Resolving Intractable Medical Futility Disputes in Virginia

Over six years ago, I analyzed how an intractable futility dispute might be resolved under Virginia law. Earlier this month, I explained that Virginia is considering legislation to strengthen the governing law.

Today, the bill's author explains his objective.  "Del. Chris Stolle, a Virginia Beach Republican who is a doctor, was approached by other doctors to clarify state law to say a physician has the right to stop care that's medically and ethically inappropriate over the objections of the patient, family or advocate after a 14-day period of trying to transfer the patient to a doctor or hospital who will provide such care."

"Currently, the law says a doctor must try to find other care during that period but leaves hanging what can be done once the time comes to a close."  Stolle explained: "There needs to be some closing of the loophole."

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Bad Healthcare Surrogates Kill Patient for the Money - Victorino Noval

Three years ago, I blogged about the Victorino Noval case.  The case (actually multiple cases) are still being litigated.  An appellate decision issued a few days ago summarizes the key alleged facts.  



Three siblings, Lourdes, Tania, and Victor, allegedly directed a hospital to take their father, Victorino Noval, off life support and administer fatal doses of morphine, without the consent of their brother, Hector Noval (Hector), whose permission was required under a durable power of attorney for healthcare. Lourdes, Tania, and Victor also allegedly absconded with cash and other personal property of Victorino while he was hospitalized.


"Decedent was a fully functioning 78-year-old with about $60 million in assets and $3 million in annual income. On April 28, 2010, decedent was admitted to the hospital with pneumonia. He was intubated and, when sedated, became temporarily incapable of making his own medical decisions. By the end of the 10-day hospitalization, decedent had overcome the pneumonia, had had his intubation removed, had become distress free, and could make 'eye contact for more than 10 seconds.'"


"Nonetheless, Lourdes, Tania, and Victor ordered hospital staff to terminate decedent’s treatment and administer fatal doses of morphine on May 7, 2010, causing his death that day. The only reason the threesome so directed hospital staff was to hasten decedent’s death and collect their inheritances."



"According to Hector, decedent had a durable power of attorney for health care (health care power) that named Hector and Lourdes as joint attorneys-in-fact, such that the unanimous consent of the two of them was required for action to be taken. However, Lourdes, Tania and Victor falsely represented to hospital staff that Hector concurred in their decision to end decedent’s life, and concealed the existence of the health care power from Hector himself. Furthermore, at the same time that they directed hospital staff to withdraw decedent’s treatment and end his life, they misrepresented to Hector that decedent’s treatment would be continued indefinitely."


"Lourdes, Tania and Victor met with hospital staff on May 4 and 5, 2010 and represented that the whole family, Hector included, 'desired terminal extubation for decedent.' They also represented to hospital staff, on May 5 and 6, 2010, that Hector 'was a violent person, a drug addict, someone with paranoid personality,' who had 'threatened violence’ against them . . . and that they were afraid of him.' Hector further alleged that his siblings had represented to hospital staff that he had ulterior motives and was unfit to make health care decisions for decedent."


"Lourdes, Tania and Victor met with hospital staff on May 7, 2010 for 'the planned withdrawal of decedent’s treatment and fatal injections or morphine[.]' Even though they were informed that decedent was improving, they declined 'the opportunity to . . . cancel decedent’s planned death[.]'  Moreover, they again falsely informed hospital staff that Hector was in favor of the plan, and said he simply elected not to be present. To the contrary, Hector was not even aware of the plan. Hospital staff removed the ventilator, withdrew oxygen support, removed the nutritional tubes, and administered fatal doses of morphine. According to Hector, decedent would have lived absent these acts."

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Oklahoma Medical Treatment Laws Information Act - The Disclosures

Last year, I blogged about the 2014 Oklahoma  Medical Treatment Laws Information Act.  



This law was enacted to educate clinicians about their duties, and patients about their rights, under the 2013 Oklahoma Nondiscrimination in Treatment Act.



