceeding [is] final and on the merits" (Lucido, supra, at p. 342), as it resulted in a "Final Judgment Denying Petition for Medical Treatment," filed on January 17, 2014, as to which there is no evidence or argument that it is the subject of a pending appeal or should otherwise be considered non-final. Finally, there appears to be no dispute that the "party against whom preclusion is sought" - Jahi McMath - is "the same as, or in privity with, the party to the former proceeding," which was brought by Latasha Winkfield (a plaintiff herein) as Jahi's mother. (Amended Order, p. 1; Final Judgment, p. 1; Lucido, supra, at p. 342.)
(b) Aside from the order and judgment in the prior case, there is also an official death certificate issued by the County of Alameda, of which Dr. Rosen has requested judicial notice. The court believes this is a proper subject of judicial notice, as the matter sought to be noticed is not a fact such as the time or cause of death but the very fact that there has been an official determination of death and that a death certificate has been issued. Neither side has devoted much attention to the significance of the issuance of the death certificate on the standing of an individual (declared dead in the certificate) to bring a lawsuit. Is there any applicable authority? (Cf. C.C.P. § 377.32(c) [person seeking to commence an action as successor in interest to a decedent must file a declaration attaching a "certified copy of the decedent's death certificate."])
(c) As to the argument about "new facts or changed circumstances," neither side has cited authority that the court finds particularly analogous or instructive as applied here. The court is not persuaded, for example, that Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1754, or Jessica C. (2001) 93 Cal.App.4th 1027, 1038, provides a useful analogy, as those cases involved juvenile dependency or review proceedings in which a court is tasked to consider the circumstances existing at the time of the later proceeding and in which there was new evidence as to alleged molestation. Here, while plaintiffs allege that "[r]ecent evaluations by doctors, including a board certified pediatric neurologist, confirm that Jahi does not meet the definition of brain death" (Complaint, ¶ 26), are such allegations in themselves sufficient to reopen a factual issue determined in a judicial proceeding and official death certificate? Does either side have additional analogous authority in this regard?
(d) If the court were to sustain the demurrer with leave to amend, what additional factual allegations would Jahi be able to include that could affect the application of collateral estoppel to the issue of whether she is legally alive so as to have individual standing?
(e) If the court sustains the demurrer to Jahi's cause of action, the court is inclined to grant leave to amend to allow a similar cause of action to be pleaded by Jahi's successor in interest or personal representative. (See C.C.P. § 377.30 et seq.) (2) As to Dr. Rosen's demurrer to the Second Cause of Action for negligent infliction of emotional distress, the court is inclined to SUSTAIN the demurrer, pursuant to C.C.P. § 430.10(e), WITH LEAVE TO AMEND to allege facts sufficient to constitute a cause of action against Dr. Rosen on such a theory, including allegations that the plaintiffs were "present at the scene of the injury-producing event at the time it occur[red] and [were] then aware that it [was] causing injury to the victim...." (Bird v. Saenz (2002) 28 Cal.4th 910, 915; Thing v. La Chusa (1989) 48 Cal.3d 644, 667-668.) As in Bird, "plaintiffs cannot prevail on a claim for NIED based solely on the" allegedly negligent surgery performed by Dr. Rosen, as "no plaintiff was present in the operating room at the time that event occurred." (Bird, supra, 28 Cal.4th at p. 916.) To the extent that the "injury-producing event" was Dr. Rosen's failure to "diagnose and treat" Jahi's medical condition after the surgery, plaintiffs do not have sufficient factual allegations that they "meaningfully ... perceived any such failure" on the part of Dr. Rosen as distinguished from the acts and omissions of Children's Hospital Oakland ("CHO") nurses and other personnel. (Cf. Bird, supra, 28 Cal.4th at p. 917.)
Aging in America: The Years Ahead [EOL in Art 80]
In Aging in America: The Years Ahead photographer Ed Kashi chronicles what it means to have a “good old age” by collecting scores of personal histories that, when viewed together, challenge the culture of aging in America.
In this photograph, Maxine Peters finally passes away at home, surrounded by her family, friends and hospice aides. In rural West Virginia, people still live -and die - the old fashioned way. The Hospice Care Corporation sends health workers into rural homes to make sure that people can meet a dignified end, surrounded by their families.
In this photograph, Maxine Peters finally passes away at home, surrounded by her family, friends and hospice aides. In rural West Virginia, people still live -and die - the old fashioned way. The Hospice Care Corporation sends health workers into rural homes to make sure that people can meet a dignified end, surrounded by their families.
