Elder Abuse Damages Capped at $500

In California, a violation of the Patient's Bill of Rights carries a penalty of just $500.  Seem low?  Well, that's not all.



A new appellate opinion, Nevarrez v. San Marino Skilled Nursing, confirms that "$500 is the maximum that can be recovered in a civil action under this provision, regardless of how many rights are violated or whether such rights are violated repeatedly."  



Yes, a resident can still sue for tort damages.  But the extremely low civil penalties amount sends a very bad symbolic message.

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POLST Vocabulary - A Summary

Last year, I published a reasonably comprehensive review of how POLST is being adopted across the country.  I observed that "while the POLST paradigm is established or developing in almost every U.S. state, it goes by at least 14 different names."  That number is now at least 15.  



Like variation in form color (pink, green, yellow), this variation in terminology is not material.  But it is important to remember that even with different names, most of these programs share the same paradigm.  



POLST stands for three different terms. 

1. In most of the states, POLST stands for physician orders for life-sustaining treatment.  


2. In Minnesota and Montana, POLST stands for provider orders for life-sustaining treatment.  


3. In Pennsylvania, POLST stands for Pennsylvania orders for life-sustaining treatment.  


4. And in New Jersey, it stands for Practitioner orders for life-sustaining treatment.

The remaining states use 11 additional acronyms.  Two are similar to POLST:

1. Vermont uses COLST (clinical orders for life-sustaining treatment).


2. Delaware, Maryland, Massachusetts, New York, Ohio, and Rhode Island use MOLST (medical orders for life-sustaining treatment).

Four other acronyms focus on scope of treatment

rather than on life-sustaining treatment:

1. Idaho, Indiana, South Carolina, Tennessee, Virginia, and West Virginia use POST (physician orders for scope of treatment).


2. Louisiana uses LaPOST (Louisiana physician order for scope of treatment).


3. Alaska, Colorado, Kentucky, New Mexico, and North Carolina use MOST (medical orders for scope of treatment).


4. Iowa uses IPOST (Iowa physician orders for scope of treatment).


5. Nevada uses SMOST (summary of physician orders for scope of treatment).

Four final acronyms are far more different:

1. Kansas and Missouri use TPOPP (transportable physician order for patient preference).


2. Utah calls its POLST a death with dignity order.


3. Illinois legislated that POLST “may be referred to” as the department of public health uniform DNR advance directive.


4. The Veterans Health Administration refers to POLST as SAPO (state authorized portable orders).

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New York State Justice Center for the Protection of People with Special Needs

This week, an impressive new state agency opened for business:  the New York State Justice Center for the Protection of People with Special Needs.  



Last year, New York enacted new legislation establishing the Justice Center to provide tough oversight and transparency for those facilities across the state responsible for the care of special needs individuals.  The Center also has a substantial infrastructure designed to prevent neglect and abuse. And it  implements quite a few other protections and improvements.  



One accomplishment that caught my eye is dramatically improved clarity regarding the operation of the Surrogate Decision Making Committee.  The SDMC had already been in operation for years and is now part of the Justice Center.  The SDMC is one of the best designed mechanisms in the country for making medical decisions for the unbefriended or incapacitated patients, those with no available surrogates.  It looks like oversight by the Justice Center will make the SDMC even better.

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IOM to Tackle POLST

Later this month, the IOM Committee on Approaching Death: Addressing Key End of Life Issues will hold its third meeting in Houston.  



The agenda includes sessions on (1) clinical ethics, (2) addressing spiritual and religious issues, and (3) empirical and legal issues regarding POLST.  Here is the description of the POLST session.



Critical overview of empirical evidence regarding the impact of POLST on clinical care and

outcomes. Does POLST lead to fewer days in the Intensive Care Unit in the last week of life,

CPR before death, etc.? Do states that have robust POLST programs have different levels of

specific medical interventions in end-of-life care? Does POLST reduce disputes regarding end-of-life decisions? Does POLST prevent complicated grieving by survivors or decision regret?

Susan E. Hickman, PhD

Associate Professor, Indiana University School of Nursing

Co-Director, RESPECT Signature Center, IUPUI

Senior Affiliate, IU Health Fairbanks Center for Medical Ethics



Challenges and limitations in advance care planning and POLST, with particular attention to

vulnerable patients. The importance of conversations in advance care planning as well as

documentation of orders and the challenges in improving these conversations.

Rebecca Sudore, MD

Associate Professor of Medicine

University of California, San Francisco



What legal issues might present challenges to a patient and family who wish to use the POLST

form or other types of advance care planning? May a surrogate complete a POLST for a patient

who has already lost decision-making capacity? Are there restrictions on using POLST to

decline feeding tubes in patients with severe dementia or stroke? Are these limitations

communicated effectively to patients and families using POLST? Have there been cases

involving POLST in the courts? What other legal approaches to advance care planning have

states implemented, such as default priority for surrogates and oral appointment of health care

proxies, and how have they worked in practice?

Alan Meisel, JD 

Director, Center for Bioethics and Health Law

Dickie, McCamey and Chilcote Professor of Bioethics, and Professor of Law and 

Psychiatry

University of Pittsburgh

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Medical Humanities Conference - RFP

Western Michigan University is soliciting abstracts for its Medical Humanities Conference through July 15, 2013.

  

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Presumed Consent - Wales & Organ Donation

The Welsh government has adopted a system of presumed consent for donating organs after death.  (Independent / Guardian)  The opt-out system, which will be introduced in 2015, means that everyone is regarded as a willing donor when they die unless they state otherwise.




U.S. policymakers really need to follow this model and focus more on flipping the defaults with respects to many aspects of end-of-life care.  Since most people fail to opt out of the default, the default rule should maximize benefit.  But currently, our defaults (e.g. aggressive curative focused treatment) are not what most people want.  Therefore, we have a high error rate in that many people do not get the treatment they want.  



Following Wales, we would do better to make the default what most people want and/or what maximizes social welfare.  Yes, that might produce some false negatives (inferring no desire for life-sustaining treatment from the patient's failure to opt out).  But it would eliminate far, far more false positives (assuming the patient's desire for life-sustaining treatment when there really is no such desire).

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National Aging & Law Institute

NAELA's National Aging and Law Institute' will be in Washington, DC from November 7-9, 2013.  The following two sessions on medical issues are of interest.



Health Care Decision-Making and HIPAA Privacy Barriers: How to Avoid and Solve Problems     

"Health care agents and family members of patients sometimes run into HIPAA problems, such as, “I can’t talk to you because of HIPAA.”  Learn the myths and facts of HIPAA; how to prevent and solve problems, and resources you can draw upon."

• Charles P. Sabatino, ABA Commission on Law and Aging


• Rachel Seeger, MA, MPA, HHS


• Elizabethanne Miller Angevine, Esq.


• Dr. Katalin Eve Roth, J.D. M.D. F.A.C.P.

Transformation of Chronic and End-of-Life Care: What It Means for You and Your Clients

This session will address cutting edge models and techniques being used to ensure patients and families get the advance care they need. Participants will hear and dialogue on what tools (advanced directives, POLST) are available for clients and how to ensure they are carried out as requested. The panel will also address the federal political and policy environment for protecting patients from unwanted care.  

• Ashley Carson Cottingham, Compassion & Choices


• Andrew MacPherson, Coalition to Transform Advanced Care (C-TAC)


• Dr. Brad Stuart, MD, Chief Medical Officer, Sutter Care at Home


• Moderator: Kate Mewhinney

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