New Case: Zody Cervantes v. Rady Children's Hospital

San Diego has long been a center for innovation in the resolution
of medical futility disputes.  While not all hospitals in the area have signed
onto proposed community-wide guidelines, several did.  One manifestation
of the enforcement of that policy is now playing out at Rady Children's Hospital.

Zody Cervantes has serious widespread brain damage probably due to meningitis.  Physicians told Zody's mom:  "We're 99 percent sure he's never going to have any
quality of life."  Physicians told her that they do not want to
prolong his suffering and plan to remove him from the ventilator on July 6.

Zody's mom says she is planning to fight the hospital's decision,
becaue she has seen signs of improvement.  She is also contacting other children's hospitals across the state to see if
Zody can be transferred before July 6.  (Channel 10 San Diego)

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The Hospice Nurse

PalliMed has an interesting discussion over
the appropriateness of this portrayal of the hospice nurse.

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Withdrawal of Treatment against the Consent of Substitute Decision-Makers

The Supreme Court of British Columbia's opinion in Carter v. Canada is a masterful and thorough review of the medicine, law, and ethics of hastened death.  Justice Smith even devotes five paragraphs to the law of medical futility.



VII.  Medical Ethics and Medical End-of-Life Practices . . .

C.  Current State of the Law and Practice in Canada . . .

3.  The Law . . .

d.  Withdrawal of Treatment against the Consent of Substitute Decision Makers



[227] The law makes clear that consent is a sufficient condition for the withdrawal

or withholding of treatment. But is consent also a necessary condition? Whether a

physician or hospital can legally withhold or withdraw potentially life-sustaining

treatment without the consent of either the patient or the patient.s substituted

decision-maker, is currently under much debate.



[228] In some decisions, Canadian courts have held that it is not appropriate for a

court to interfere with medical practitioners acting unilaterally in the best interests of

a patient: for example, Child and Family Services of Manitoba v. R.L. (1997), 154

D.L.R. (4th) 409 (Man. C.A.); and Re: I.H.V. Estate, 2008 ABQB 250.



[229] More commonly, however, courts faced with such issues have concluded that

the law in Canada is not settled: for example, Sawatzky v. Riverview Health Centre

Inc. (1998), 167 D.L.R. (4th) 359 (Man. Q.B.); Jin v. Calgary Health Region, 2007

ABQB 593; Golubchuk v. Salvation Army Grace General Hospital, 2008 MBQB 49;

and Rotaru v. Vancouver General Hospital Intensive Care Unit, 2008 BCSC 318.



[230] The question whether a patient.s family can require maintenance of lifesustaining

treatment against medical advice is central in a case to be heard in the

Supreme Court of Canada, Rasouli v. Sunnybrook Health Sciences Centre, 2011

ONCA 482 (leave to appeal to S.C.C. granted, [2011] S.C.C.A. No. 329).



[231] . . . (d) It is unclear whether a patient's substituted decision maker can require

the maintenance of life-sustaining treatment against medical advice.

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New Film: "A Good Death"

The film “A Good Death” is for patients with COPD or other serious lung conditions, their families, and the doctors and nurses who provide care for them. It is not an easy film to watch, because it describes the struggles of a real patient, Mr. Martin Cavanagh, and his family during the last months of his life. If you are living alone, it may be best to invite a family member or friend to watch it with you.




The film is designed to introduce the concept of ADVANCE CARE PLANNING. It is meant to prompt meaningful discussion and helpful planning for future care for patients whose respiratory illness is leading them to the end of life. It is about making thoughtful choices. If you are a patient, you may find this challenging or even upsetting at first. But experience tells us that these understandable reactions give way to genuine appreciation and satisfaction because sensitive issues have been brought out into the open and addressed.





A Good Death from PRN Films on Vimeo.

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Health Care Reform and Health Care Stakeholder Disputes: Can We Identify Common Ground?

I will be speaking at Health Care Reform and Health Care Stakeholder Disputes: Can We Identify Common Ground? on Friday, October 12, 2012 at Marquette University.  Here is the tentative agenda:



8:30 - 9:20 a.m.       PLENARY

Moderator - Professor Howard Bellman, J.D., LL.M., Marquette University Graduate Program in Dispute Resolution, Distinguished Adjunct Professor

Panelists:

Dr. Arthur Derse, MD, J.D., Institute for Health and Society Medical College of Wisconsin, Director, Center for Bioethics and Medical Humanities Director, Medical Humanities Program, Julia and David Uihlein Professor of Medical Humanities and Professor of Bioethics and Emergency Medicine

Dr. Howard Gadlin, Ph.D., National Institutes of Health, Ombudsman and Director of the Center for Cooperative Resolution

Professor Kathleen Lanava, BSN, RN, CPHRM, University of Michigan Health System, Manager Risk Management Department

Dr.  Thaddeus Pope, J.D., Ph.D., Hamline University School of Law, Health Law Institute, Director and Albany Medical College, Adjunct Professor



9:45 - 10:45 a.m.

The Patient/ Healthcare Provider Relationship.  When is the relationship broken?