Thứ Tư, 29 tháng 7, 2015
Voyage of Life [EOL in Art 79]
Thomas Cole painted "The Voyage of Life" in 1842. The four paintings represent the stages of human life: childhood, youth, manhood, and old age. The paintings follow a voyager who travels in a boat on a river, the river of life.
The landscape, corresponding to the seasons of the year, plays a major role in telling the story.
The landscape, corresponding to the seasons of the year, plays a major role in telling the story.
- In childhood, the infant glides from a dark cave into a rich, green landscape.
- As a youth, the boy takes control of the boat and aims for a shining castle in the sky.
- In manhood, the adult relies on prayer and religious faith to sustain him through rough waters and a threatening landscape.
- Finally, the man becomes old and the angel guides him to heaven across the waters of eternity.
International Symposium on Brain Death & Disorders of Consciousness
The Seventh International Symposium on Brain Death and Disorders of Consciousness will be held this December in Havana, Cuba.
SUBMIT AN ABSTRACT
You can participate in the Symposium as a delegate, although the conference organizers encourage you to submit an abstract. Deadline for submission of abstracts: September 15, 2015. Notification of Accepted Abstracts: October 15, 2015.
MAIN TOPICS: BRAIN DEATH
MAIN TOPICS: DISORDERS OF CONSCIOUSNESS
AMERICAN CITIZENS CAN LEGALLY ATTEND
After the announcement of the re-establishment of USA and Cuba diplomatic relationships, US citizens DO NOT require requesting special permissions to attend a meeting in Cuba, because they can attend any conference in Cuba that relates to the traveler’s profession, professional background, or area of expertise, including graduate-level full-time study.
GENERAL DESCRIPTION
Although inserted into a worldwide debate, the acceptance that a human being with irreversible loss of brain functions is dead has been progressively accepted beginning as far back as the late 1950’s. Nonetheless, two contentious brain-dead cases have recently raised again new controversies about the diagnosis of brain death (BD), widely covered by the US and international press.
The Jahi McMath case centers on the bioethical debate surrounding her family s rejection for accepting the BD diagnosis, and their efforts to maintain her body on mechanical ventilation.
Marlise Nicole Muñoz was declared brain-dead, but, doctors kept her body on a respirator because she was 14 weeks pregnant. Contrary to the McMath case, Muñoz s husband entered a legal battle to have her removed from life support, assuring that she had previously told him that in case of BD, she would not want to be kept alive artificially. Moreover, Erick Muñoz s attorneys also argued that the fetus had suffered from oxygen deprivation and was suspected to be non-viable.
Furthermore, the Terri Schiavo, and other famous cases have raised new controversies about the diagnosis and management of the persistent vegetative, the minimally conscious state, etc. Hence, the disorders of consciousness discussions are actual and permanent subjects for debate in the media and scientific discussion in any forum.
SUBMIT AN ABSTRACT
You can participate in the Symposium as a delegate, although the conference organizers encourage you to submit an abstract. Deadline for submission of abstracts: September 15, 2015. Notification of Accepted Abstracts: October 15, 2015.
MAIN TOPICS: BRAIN DEATH
- Conceptual approach to human death.
- BD criteria in different countries.
- Ancillary tests in BD.
- Autonomic nervous system assessment in BD.
- BD in childhood.
- Anencephalic infants.
- End-of-life dilemmas: terminal patient, euthanasia, assisted suicide, etc.
- Legal considerations surrounding BD and related states.
- Philosophical, theological, sociological, historical and cultural considerations of human death.
- Organ transplantation.
MAIN TOPICS: DISORDERS OF CONSCIOUSNESS
- Pathophysiological mechanisms of consciousness generation.
- Coma, persistent vegetative state (PVS), minimally conscious state (MCS), and other DOC.
- Clinical diagnosis of DOC.
- Neuroimaging techniques for assessing DOC.
- Neurophysiologic tests for assessing DOC.
- Autonomic nervous system assessment of DOC.
- Neurorehabilitation of DOC.
- Neuroprotection and Neuromonitoring of DOC.
- New trends in cardio-pulmonar-cerebral resuscitation.
AMERICAN CITIZENS CAN LEGALLY ATTEND
After the announcement of the re-establishment of USA and Cuba diplomatic relationships, US citizens DO NOT require requesting special permissions to attend a meeting in Cuba, because they can attend any conference in Cuba that relates to the traveler’s profession, professional background, or area of expertise, including graduate-level full-time study.
