Cruel Over-treatment of the Elderly

Edwin Leap has a compelling post at KevinMD and at Taki's Magazine on how we provide too much aggressive care to the elderly -- often for legally defensive reasons.

Largely because the government refuses to address tort reform, elderly patients’ frail bodies and hazy minds are endlessly subjected to tests and therapies that add little enjoyment to their lives and probably less to meaningfully extending those lives.

New Blog: Journal of Palliative Medicine Blog

The publishers of the Journal of Palliative Medicine have just launched a new blog that will enable them to distribute educational and research information allow more opportunity to connect with their readers on an ongoing basis. 

Oncologists Argue for Limits on Chemotherapy

Virginia oncologists Smith and Hillner argue doctors should aggressively tackle cancer to the best of their ability using the best treatments available, but after all realistic options are exhausted, they should encourage patients to set realistic goals for their future.

50 Fascinating Aging Facts for Older Americans Month

Aging is an inevitable part of living, and can be fascinating for people of any age.  Lives change, minds and bodies change, and time goes on.  Here is an interesting look at 50 interesting facts about aging in honor of Older Americans Month.  

Texas Votes for Interim Study of Its "Futile Treatment" Law

Chuck Lindell at the Austin American Statesman reports that the Texas House of Representatives voted to mandate/authorize an interim study on section 166.046 of the Texas Advance Directives Act.  There was some activity on the House floor until after midnight (after Lindell posted his story) that I have not had a chance to view.  So, I am not yet sure about the final status/language.

TV Portrayal - Hospital Asks for Advance Directive and Follows It

On the May 17th broadcast of The Young and the Restless (episode 9652), a character is in a coma dependent upon a ventilator.  The hospital asks about the existence/location of the patient's advance directive.  The patient's lawyer comes to the hospital with the advance directive and conveys that the patient did not want extraordinary measures.  The hospital then disconnects the ventilator in accordance with the advance directive -- even over the objections of the patient's mother and fiance.  Sadly, this is probably not a terribly accurate portrayal of what happens in U.S. hospitals.  But it is good to see television portraying: (a) the limits of medicine, (b) the use of advance directives, and (c) the proper implementation of advance directives.

Amendments to TADA Are Dead

Emily Ramshaw, reporting for the Texas Tribune, reports that "legislation covering end-of-life care in Texas appears, well, dead"  Rep. Bryan Hughes confirmed that none of the standalone "treat to transfer" bills to prevent hospitals from withdrawing treatment for dying patients have a shot.



Hughes and some other conservative lawmakers want doctors and hospitals to continue treating terminal patients as long as they or their families want — or until they can find another medical facility that will.  Hughes stated:  "As time has passed, more and more families have come forward and told us their horror stories of how they were treated, how their loved ones were treated in this process."  "We’re very thankful that most hospitals and most doctors are not abusing the law, but some are. And real people are being affected." 

Delaware MOLST -- 1 week left to submit comments

Reminder:   comments on the proposed Delaware MOLST regulations must be submitted by May 31, 2011.

  

Rasouli - Opportunity to Carve out PVS with Bright Lines

After reading the physician/appellant brief in Rasouli, it struck me that they were asking for far too much judicial deference.  The physicians are asking for permission to unilaterally withdraw (without consent) life-sustaining treatment when they determine (all by themselves) that it would provide no benefit.  The process (described on p.10 of their factum) does not even include ethics committee review.  It certainly seems as though the EPC brief was correct to point out the real lack of due process and safeguards.  

But on further reflection, I think that the physicians/appellants’ proposal is reasonable if it is limited to the facts of the case.  In other words, their position seems reasonable if stated as follows "When we determine with a high level of medical certainty that a patient is PVS, then we can stop treatment without consent."  In that situation, the internal processes are purely medical and value-free.  Second opinions and the opportunity for independent opinions are sufficient.  The typically controversial judgment about the benefit or worthwhileness of medical intervention need not be addressed on a case-by-case basis with respect to a patient in PVS.  The court might announce an ex ante rule (which would be well-supported by the literature) that patients in PVS cannot benefit.  In sum, the court might give providers permission to unilaterally withhold or withdraw treatment from patients who are in PVS.  

   

The Growing Power of Hospital Ethics Committees

I just learned, while staying at the ultra-comfortable Encore in Las Vegas (room view shown), that my panel (with Anita Tarzian and Jeffrey Berger) assessing the growing power of ethics committees will be included at the ASBH Annual Meeting in Minneapolis (Oct 13-16). 

