Legal Briefing on Advance Care Planning

The latest issue of the Journal of Clinical Ethics should be out.

In this issue - 20(4) - I have a article (pages 289-296) that reviews recent legal developments concerning advance care planning.  I group these into six categories: 

1.     General healthcare decisions statutes

2.     Statutes mandating compliance with advance directives in long-term care facilities

3.     “Right-to-know” informed consent laws

4.     Advance directive registries

5.     POLST laws

6.     Laws mandating insurance coverage for ACP

Ariel Sharon Four Years Later: ‘Probably Comatose for Life’

Former Israeli Prime Minister Ariel Sharon suffered a stroke four years go that has left him comatose, a condition that is unlikely to change. Sharon, now age 81, suffered a mild stroke in December of 2005, followed by a massive one in January 2006 from which he has never regained consciousness.


Close friend and former advisor Dov Weisglass told the Associated Press that although Sharon's vital signs are good, there are no signs he is progressing out of his coma, despite several rumors over the years that were based on involuntarily movements of his eyes. (Arutz Sheva)

The Impact of Ron Houben in the Media

As widely reported throughout the world, over the past several weeks, Belgian crash victim Rom Houben appeared to begin communicating from a presumed vegetative state of 23 years.  Coma scientists in Europe promoted Houben's alleged use of a letter board to tap out elaborate sentences, and claimed more than 40 percent of patients presumed in a PVS or MCS might be fully conscious. 

As expected, many families (like that of Lisa Smith) of brain-trauma patients found their hopes rising anew.  "It's scary for people to think of someone 'in there' and being disconnected" from life support.  (Dr. Steven Ringel, a neurology expert with the University of Colorado Denver School of Medicine).   (Denver Post)


Are families being more aggressive now?  Are they less willing to accede to provider recommendations to move to palliative care?  Are providers themselves less willing to make such recommendations?

Montana Permits Assisted Suicide

The Montana Supreme Court said, today, that nothing in state law prevents patients from seeking physician-assisted suicide, making Montana the third state that will allow the procedure.


The 68-page opinion is available here.

Keeping Granny on Life Support for the Money

Surrogates are sometimes motivated by non-patient-centered reasons to keep a patient on life support.  Perhaps the patient was the recipient of some pension or government support check upon which the surrogate was dependent.  The death of the patient would spell the end of the income stream.  Of course, without specific patient consent, such selfish surrogates should be replaced.  

Here, at the end of 2009, there is a new incentive for surrogates to maintain patients on life support contrary to the patient's instructions, wishes, or expectations.  Starting tomorrow, the U.S. estate tax, which can erase nearly half of a wealthy person's estate, goes away for a year. 

For families facing end-of-life decisions, the change is making one of life's toughest episodes more complex "I have two clients on life support, and the families are struggling with whether to continue heroic measures for a few more days," said Joshua Rubenstein, a lawyer with Katten Muchin Rosenman in New York. "Do they want to live for the rest of their lives having made serious medical decisions based on estate-tax law?"  

On the other hand, some patients are putting provisions into their health-care proxies allowing whoever makes end-of-life medical decisions to consider changes in estate-tax law to make it easier on their heirs.  (Saunders, Australian & WSJ)


Interestingly, at the end of 2010, providers may see the opposite issue:  not surrogates prolonging treatment to get into the good tax year, but surrogates ending treatment quickly to stay within the good tax year.

The 6th International Conference on Clinical Ethics Consultation (ICCEC)

I registered to present at the the 6th International Conference on Clinical Ethics Consultation (ICCEC), to be held in Portland, Oregon in May 2010.  I am glad that I did.  The developing program looks very interesting.  This is just a sampling from the website.

"Get Me Home So I Can Kill Myself"			Australia
Values-Based Management: Bridging the Gap Between Clinical and Organizational Ethics			Austria
Bio-Medical-Social Action by Bioethics: A Way to Combat Loss of Wellbeing			Bangladesh
Ethical Dilemmas on the Double Role of Investigator Physicians			Brazil
Navigating the Murky Intersection Between Clinical and Organizational Ethics: A Hybrid Case Taxonomy			Canada
The Art of Ethics and the Ethics of Spiritual Care			Canada
The Art of the Ethics Consultation: Form, Flexibility and Function			Canada
(more after the break)

Weighing Medical Costs of End-of-Life Care

This story in today's New York Times identifies one of the thorniest issues when it comes to limiting end-of-life treatments: how low can probability of benefit go before the treatment becomes inappropriate?.  

In the Dartmouth Atlas reports, UCLA looks like a New Jersey hospital --  it spends far more than the average U.S. hospital at the end of life.  UCLA will go to "virtually any length and any expense to try to save a patient's life."  For most of these patients, those aggressive interventions will cause suffering and expense without any countervailing benefit.  Thus, the argument is that such measures ought not have been offered or provided.  They are the product of waste, inadequate EOL training, defensive medicine, or bad economic incentives. 