GENERAL DESCRIPTION
Although inserted into a worldwide debate, the acceptance that a human being with irreversible loss of brain functions is dead has been progressively accepted beginning as far back as the late 1950’s. Nonetheless, two contentious brain-dead cases have recently raised again new controversies about the diagnosis of brain death (BD), widely covered by the US and international press.
The Jahi McMath case centers on the bioethical debate surrounding her family s rejection for accepting the BD diagnosis, and their efforts to maintain her body on mechanical ventilation.
Marlise Nicole Muñoz was declared brain-dead, but, doctors kept her body on a respirator because she was 14 weeks pregnant. Contrary to the McMath case, Muñoz s husband entered a legal battle to have her removed from life support, assuring that she had previously told him that in case of BD, she would not want to be kept alive artificially. Moreover, Erick Muñoz s attorneys also argued that the fetus had suffered from oxygen deprivation and was suspected to be non-viable.
Furthermore, the Terri Schiavo, and other famous cases have raised new controversies about the diagnosis and management of the persistent vegetative, the minimally conscious state, etc. Hence, the disorders of consciousness discussions are actual and permanent subjects for debate in the media and scientific discussion in any forum.
Thứ Ba, 28 tháng 7, 2015
Jahi McMath - Court May Allow Family to Prove She is Now Alive
This Thursday at 2:00, in Department 20 of the Alameda County Superior Court, Judge Freedman will hold a hearing on the medical defendants' demurrer to the medical malpractice complaint by the family of Jahi McMath. The focus of the hearing will apparently be on whether the the family will be permitted the opportunity to prove that Jahi is alive.
In a reply brief in support of his demurrer to the McMath family complaint, Dr. Rosen rightly notes that the family asserts Jahi had "miraculously managed to reverse her irreversible brain death, and she is now a living person." Dr. Rosen compares the family's allegation to "a scene in a science fiction movie."
Dr. Rosen argues that the court should "refrain from giving any legitimacy to plaintiffs' incredible claim that Jahi has regained brain function after sustaining irreversible brain death in December 2013." After all, Rosen argues, "brain death is an irreversible condition by accepted medical science and statutory definition. . . . Plaintiffs' contention that Jahi's brain death is medically reversible runs afoul of the UDDA, science, and . . . societal interests . . . ."
A Friendly Reminder [EOL in Art 78]
I was delighted to see Bert Rodrguez's 2005 "A Friendly Reminder" at the Boca Raton Museum of Art this week.
Thứ Hai, 27 tháng 7, 2015
Illness & Healing: Images of Cancer [EOL in Art 77]
Robert Pope (no relation) published this 140-page volume in 1995. The 92 illustrations evoke the dependence, fear, loneliness, pain, and even the mutilation surrounding cancer illness and therapy.
These disturbing, unhappy images are difficult for medical people who are imbued with traditional optimism. We do not like to think that our patients feel so lonely and afraid, especially those who are doing well or who have supposedly curable ailments, like Hodgkin's Disease, which Pope relentlessly calls "cancer." (HT: NYU Lit Med)
Perhaps for that reason, Pope's family and friends created a special foundation to donate this book of his art and words to students entering medical school. Early in their training, it provides them with a stark and tangible reminder of how it feels to be a patient in the world of modern medicine.
These disturbing, unhappy images are difficult for medical people who are imbued with traditional optimism. We do not like to think that our patients feel so lonely and afraid, especially those who are doing well or who have supposedly curable ailments, like Hodgkin's Disease, which Pope relentlessly calls "cancer." (HT: NYU Lit Med)
Perhaps for that reason, Pope's family and friends created a special foundation to donate this book of his art and words to students entering medical school. Early in their training, it provides them with a stark and tangible reminder of how it feels to be a patient in the world of modern medicine.
More California Brain Death Disputes
In addition to the Jahi Mcath case, I was recently blogged about a few other brain death disputes in California. - Johah Panduro
- Lisa Avila
- I discussed a few other CA cases in this talk in Los Angeles
Last week, there was yet another court case. Ashish Tyagi apparently drowned in his swimming pool. He was declared dead at a Kaiser Permanente hospital in Santa Clara. But the family filed a petition to keep Tyagi on a ventilator until an independent neurological exam from a non-Kaiser doctor could be conducted.
A Santa Clara County Superior Court judge denied the application after a day-long hearing.
Chủ Nhật, 26 tháng 7, 2015
Health Law at SEALS Annual Conference
I am at the Waldorf Astoria Boca Raton for the SEALS Annual conference. There are five long sessions focused on health law on Monday, Tuesday, and Wednesday.