Rasouli - Is Stopping Life Support = Treatment?

It seems that the focus of the parties' arguments in Rasouli is on whether stopping life support constitutes treatment.  (I posted the appellate briefs here)  The Ontario HCCA seems to clearly require consent for all treatment.  But is stopping treatment = treatment?  





The physician appellants argue that it is.  The family respondents (and intervenor EPC) argue that it is not.  But it seems that plaintiff and intervenor have the better argument.  After all, the physicians are surely not proposing to wholly abandon the patient.  They are not terminating their treatment relationship.  Instead, they are just changing the nature of the treatment provided.  They want to move from curative/aggressive measures to palliative/comfort measures.  It is a switch from treatment A to treatment B.  In short, what the physicians propose is still treatment.  See, e.g. Hartsell v. Fort Sanders Reg. Med. (Tenn. 1995).

The Right to Unilaterally Refuse Life Support: Oral Arguments in the Rasouli Case

Ontario has one of the most effective mechanisms in the world for resolving medical futility disputes: the Consent and Capacity Board.  But there are material limitations to the CCB.  It only gives providers consent to their proposed treatment plan when that treatment plan is consistent with the patient's preferences and/or best interests.  When the evidence suggests that patient really would have wanted treatment (for example because he is a Shia Muslim) that is not recommended by her providers, the CCB is of no help to providers.  



Accordingly, some Ontario providers would like another dispute resolution mechanism (at least for these intractable futility disputes with irreplaceable surrogates).  The Ontario Court of Justice rejected that argument in March, holding that the CCB is the exclusive forum for resolving these disputes.  This morning, the Court of Appeal for Ontario heard oral arguments on the appeal of that March ruling.

Brain Death and the Courts

In a recent issue of Neurology, Burkle et al. systematically review how challenges to brain death determinations have been treated in U.S. courts.[1]  They conclude that court rulings consistently uphold the medical practice of death determination using neurological criteria.  I wish to comment on the study's methodology and limitations. 



Burkle et al. reviewed nearly 400 court cases and selected nineteen for analysis.  These cases were all drawn from a Westlaw database.  While this is a valid research instrument, it has serious limitations.  Most medical practice cases are brought in the state courts.  Very few of these are litigated to a final judgment.  Even fewer are still further litigated to a published appellate decision.  Since Westlaw state court databases are comprised almost exclusively of appellate decisions, they provide only a narrow window into how brain death is being treated in the courts. 



It is a common feature of brain death disputes, as well as end-of- life treatment disputes more broadly, that they become moot before the slow wheels of justice reach a final resolution on the merits.  Looking beyond the universe of published appellate opinions, it is less clear that cases challenging brain death determination are quite as uncommon as Burkle et al. suggest.  To be precise, the legal standards are well- settled.  But the application of these standards to any particular patient is often controversial.  Just one notable example is Utah's Jesse Koochin case from October 2004.  There are other examples.  Families regularly bring lawsuits seeking injunctions against the removal of life-sustaining treatment.  And the courts often issue those injunctions, at least temporary ones.[2,3,4,5]        



1. Burkle CM, Schippen AM, Wijdicks EFM. Brain death and the courts. Neurology 2011; 76:837-841. 

2. Cole v. University of Kansas Medical Center, No. 06-CV-830 (Wyandotte County District Court, Kansas 2006). 

3. Shively v. Wesley Medical Center, No. 06-CV-640 (Sedgwick County District Court, Kansas 2006). 

4. Vincent J. Judge grants request for restraining order. The Journal [Martinsburg, WV] 2009; Sept. 9. 

5. In re Motl Brody, No. 1:08-CV-01898 (HHK) (D.D.C. 2008).

New Test for Determining Futility of CPR

The Wall Street Journal reports that the "capnograph," which measures carbon dioxide being expelled from the mouth of the patient, can "tell rescuers when further efforts at cardiopulmonary resuscitation, or CPR, are futile or whether they should be continued."  The capnograph records CO2 pressure in milligrams of mercury. If the maximum CO2 pressure achieved during 20 minutes of CPR is 14 or less, resuscitation is almost certainly futile. If the level is above about 25, you need to keep working at it. 