Moderator - Professor Christine Harris Taylor, J.D., LL.M., Marquette University Graduate Program in Dispute Resolution and Center for Dispute Resolution Education, Associate Director and Associate Professor Graduate Program in Dispute Resolution

Panelists:

Dr. Arthur Derse, MD, J.D., Institute for Health and Society Medical College of Wisconsin, Director, Center for Bioethics and Medical Humanities Director, Medical Humanities Program Julia and David Uihlein Professor of Medical Humanities and Professor of Bioethics and Emergency Medicine

Dr. Thaddeus Pope, J.D., Ph.D, Hamline University School of Law , Health Law Institute, Director and Albany Medical College, Adjunct Professor

10:45 - 11:00 a.m.       BREAK



11:00 a.m. - Noon      

Health Care Systems and Health Care Provider Disputes:  Can we work together? 

Moderator - Professor Eva M. Soeka J.D.,  Marquette University Graduate Program in Dispute Resolution and Center for Dispute Resolution Education, Director and Associate Professor of Law

Panelists:

Professor Kathleen Lanava, BSN, RN, CPHRM, University of Michigan Health System, Manager Risk Management Department

Gail Buenger, J.D., Aurora Health Care Project Management Services, Vice President

Dr.  Paul Bernstein, MD, J.D., Aurora St Luke’s Medical Center, Cardiovascular Diseases

Dr.  Andrew Petroll, MD, MS, Medical College of Wisconsin, Assistant Professor, Infectious Diseases



12:00 - 1:30 p.m.       LUNCHEON

Speaker - Dr. Howard Gadlin, Ph.D., National Institutes of Health, Ombudsman and Director of the Center for Cooperative Resolution



1:30 - 2:30 p.m.         

Patient/Insurer Disputes:  What does my policy cover? 

Moderator - Brian Wroblewski, MBA, Director of Provider Management, Assurant Health 

Panelists:

Common Ground Insurance Coop Representative

Sean Dilweg, former Insurance Commissioner, State of Wisconsin        



2:45 - 4:00 p.m.         

Bio Ethics Disputes:  Lifestyles and End of Life Issues

Moderator - Professor Kevin Gibson, Ph.D., Marquette University Department of Philosophy, Associate Professor and Director of Graduate Studies

Panelists:

Mathew Pauley, J.D., MA, MDR, Kaiser Permanente Fontana & Ontario Vineyard Medical Centers, Director, Medical Bioethics

Dr. Mark Repenshek, Ph.D. Columbia-St. Mary’s Medical Center, Healthcare Ethicist                      

Professor Lisa Andersen-Shaw, DrPH, MA, MSN, University of Illinois Medical Center, Director, Clinical Ethics Consult Service, Assistant Clinical Professor

Ron Brenner, M.B.H.A., Lieberman Center for Health and Rehabilitation, Executive Director and Senior Nursing Advisor

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Clinicians Hasten Death of even Non-Terminal Patients

The Liverpool Care Pathway is an integrated care pathway that is used at the bedside to improve the quality of the dying in the last hours and days of life.  It is a means to transfer the best quality for care of the dying from the hospice movement into other clinical areas, so that wherever the person is dying there can be an equitable model of care.




But Professor Patrick Pullicino charges that the clinicians use the pathway even when there is a lack of clear evidence for initiating it.  Dr. Pullicino told the Royal Society of Medicine: "Very likely many elderly patients who could live substantially longer are being killed by the LCP. Patients are frequently put on the pathway without a proper analysis of their condition."  




The Department of Health responded: "A patient's condition is monitored at least every four hours and if a patient improves, they are taken off the Liverpool Care Pathway and given whatever treatments best suit their new needs."

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Legal Briefing: The Unbefriended: Making Healthcare Decisions for Patients Without Surrogates

The second part of my article "Legal Briefing: The Unbefriended: Making Healthcare Decisions for Patients Without Surrogates" was just published in The Journal of Clinical Ethics 23(2): 177-12.  Here is the abstract:

This issue’s “Legal Briefing” column continues coverage of recent legal developments involving medical decision making for unbefriended patients. These patients have neither decision-making capacity nor a reasonably available surrogate to make healthcare decisions on their behalf. This topic has been the subject of recent articles in JCE. It has been the subject of major policy reports. Indeed, caring for the unbefriended has even been described as the “single greatest category of problems” encountered in bioethics consultation. Moreover, the scope of the problem continues to expand, especially with rapid growth in the elderly population and with an increased prevalence of dementia.

Unfortunately, most U.S. jurisdictions have failed to adopt effective healthcare decision-making systems or procedures for the unbefriended. “Existing mechanisms to address the issue of decision making for the unbefriended are scant and not uniform.” Most providers are “muddling through on an ad hoc basis.” Still, over the past several months, a number of state legislatures have finally addressed the issue. These developments and a survey of the current landscape are grouped into the following 14 categories. The first two categories define the problem of medical decision making for the unbefriended. The remaining 12 describe different solutions to the problem. The first six categories were covered in Part 1 of this article; the last eight categories are covered in this issue (Part 2).

1.   Who are the unbefriended?  2. Risks and problems of the unbefriended  3. Prevention: advance care planning, diligent searching, and careful capacity assessment  4. Decision-making mechanisms and standards  5. Emergency exception to informed consent  6. Expanded default surrogate lists: close friends  7. Private guardians  8. Volunteer guardians  9. Public guardians  10.  Temporary and emergency guardians  11. Attending physicians  12.  Other clinicians, individuals, and entities  13. Institutional committees  14. External committees 

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