The Health Care System of Tomorrow
The future of the health care system depends on effective policy implementation tailored to the evolving landscape of regulatory constraints, delivery models, emerging technologies, and changing population needs. This panel will identify current legal and policy barriers to effective functioning of the health care system. Specific areas of coverage include critiques of current (1) Medicare financing of graduate medical education, as both outdated and contributing to provider shortages in critical areas; (2) Medicaid coverage policies that prevent adequate home and community based services; (3) approaches to regulating reproductive technologies, including oocyte cryopreservation and posthumous reproduction; and (4) Medicare payment policies that fail to recognize hospital influence on out-of-hospital treatment.
Presenters
- Kelly Dineen - Saint Louis University School of Law
- Laura Hermer - Hamline University School of Law
- Browne Lewis - Cleveland State University, Cleveland-Marshall College of Law
- Jessica Mantel - University of Houston Law Center
- Seema Mohapatra - Barry University, Dwayne O. Andreas School of Law
- Stacey Tovino - University of Nevada, Las Vegas, William S. Boyd School of Law
Hot Issues in Law and Bioethics
Medical practice realities interact with law and ethics to profoundly impact patients and the nature of policy development. This discussion will focus on illustrative examples, including (1) end-of-life decision making (physician aid in dying, determination of brain death, assisting patients with advance directives, and the legacy of Schiavo), (2) the impact of difference, disability, and non-typical functioning on appropriate and equitable treatment, (3) the meaning of informed consent in different contexts, (4) public health approaches that negatively impact individuals, (5) genetic and reproductive technologies, and (6) routine provider practices that harm patients. The participants will discuss the implications of these and other issues, share current research, and recommend possible directions for inquiry and action.
- Jennifer Bard - University of Cincinnati College of Law
- Zack Buck - Mercer University Law School
- Kathy Cerminara - Nova Southeastern University, Shepard Broad College of Law
- Kelly Dineen - Saint Louis University School of Law
- Fatma Marouf - University of Nevada, Las Vegas, William S. Boyd School of Law
- Seema Mohapatra - Barry University, Dwayne O. Andreas School of Law
- Moderator - Thaddeus Pope - Hamline University School of Law
- Jessica Roberts - University of Houston Law Center
- Joanna Sax - California Western School of Law
- Stacey Tovino - University of Nevada, Las Vegas, William S. Boyd School of Law
- Jessica Mantel - University of Houston Law Center
- Bryn Esplin - Cleveland Clinic
King v. Burwell
King v. Burwell was one of the biggest cases decided by the Supreme Court this term. The case was the second major Obamacare decision by the Supreme Court and centered on whether the federal government can give subsidies to people who obtain health insurance on an exchange operated by the federal government in a state that has declined to set up its own exchange. The case raises questions about judicial review of agency statutory interpretation under the Chevron doctrine, states’ rights, and the Court’s interpretive posture with respect to major acts of Congress. Discussants from the disciplines of constitutional law, administrative law, health law, and tax law discuss the implications of the Court's decision.
- Josh Blackman - South Texas College of Law
- Erin Fuse Brown - Georgia State University College of Law
- Andy Hessick - University of Utah, S.J. Quinney College of Law
- Abigail Moncrieff - Boston University School of Law
- Eric Segall - Georgia State University College of Law
- Sidney Watson - Saint Louis University School of Law
- Russell Weaver - University of Louisville, Louis D. Brandeis School of Law
- Elizabeth Weeks Leonard - University of Georgia School of Law
New Scholars Colloquia - Healthcare Law
- Professor Marie Boyd, University of South Carolina School of Law, Serving Up Allergy Labeling: A Proposal (Mentor: Professor Louis Virelli, Stetson University College of Law)
- Professor Zack Buck, Mercer University Law School, The Fractured Fiduciary: Recasting the Duties of the Physician (Mentor: Professor Elizabeth Pendo, St. Louis University School of Law)
- Professor Cora Walker, Saint Louis University School of Law, Medicaid Waivers: States as Laboratories for Payment and Delivery System Innovation to Address Disparities (Mentor: Professor Stacey Tovino, University of Las Vegas William S. Boyd School of Law)
- Moderator - Alena Allen, University of Memphis, Cecil C. Humphreys School of Law
Current Issues in Reproductive Rights
In October 2014, Apple and Facebook announced that they would begin paying for egg freezing for their employees. Whether hailed as progress or a setback on women's rights, the announcement is symbolic of the significance of reproductive technologies to contemporary families. The law, however, lags behind technological developments. This discussion group will address the variety of legal issues that come about with technological advances in reproductive technology, such as parentage issues with sperm and egg donors, non-invasive prenatal diagnostic testing, commercial surrogacy, and proposed restrictions on assisted reproductive technologies. This discussion group will also address other issues related to reproductive rights, including Roe v. Wade then and now and the personhood movement.