Dying Matters Awareness Week

This week is Dying Matters Awareness week.  Appropriate to the occasion, ComRes has released a survey today (also available here).  Here are a few of the findings:  

• Just 15% of people would like to live forever and only 9% would like to live to over 100. 


• The most common age at which people would like to die is aged 81-90 (27%). Younger people are more likely than older people to want to live forever. 


• More people are scared of dying in pain (83%) than of being told they are dying (67%), dying alone (62%) or dying in hospital (59%). Women are more scared of dying than men.


• The older people get the more likely they are to think that quality of life is more important than the age they live to, with 81% of people aged 65 or over saying this, compared with 58% of people aged 18-24.

AARP Report on POLST - Required Reading

I blogged about this AARP report on POLST a few weeks ago.  I finally read through it this weekend.  It is the most comprehensive report that I have ever seen on POLST.  It is definitely required reading for anyone implementing a program in any state.

Restricting Use of Shariah in U.S. Courts - Rasouli v. Sunnybrook

Three states have already enacted measures that ban or restrict the use of Shariah in their courts.  Seventeen other states are considering similar measures.  (Gavel to Gavel)  This could have some material impact on end-of-life disputes because sometimes tsurrogates demand continued aggressive treatment because the patient follows Shariah law.  

For such patients, a surrogate replacement mechanism like the CCB will not work.  In these cases the surrogate not acceding to the provider's treatment plan is asserting the patient's own religious beliefs.  Indeed, physicians have typically lost CCB cases with Muslim patients.  And it is this limitation of the CCB approach that is being challenged in the Rasouli v. Sunnybrook case in Ontario. 

Medical Futility in Las Vegas

This Friday afternoon, I will be speaking at the Encore at Wynn Las Vegas for the National Academy of Elder Law Attorneys Elder and Special Needs Law Annual National Conference.

The program book describes my session as follows:  "As medical technology becomes more advanced, patients are demanding more treatment. When is it enough, and who should make that decision?  In this program discover the legal and ethical issues surrounding medical futility."  I am going to have to make the requisite points about prognostication, long odds.

Caring for the Seriously Ill: Cost and Public Policy - Symposium

I just noticed that the publisher has posted the summer 2011 issue of the Journal of Law, Medicine, and Ethics.  The bulk of this issue is comprised of a symposium that I assembled and edited with Robert Arnold and Amber Barnato titled “Caring for the Seriously Ill: Cost and Public Policy.”  Here is the table of contents:

• INTRODUCTION: Caring for the Seriously Ill: Cost and Public Policy (pages 111–113) -- Thaddeus M. Pope, Robert M. Arnold and Amber E. Barnato


• End-of-Life Care: A Philosophical or Management Problem? (pages 114–120) -- Daniel Callahan


• The Ethical Implications of Health Spending: Death and Other Expensive Conditions (pages 121–129) -- Dan Crippen and Amber E. Barnato


• Care, Compassion, or Cost: Redefining the Basis of Treatment in Ethics and Law (pages 130–139) -- Tom Koch


• Health Care Accessibility for Chronic Illness Management and End-of-Life Care: A View from Rural America (pages 140–155) -- Kathryn E. Artnak, Richard M. McGraw and Vayden F. Stanley


• Just Caring: Health Care Rationing, Terminal Illness, and the Medically Least Well Off (pages 156–171) -- Leonard M. Fleck


• Futility, Autonomy, and Cost in End-of-Life Care (pages 172–182) -- Mary Ann Baily


• Making the Case for Talking to Patients about the Costs of End-of-Life Care (pages 183–193) -- Greer Donley and Marion Danis


• Costs and End-of-Life Care in the NICU: Lessons for the MICU? (pages 194–200) -- John D. Lantos and William L. Meadow


• End-of-Life Decision Making across Cultures (pages 201–214) -- Robert H. Blank


• The Value of Life at the End of Life: A Critical Assessment of Hope and Other Factors (pages 215–223) -- Paul T. Menzel


• In the Business of Dying: Questioning the Commercialization of Hospice (pages 224–234) -- Joshua E. Perry and Robert C. Stone

Statement on Futility and Goal Conflict in End-of-Life Care in ICUs

The major medical association statements and policies on medical futility disputes are quite old.  The AMA policy dates to 1996.  The American Thoracic Society statement dates to 1991.  I was pleased to be a part, this weekend in Denver, of drafting (or beginning to draft) a new "Statement on Futility and Goal Conflict in End-of-Life Care in ICUs" with the ATS and other critical care societies.