UCLA's response:  Some of those aggressive measures actually work.  "It can be hard, sometimes impossible, to know which critically ill patients will benefit and which will not."  In other words, since the probability of success is not zero (physiological futility), it is unclear whether the extra expense is misspent.  

Park Bench Stickers Prompt Advance Care Planning

Two Toronto advertising veterans have come up with park bench plaques – actually stickers – meant to draw attention to the fact that death can be excruciatingly difficult and to stir up debate about the need for advance care planning.  The campaign was also motivated by the current debate over Bill C-384.  But the idea need is hardly limited or focused on euthanasia.  (Toronto Star)  The stickers point to a website with some ACP tools and information.

The faux plaques "commemorate" three fictional people – Donald J. McLeod, Rosa Maria Allende and Kathleen (Kay) Mandell.  There, on a peeling bench backing onto Carlaw Ave., you can read about Mandell whose Lou Gehrig's disease "caused her muscles to waste away, one by one, until her throat paralysed and she choked to death while fully conscious."  

The fictitious McLeod spent six years in a coma while the courts debated his fate. Allende was kept alive for four years, costing hundreds of thousands of dollars that "could have helped find a cure for the very disease she suffered from."

The Constitutionality of the Texas Advance Directives Act

The Journal of Legal Medicine just published the problem and best brief from the 2008 National Health Law Moot Court Competition.  I drafted the problem.  Loyola Chicago students (who regularly do quite well at this competition) drafted the best brief. 


The first issue concerns whether there is state action in the use of a 166.046-type mechanism by a hospital ethics committee in a private non-profit hospital.  The second issue concerns whether a 166.046-type mechanism afford sufficient procedural due process.  While the problem is based on a hypothetical case and a hypothetical statute, it is all patterned very closely on Texas. 

Georgia State University Law Review, "Baby Doe at Twenty-Five"

The excellent Georgia State University Law Review symposium on the Baby Doe rules and substantially on medical futility was recently published.  The videos from the conference are available here.  Here is the table of contents:

Charity Scott, 25 Ga. St. U. L. Rev. 801: “Baby Doe at Twenty-Five”

                       

Mark R. Mercurio, 25 Ga. St. U. L. Rev. 835: “The Aftermath of Baby Doe and the Evolution of Newborn Intensive Care”

                       

Sadath A. Sayeed, 25 Ga. St. U. L. Rev. 865: “The Problem of Non-Identity in Valuing Newborn Human Life”

                       

Jatinder Bhatia, 25 Ga. St. U. L. Rev. 901: “Baby Doe: Does It Really Apply Now?--Palliative Care of the Ill Neonate”

                       

Loretta M. Kopelman, 25 Ga. St. U. L. Rev. 909: “Why the CAPTA Baby Doe Rules Should Be Rejected in Favor of the Best Interests Standard”

                       

William J. Winslade, 25 Ga. St. U. L. Rev. 931: “Personal Reflections on Extremely Premature Newborns: Vitalism, Treatment Decisions, and Ethical Permissibility”

                       

Thomas J. Balch, 25 Ga. St. U. L. Rev. 959: “Are There Checks And Balances On Terminating The Lives of Children With Disabilities? Should There Be?”

                       

Robert D. Truog, 25 Ga. St. U. L. Rev. 985: “Medical Futility”

Thomas William Mayo, 25 Ga. St. U. L. Rev. 1003: “The Baby Doe Rules and Texas's “Futility Law” In the NICU”

                       

Ellen Waldman, 25 Ga. St. U. L. Rev. 1019 - The Baby Doe Regulations and Tragic Choices at the Bedside: Accepting the Limits of “Good Process”

Mary Crossley, 25 Ga. St. U. L. Rev. 1043: “Rescuing Baby Doe”

Anita Silvers, 25 Ga. St. U. L. Rev. 1061: “Playing God with Baby Doe: Quality Of Life and Unpredictable Life Standards at the Start of Life”

                       

Craig A. Conway, 25 Ga. St. U. L. Rev. 1097:  “Baby Doe and Beyond: Examining The Practical and Philosophical Influences Impacting Medical Decision-Making On Behalf Of Marginally-Viable Newborns”

Good Euthanasia Precedent in China Is Not Relevant

The U.S. - China Health Law Symposium, earlier this week, at SWUPL (: 西南政法大学) also included a number of law and medical professionals from other schools around China.  


One of these was Zhang Zanning (on the left in the pic), a professor, lawyer, doctor, and arbitrator.  He is director of the Health Law Institute at Southeast University Medical College.  He came to discuss his theory of "oblique law."  But I was a little more interested to hear about his prior work as a lawyer.