- Naomi Cahn - The George Washington University Law School
- Judith Daar - Whittier Law School
- Linda Fentiman - Pace University School of Law
- Seema Mohapatra - Barry University, Dwayne O. Andreas School of Law
- Jeffrey Parness - Northern Illinois University College of Law
- Mary Ziegler - Florida State University College of Law
- Browne Lewis - Cleveland State University, Cleveland-Marshall College of Law
- Meredith Harbach - University of Richmond School of Law
The Nursing Home - for Superheroes [EOL in Art 76]
When American superheroes get too shabby, they are sent to Gilles Barbier's "Nursing Home."
The work refers quite straightforwardly to our societies' obsession with eternal youth. Should medical research be geared towards the fight against the loss of youthfulness? Or isn't medicine's most noble mission to provide us with better lives? Will our society ever revert to respecting old age? (HT: WMMNA)
The work refers quite straightforwardly to our societies' obsession with eternal youth. Should medical research be geared towards the fight against the loss of youthfulness? Or isn't medicine's most noble mission to provide us with better lives? Will our society ever revert to respecting old age? (HT: WMMNA)
Jahi McMath - Opposition to Demurrer
Here is some more commentary and analysis, from Friday, July 24, of the latest filings in the Jahi McMath medical malpractice case.
Much of this is focused on the underlying negligence / malpractice and not on the Jahi's status as alive or dead. But some addresses that question.
Much of this is focused on the underlying negligence / malpractice and not on the Jahi's status as alive or dead. But some addresses that question.
Thứ Bảy, 25 tháng 7, 2015
He Can No Longer at the Age of 98 [EOL in Art 75]
Beneath Goya's illustration reads the title: “He Can No Longer at the Age of 98.”
An old man stands alone, accompanied only by his shadow. His bent body caves under some unknown force, and the man tries his best to remain upright by relying on two canes, one held in each hand. Facing to the front left of the paper, the old man appears to be on his way to some destination; his feet are not drawn with any suggestion of movement, however, and so it appears that despite his intentions, the old man cannot accomplish the simple goal of walking.
The vagueness of title's meaning allows the viewer to indulge a multitude of imaginings of what specifically the man can no longer do – he cannot walk, cannot function, cannot survive independently, he cannot do most anything. Drawn and painted without color, Goya’s lonely and impotent old man offers a bleak outlook on severe old age.
The artwork raises powerful questions of how one should deal with the inevitable decline in abilities brought on by old age. How can one age to the point of total frailty yet retain one’s happiness and joie de vivre?
An old man stands alone, accompanied only by his shadow. His bent body caves under some unknown force, and the man tries his best to remain upright by relying on two canes, one held in each hand. Facing to the front left of the paper, the old man appears to be on his way to some destination; his feet are not drawn with any suggestion of movement, however, and so it appears that despite his intentions, the old man cannot accomplish the simple goal of walking.
The vagueness of title's meaning allows the viewer to indulge a multitude of imaginings of what specifically the man can no longer do – he cannot walk, cannot function, cannot survive independently, he cannot do most anything. Drawn and painted without color, Goya’s lonely and impotent old man offers a bleak outlook on severe old age.
The artwork raises powerful questions of how one should deal with the inevitable decline in abilities brought on by old age. How can one age to the point of total frailty yet retain one’s happiness and joie de vivre?
Thứ Sáu, 24 tháng 7, 2015
Hospice Concurrent with Curative Treatment - Medicare Care Choices Model
More than five years after enactment of the ACA, CMS is finally now exploring payment for hospice concurrent with payment for curative treatment.Under current payment rules, Medicare and dual eligible beneficiaries are required to forgo curative care in order to receive services under the Medicare or Medicaid Hospice Benefit.
Through the Medicare Care Choices Model, CMS will provide a new option for Medicare beneficiaries to receive palliative care services from certain hospice providers while concurrently receiving services provided by their curative care providers.
There are 141 hospices participating in the Medicare Care Choices Model. CMS will evaluate whether providing hospice services can improve the quality of life and care received by Medicare beneficiaries, increase patient satisfaction, and reduce Medicare expenditures.