Conscientious Objection and Nonabandonment

Rachel Lampert is right that pacemakers do not have special legal status in end-of-life decisions (305 JAMA 1858-59 May 11, 2011).  But this line caught my attention:  "Clinicians should not be compelled to perform procedures that they are in disagreement with morally but . . . they must not abandon the patient."  Unfortunately, in many situations these two principles are incompatible.  

Article on the Albert Barnes Case

Last month's issue of Minnesota Medicine included this brief article on the Albert Barnes case and how advance care planning could preempt such conflicts.

Doing Fine after Brain Death Diagnosis: Glora Cruz

Gloria Cruz had a stroke in her sleep on March 7 and was rushed to Royal Darwin Hospital.  She was later diagnosed as being "brain dead" by a team of doctors.  But her distraught husband Tani begged them not to switch off her ventilator.  A doctor finally agreed to put a breathing tube into Mrs Cruz's throat before turning off the machine.  And three days later, she woke up.  Mrs Cruz is now alert and getting around in a wheelchair at Royal Darwin Hospital.  A doctor was so amazed, he said: "It's a miracle."  And then he turned to Mr Cruz and said: "I am happy that my prognosis was wrong.”  (Northern Territory News)

Wrongful Withdrawal of LSMT Does Not Break Chain of Causation

Blogging about the Jada Ruiz Jones case reminded me of another recent decision in a similar case: the Wisconsin criminal case of Michael Below.  The infamous (and poorly-reasoned) Montalvo decision in Wisconsin makes it permissible to withdraw life support from a child only where the child is in a persistent vegetative state.  Only under such circumstances can parents or providers rebut the presumption that continued life is in the best interests of the patient. 





Michael Below beat a small child into a catastrophic but non-vegetative state.  Life support was withdrawn.  The child abuse defendant argued that withdrawing life support inconsistent with the narrow confines of Montalvo was wrongful.  Therefore, he argued, that broke the chain of causation causing the child's death.  He argued that his conviction must be reversed because the jury should have been, but was not, so instructed. 

The Wisconsin Court of Appeals affirmed Below’s conviction.  It avoided analysis of the wrongfulness of withdrawing inconsistent with Montalvo because it held that the chain of causation would not have been broken even if it were wrongful.

Murder Conviction in Jada Ruiz Jones Case

I blogged last July about an Ohio judge's decision to permit, consistent with healthcare provider recommendations, the withdrawal of life support from a severely battered six-month-old baby.  The father, who was accused of shaking the baby, objected to the decision.  He clearly had a material conflict of interest.  And his objection was overruled.  Last night, a jury convicted the father of murder.  (Akron Beacon Journal)

ASLME Member Spotlight

ASLME was nice enough to put me in its monthly "Member Spotlight."

Caring for the Seriously Ill: Cost and Public Policy

The staff at the Journal of Law, Medicine and Ethics is finalizing the very last version of “Caring for the Seriously Ill: Cost and Public Policy,” the summer issue guest edited by Robert M. Arnold, Amber E. Barnato, and myself.   

This symposium examines issues at the end of life and the role cost plays in decision making during this time—e.g., how end-of-life expenditures are contributing to overall health care costs, why cost is both an ethical and policy issue, why discussions of cost considerations should begin before the end of life, how end-of-life care is a matter of shared decision making, and the financial hardship cost can create for families caring for their loved ones (and the emotional hardship that can create for the patient).  The authors also discuss the ethical implications of health care rationing, health care accessibility, and futile treatment. Whether discussing the ethics of cost, health care rationing, or just hope in the end-of-life context, the authors address this topic with dignity and thoughtful analysis.

Competing Amendments to the Texas "Futility" Law

Chuck Lindell at the Austin American-Statesman had a nice article in Sunday's paper summarizing the state of H.B. 3520, the competing committee substitute, and other proposed amendments to Texas Advance Directives Act section 166.046.  The overall thrust of the piece is that with so little time left in the 2011 legislative session, nothing will get passed.  Key stakeholders are nowhere close to agreement on a minimum "treat 'til transfer" time period or on other things. The law will likely remain unchanged (unimproved) for the third legislative session in a row.