The law went into effect on January 1, 2015.  Accordingly, the state Medical Board has posted disclosures (for clinicians and for patients) that hospitals must provide to the same extent they must make disclosures under the Patient Self Determination Act.  

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Texas Advance Directives Act - 2015 Legislative Session

The 2015 legislative session (the 84th) in Texas has just begun and some are getting ready to again tackle the Advance Directives Act.



TADA was last amended in 2003.  Multiple bills were advanced in 2007, 2009, 2011, and 2013.  But none were enacted.  Get ready for round five.    



In the January 2015 issue of TEXAS MEDICINE:  "In anticipation of another round of debates over end-of-life care, TMA's workgroup dedicated to the issue will work to protect physicians' ability to do what's best for patients in their final days."



Defending TADA is part of the Texas Medical Association's strategic roadmap for state advocacy initiatives, Healthy Vision 2020 (2d ed.).

"Legislation has been introduced over the past four legislative sessions that would instead require indefinite treatment with no provision for the physician exercising ethics or moral judgment. TMA has opposed these proposals because they would prolong unnecessary — and often painful or even torturous — care that cannot prevent but can only prolong death. They would also require physicians, nurses, and other health care professionals to provide medically inappropriate care, even if that care violates medical ethics or the standard of care. They also would set a dangerous precedent for the legislature to mandate the provision of physician services and treatments that may be medically inappropriate, outside the standard of care, or unethical."

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Medical Benefit Is ALWAYS Patient Determined

The value or benefit of any medical intervention can be assessed on two dimensions.  First, the intervention can be assessed physiologically (e.g. does it restore function to an organ).  Second, the intervention can be assessed subjectively from the patient's values and preferences.



Established legal and ethical principles hold that the patient's subjective assessment controls.  For example, while a blood transfusion may provide a physiological benefit, it is not a benefit (but actually a harm) to a patient who refuses it for religious reasons.  



But this principle is far more controversial when applied in the opposite situation in which there is no physiological benefit but there is subjective value.  Can we really say that continued physiological support after the determination of death by neurological criteria provides no benefit.  It may provide no physiological benefit.  But if subjective assessment of value and benefit controls, then continued physiological support does confer a benefit.

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New Mexico Court of Appeals to Hear Aid in Dying Case

In January 2014, a New Mexico trial court  ruled that patients have a fundamental right to aid in dying under the state constitution.



This afternoon, the New Mexico Court of Appeals will hear oral arguments in the case, captioned as

KATHERINE MORRIS, M.D., AROOP MANGALIK, M.D., and AJA RIGGS, Plaintiffs-Appellees

vs.

KARI BRANDENBURG, in her official capacity as District Attorney for Bernalillo County, New Mexico, and GARY KING, in his official capacity as Attorney General of the State of New Mexico, Defendants-Appellants

A number of amici are also involved:

• Attorneys for Disability Rights


• ALS Association NM Chapter


• NM Psychological Association


• American Medical Women’s Association


• American Medical Students Association


• NM Public Health Association

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5th International Conference on Advance Care Planning and End-of-Life Care (ACPEL)

The 5th International Conference on Advance Care Planning and End-of-Life Care (ACPEL) will be held from 9 to 12 September 2015 in Munich, Germany.  The Call for Abstracts is open until 15 Feb 2015.



Already booked sessions include:

• Does the plan actually represent what the patient wanted? - Susan Hickman, Respecting Choices


• ACP in Palliative Care Evaluation of implementation - Rebecca Sudore, UCSF School of Medicine, San Francisco


• Setting the agenda for the next two years - Sara Davison, Dpt of Nephrology, University of Alberta


• What do we know about the economic case? - Josie Dixon, LSE London, GB


• Nationwide adoption of an ACP program by a large U.S. health provider (HMO) - Daniel Johnson, Kaiser Permanente


• Facilitator Training and (Re-)Certification - Bud Hammes, Respecting Choices, La Crosse

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