Dead Mother [EOL in Art 74]
Reminiscent of "The Scream," here is Munch's "Dead Mother." With her back turned to her mother who lies in bed, dead, a young girl, eyes wide in disbelief, holds her hands to her ears as if to block out the reality and the stillness. An aura of suspension, incomprehensibility, or unearthly silence begs the question: is she truly calm, or screaming on the inside?
Thứ Năm, 23 tháng 7, 2015
Nevada Brain Death Dispute - Aden Hailu UPDATE
City Hospital [EOL in Art 73]
In 1953 Alice Neel created a series of ink and gouache drawings depicting the last weeks of her mother's life, which were spent in a New York city hospital.
In this drawing, a black nurse comforts a prone elderly lady. The pale hues of the painting--blue, black, white--evoke a somber mood and imply sickness. This sense of despair is augmented by a harsh cityscape background beyond a dark river, which the viewer sees through a window.
Compassion counters these desolate surroundings, however, for a bond is apparent between the nurse and elderly patient. The nurse's hands rest on the patient in a partial cradling gesture, and the trajectory of the lines made by the nurse's arms and hands and the elderly patient's flowing hair establishes a visual and emotional link. The connection between the two figures is supplemented by the thin smiles on both women's faces.
In this drawing, a black nurse comforts a prone elderly lady. The pale hues of the painting--blue, black, white--evoke a somber mood and imply sickness. This sense of despair is augmented by a harsh cityscape background beyond a dark river, which the viewer sees through a window.
Compassion counters these desolate surroundings, however, for a bond is apparent between the nurse and elderly patient. The nurse's hands rest on the patient in a partial cradling gesture, and the trajectory of the lines made by the nurse's arms and hands and the elderly patient's flowing hair establishes a visual and emotional link. The connection between the two figures is supplemented by the thin smiles on both women's faces.
Thứ Tư, 22 tháng 7, 2015
Island of Death [EOL in Art 72]
Bocklin's Island of the Dead invites contemplation on the mystery of what lies beyond death.
The stones and trees make for an interesting comparison – both are symbols of the natural world, the former dead and cold, the latter alive yet silent. The apparent lack of human life on the island is made poignant by the knowledge that once upon a time, the stone ruins must have housed living men. Now, however, like death, the island is an isolated, isolating, and lonesome place. (Project Gutenberg)
The stones and trees make for an interesting comparison – both are symbols of the natural world, the former dead and cold, the latter alive yet silent. The apparent lack of human life on the island is made poignant by the knowledge that once upon a time, the stone ruins must have housed living men. Now, however, like death, the island is an isolated, isolating, and lonesome place. (Project Gutenberg)
Thứ Ba, 21 tháng 7, 2015
Jahi McMath - Now Alive and on Medicaid
On Friday, the family of Jahi McMath filed its opposition to the demurrers of the medical provider defendants. In its brief, the family states two remarkable things: 1. "Plaintiffs allege, and will present proof of changes and developments which show that Jahi's condition is one in which Jahi has brain function and is indeed a living person."
2. "To this date, Jahi continues to receive 24/7 nursing care in New Jersey, pursuant to her eligibility in that state for participation in the New Jersey Medicaid Program."
Intensive Care Room [EOL in Art 71]
Elizabeth Layton - Intensive Care Room
"This is the room where my son died. They had all these tubes...you know, terrible. There was always blood coming down. I couldn't draw the face, so I put the pillow there. They gave him four gallons of blood. I had always given blood and I couldn't wait till I could go again and give for somebody else. They wouldn't take me because I was taking medicine for high blood pressure. I felt so helpless."
"This is the room where my son died. They had all these tubes...you know, terrible. There was always blood coming down. I couldn't draw the face, so I put the pillow there. They gave him four gallons of blood. I had always given blood and I couldn't wait till I could go again and give for somebody else. They wouldn't take me because I was taking medicine for high blood pressure. I felt so helpless."
Thứ Hai, 20 tháng 7, 2015
EMTs Misinterpret POLST Forms
A new study in ED Management, finds that emergency providers lack consensus on what action to take when they have Physicians Orders for Life Sustaining Treatment (POLST) forms.
In a continuing line of research by Ferdinando Mirarchi (medical director of the Department of Emergency Medicine at the University of Pittsburgh Medical Center Hamot in Erie, PA).