Iris

You are warmly invited to the opening reception on Tuesday 17 May of 'Iris', a celebration of art by this year's Medical Humanities students. The reception starts at 7 pm. The exhibition is in the Blyth Gallery, Sherfield Building, Level 5 of the South Kensington campus of Imperial College London. All welcome.

N.Y. Bill to Promote ACP in Medicaid Population

A few days ago, New York Senator Patrick Gallivan introduced S.B. 4830.  This bill would require the provision of a model health care proxy form, living will or other comparable materials to individuals applying for medical assistance.  As I have written before, these sorts of measures are wholly appropriate.  ACP should be promoted in at least the ways that organ donation and NOKRs already are.  Here is the text of the bill:

Every person making application for medical assistance, and every person on whose behalf an application is made, shall, if interested,  be given  the New York state Department of Health model health care proxy form, living will or comparable materials and instructions by the person taking the application, except where doing so would impede the immediate provision of health care services.

A Bittersweet Season: Caring for Our Aging Parents--and Ourselves

Seven Forthcoming Futility Articles

There are seven short articles on medical futility published OnlineFirst over the past few weeks in the Journal of Bioethical Inquiry.

Same Coin-Different Sides? Futility and Patient Refusal of Treatment

Eleanor Milligan

Futility Determination as a Process: Problems with Medical Sovereignty, Legal Issues and the Strengths and Weakness of the Procedural Approach

Cameron Stewart

No Chance, No Value, or No Way: Reassessing the Place of Futility in Health Care and Bioethics

Sarah Winch and Ian Kerridge

Defining Medical Futility and Improving Medical Care

Lawrence J. Schneiderman

The Futility of Futility: Death Causation is the ‘Elephant in the Room’ in Discussions about Limitation of Medical Treatment

Michael A. Ashby

Minimally Conscious States, Deep Brain Stimulation, and What is Worse than Futility

Grant Gillett

Medical Futility and the Death of a Child

Nancy S. Jecker

Lessons from Seville: Identifying & Reducing Inappropriate End-of-Life Treatment in New Jersey

I am editing my Grand Rounds presentation for the University Medical Center at Princeton:  "Lessons from Seville: Identifying & Reducing Inappropriate End-of-Life Treatment in New Jersey."  I am excited about this one.  I go beyond the classic medical futility dispute to examine a far broader context.  I group the root causes of inappropriate end-of-life treatment into four categories and identify several solutions within each category.  

The Unspoken

The Unspoken - A 3 minute Film About Father-Son Communication  (HT: Pallimed)

Pressured to Refuse Ventilator -- Persuasion vs. Coercion

Simon Fitzmaurice, an Irish man with motor neuron disease (MND), revealed to the Irish Times how health professionals pressured him to refuse the ventilator that is keeping him alive.  Shortly after being admitted, a doctor informed him it was rare and expensive for patients with his condition to have a ventilator at home.  Fitzmaurice said the doctor told him: “That it is time for me to make the hard choice.  He tells me that there have only been two cases of invasive home ventilation, but in both cases the people were extremely wealthy. . . .  This is it now for you.  It is time for you to make the hard choice, Simon.”

There is a growing consensus that patients ought not be abandoned to their autonomy.  Physicians should share their recommendation.  Indeed, if they feel strongly about it, they might even attempt to persuade the patient with evidence and argument.  But physicians must be careful not to stray from rational persuasion to badgering, manipulation, or coercion.  Unfortunately, some patients often experience mere persuasion as coercion.   Other patients feel that the physician does not share enough.  

Anti-Euthanasia Cards

I do not regularly write about developments concerning Physician Aid-in-Dying.  Indeed, that would be quite a challenge with all the legislative initiatives and court cases now active across the globe.  But I was fascinated with this story in the Telegraph recently.  It reports that “many elderly people in the Netherlands are so fearful of euthanasia that they carry cards around with them saying that they do not want it.”  Some 6000 members of the Dutch Patients’ Association (NPV) have “living will declarations” stating that they do not want euthanasia if they are taken into hospital or a nursing home. 

Now, there may be some basis for concern about involuntary euthanasia in the Netherlands.  I am not writing about that.  My more immediate concern is that similar fear, misinformation, and distrust here in the United States will cause many people to complete the same sorts of cards (with respect to passive, not active, euthanasia), undermining the positive potential of advance care planning.  For example, the NRLC has been distributing a "Will to Live" for several years.  While such documents may accurately reflect the preferences of some individuals, they are inappropriate for many.