In a survey of emergency physicians and pre-hospital providers, responders were given scenarios in which the patient had a POLST. The providers were then asked to decide what to do. Unfortunately, providers often know that the form exists but fail to read it, making assumptions about what it says. For example, DNR orders are equated with "do not treat" orders.
The outcomes of the study prompted the team to suggest that clinicians use a checklist built on the letters A, B, C, D, and E:
The researches suggest that hospitals establish quality control procedures to ensure that end-of-life-care documents are prepared and interpreted accurately.
In a continuing line of research by Ferdinando Mirarchi (medical director of the Department of Emergency Medicine at the University of Pittsburgh Medical Center Hamot in Erie, PA).
In a survey of emergency physicians and pre-hospital providers, responders were given scenarios in which the patient had a POLST. The providers were then asked to decide what to do. Unfortunately, providers often know that the form exists but fail to read it, making assumptions about what it says. For example, DNR orders are equated with "do not treat" orders.
The outcomes of the study prompted the team to suggest that clinicians use a checklist built on the letters A, B, C, D, and E:
- A = Ask patients and surrogates to clarify their intentions about DNRs, POLST and other end-of-life planning documents.
- B = Be clear about the status of the patient, including terminal or critical illness “that can be treated.”
- C = Communicate with the patient about prognosis and expected outcomes.
- D = Design plans for care and review the steps in the plan.
- E = Explain about hospice and palliative care, and let patients know that treatment choices are up to them, and that their wishes will be honored.
The researches suggest that hospitals establish quality control procedures to ensure that end-of-life-care documents are prepared and interpreted accurately.
Tender Loving Care [EOL in Art 70]
Elizabeth Layton - TENDER LOVING CARE
“Not everyone is caught up in technology. Legal, financial, ethical puzzles engulf us. We have the answers - the procedures, the tubes, the machines, the know-how. When do we stop to open the envelopes and address the questions? What can we handle? How much technology can we live with? Is another Challenger exploding in our faces? Can we change so drastically in these few decades? For ages, man has struggled to accept death. In the traditional way of dying, we spoon-fed a little ice, not enough to sustain life but sufficient to comfort the body and nourish the soul. Sheets, clean and straightened, shelter a cherished privacy.”
“Not everyone is caught up in technology. Legal, financial, ethical puzzles engulf us. We have the answers - the procedures, the tubes, the machines, the know-how. When do we stop to open the envelopes and address the questions? What can we handle? How much technology can we live with? Is another Challenger exploding in our faces? Can we change so drastically in these few decades? For ages, man has struggled to accept death. In the traditional way of dying, we spoon-fed a little ice, not enough to sustain life but sufficient to comfort the body and nourish the soul. Sheets, clean and straightened, shelter a cherished privacy.”
Chủ Nhật, 19 tháng 7, 2015
Margot Bentley, Advance VSED, and Ulysses Contracts
My new article on the Margot Bentley case is now online first in the Journal of Bioethical Inquiry.I summarize the case and assess the legality of advance VSED through Ulysses contracts.
Pulling the Plug [EOL in Art 69]
Elizabeth Layton - PULLING THE PLUG - 1987
“Symbolic of the many means of keeping a body functioning. Restraint is a necessity. She has wasted minutes, hours, months. Would she want to add all that wasted time to this very end?”
“Symbolic of the many means of keeping a body functioning. Restraint is a necessity. She has wasted minutes, hours, months. Would she want to add all that wasted time to this very end?”
Thứ Bảy, 18 tháng 7, 2015
The Courtroom [EOL in Art 68]
Elizabeth Layton - THE COURTROOM - 1990
“The sign on the door to the courtroom says, KEEP OUT. The doctors, nurses, and family are not allowed in. The comatose patient on the consultation table has a funnel leading directly into her stomach. Black-robed Justices pour in nutritious foods - artificial grapes, fish, oats, peanut butter, pure H2O, 7-Up. The 25-watt light bulb symbolizes the dim illumination perfect strangers might have on the case.”
“The sign on the door to the courtroom says, KEEP OUT. The doctors, nurses, and family are not allowed in. The comatose patient on the consultation table has a funnel leading directly into her stomach. Black-robed Justices pour in nutritious foods - artificial grapes, fish, oats, peanut butter, pure H2O, 7-Up. The 25-watt light bulb symbolizes the dim illumination perfect strangers might have on the case.”
Jahi McMath Family Still Denies She Is Dead
In ongoing medical malpractice litigation over the treatment of Jahi McMath, the healthcare defendants have inferred (from the complaint) that the McMath family contends she is still alive.
In their Case Management Statement filed a few days ago, the family confirmed that they are making this contention. In providing a statement of the case, they write:
Can this question be re-litigated? If so, can plaintiffs actually prove what they contend? If so, this would be the first case EVER in which a patient CORRECTLY diagnosed as dead is no longer dead.
In their Case Management Statement filed a few days ago, the family confirmed that they are making this contention. In providing a statement of the case, they write:
"Jahi finally coded and her heart stopped. Defendants contend she was pronounced clinically brain dead. Plaintiffs contend Jahi suffered severe brain damage but does not currently meet the definition of clinical brain death."
Can this question be re-litigated? If so, can plaintiffs actually prove what they contend? If so, this would be the first case EVER in which a patient CORRECTLY diagnosed as dead is no longer dead.
Thứ Sáu, 17 tháng 7, 2015
Revolutionary Change for Life's Final Choices Would Reduce Unwanted Care
This new article in Modern Healthcare provides a nice overview of major advance care planning developments: - Bud Hammes program at Gunderson Lutheran
- Pat Bomba's program at Excellus Blue Cross
- New Medicare coverage rules
Who Was All Becomes Nobody [EOL in Art 67]
My series of "end-of-life in art" has depicted death from many past centuries. Here is a more modern depiction from Pasha 183's street art.
Thứ Năm, 16 tháng 7, 2015
Art about Death Makes People Think [EOL in Art 66]
In the "Seventh Seal" Ingmar Bergman references memento mori through the church painter who seems preoccupied with painting "reminders of death."
When asked about his fixation on painting morbid subject matter, the church painter explains that he makes art about death "to make people think" and claims, "A skull is more interesting than a naked woman."
When asked about his fixation on painting morbid subject matter, the church painter explains that he makes art about death "to make people think" and claims, "A skull is more interesting than a naked woman."
Ned Cassem and the MGH Optimum Care Committee
Ned Cassem died earlier this month. Back in 1973, he set up the Massachusetts General Hospital Optimum Care Committee, one of the first ethics consultation committees in North America. He led the committee for 34 years. Today the committee invites consults on cases such as:
- "A patient is approaching end of life, and the family does not seem to understand this. Usual measures of trying to assist the family have failed."
- "A patient has had a procedure, and does not seem to be recovering. As a clinician, you believe that all signs point to end of life. Others on the team do not agree with you/others. Usual measures of team discussion are not working."
Thứ Tư, 15 tháng 7, 2015
Awareness & Preparedness for Death [EOL in Art 65]
Ingmar Bergman's the "Seventh Seal" depicts a knight returning from the crusades during the plague. At this time (1300-1400s), everyone is VERY aware of death. With 1/3 of the population killed, Europe feels powerless. Sort of the opposite of 21st century America.
Way More Patients Now Getting "All Care Possible"
 |
| Amol Narang |
The proportion of patients getting "all care possible" during end of life rose more than 7-fold over the period from 2000 through 2012.
- "Trends in Advance Care Planning in Patients With Cancer: Results From a National Longitudinal Survey," new in JAMA Oncology, along with an audio interview.
Thứ Ba, 14 tháng 7, 2015
New York State Surrogate Decision Making Committee - Protecting Unrepresented Patients
Only a few states have developed mechanisms to authorize medical decisions on behalf of incapacitated unrepresented patients. California's was recently struck down as unconstitutional. In contrast, one of New York's mechanisms is expanding, The Justice Center for the Protection of People with Special Needs administers the Surrogate Decision-Making Committee (SDMC) program for New York State. The SDMC program obtains informed consent for non-emergency major medical care procedures and in some cases end-of-life decision making by or on behalf of persons with mental disabilities, living in State-operated or State-licensed mental hygiene residential programs, who have no legal surrogates.
The Justice Center just published a Request for Proposals to establish contracts that will cover the five-year period November 1, 2015 through October 31, 2020 to provide SDMC administrative support services for various regions across New York.
Dr. Byrne Examining Jahi Mcmath [EOL in Art 64]
While legally settled, the conceptual and biological soundness of the neurological determination of death is increasingly the subject of a serious debate among informed scholars and clinicians.
Still, when Dr. Paul Byrne says that Jahi Mcmath is not dead, many think that this cartoon might be apt. (Please see the great collection of other clever cartoons at Off the Mark.)
Still, when Dr. Paul Byrne says that Jahi Mcmath is not dead, many think that this cartoon might be apt. (Please see the great collection of other clever cartoons at Off the Mark.)
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