In early 1986, Xia Suwen suffered from cirrhosis of the liver, was sent to hospital and her condition failed to improve after various medical treatments. Her son, Wang Mingchen, urged Pu Liansheng, the doctor in charge of his mother to carry out euthanasia to their mother, and later the doctor agreed.  Xia Suwen passed away after receiving an injection of on June 29, 1986 in the hospital, becoming the first case of euthanasia in China.


Pu Liansheng and Wang Mingcheng were arrested for murder and the local procuratorate charged the two.  Zanning represented the doctor.  After reporting the case to the Supreme People's Court and in accordance with the suggestion from it, the local court found both Pu and Wang not guilty on April 6, 1991.  But this case, like almost all cases in China, has no precedential status.  While even jury verdicts (as in Gilgunn v. MGH) are widely cited and used as guidance in the United States, not even appellate decisions in China are worth citing.  Judges, who are often rather new lawyers, follow only black letter law.

Hot Pot

Another hot pot meal after the first day of the conference.
Putting all the different foods into the pot and fishing it back
out is only part of the fun.

The Chinese will never let your glass stand empty. And every
few minutes someone from your table (and many come over from
other tables) will make a toast. The respectful thing to do is
drink "bottoms up" and tilt your glass toward the other to show
you finished. Of course, too much of this can really test the
limits of one's endurance.

Circular Conference Rooms

One thing about the China-U.S. health law conference that I
was unable to convey with my limited photography skills is the
circular shape of the venue room.

While law schools often have semi-circular and horseshoe
shapes, I am not sure I have seen too many fully circular
rooms. This room had a center circle where the more senior
speakers and guests sit. A second larger ring is where other
professors sit. And students sit in the outer rings.

This design kept everyone engaged with the topic and with each
other. Interestingly, the shape of every table at almost
every of the many restaurants at which we ate in Chongqing was
also circular. Surely the same principle animates the design
of both academic rooms and dining tables: the locals' great
collegiality and friendliness.

Filial Piety and Overly Aggressive End-of-LIfe Care

I spoke this week at the Southwest University of Political
Science and Law. While there are over 600 law schools in
China, SWUPL is one of only five universities that focuses on
law (as opposed to law being just a department in a larger
comprehensive university).

I compared challenges facing the United States and China with
respect to reducing end-of-life healthcare costs in order both
to preserve economic security and expand access. One obstacle
in both the United States and China is that families often
demand overly aggressive care, treatment more aggressive than
the patient would choose for herself.

But this is a far more significant obstacle in China for two
reasons. First, decision making is made on a familial,
collective level rather than on an individual, autonomy level.
So, advance care planning (patient consent) to do less is not
so viable and option. Second, filial piety runs deep, and
children feel that they must insist on all available
technology in order to be good children. See this carving
illustrating the concept from my visit to the fantastic Dazu
World Heritage Site.

2009 AMA Resolution 3: Limiting Futile Care at End of Life (FL)

The AMA YPS proposed this resolution a few weeks ago, but it was
not adopted by the House of Delegates.

"RESOLVED, That our American Medical Association seek
legislation by the United States Congress that will allow the
creation of a methodology directed by physicians (MDs/DOs) that
permits physicians (MDs/DOs) to either not engage in or to
suspend futile care at the end of life; and that those
physicians (MDs/DOs) be given immunity from liability when such
decisions are made in good faith and within the standard of care
with clear and convincing legal and ethical standards.
(Directive to Take Action)."

Professor Forzley and Juliya

The foreign visitor coordinator from S.W.U.P.S.L., Juliya, has
been a superb hostess. She scooped us up from the airport and
deposited us at the hotel. She has taken us out to eat and has
shown us notable sites. And, of course, she does all the
translating.

But that is just a job description and does not do justice to
the masterful execution of the duties. Juliya is actually quite
gifted for this type of job, which is probably a mix of innate
talent and experience dealing with many visiting professors.
Here she is with Professor Forzley at lunch today in Old Town.

Friday Lunch -- Hot Pot

The things to eat in Chongqing is hot pot. We did not get
traditional hot pot today, but seafood hot pot.

As you can tell from the picture, there is basically a large pot
with broth on a burner in your table. The server brings all
sorts of seafood and vegetables. They cook in the pot and she
fishes them out and serves them as they are done cooking. This
is a fun way to eat. And you get to try a whole bunch of
different things, almost too many.

Ciqikou Old Town - part 3

Ciqikou Old Town - part 2

Ciqikou Old Town - part 1

Friday afternoon, we went to Ciqikou Old Town. Professor
Forzley thought that we should visit this Community Health
Center. But the main focus of the Old Town (as with many like
that in San Diego) is shopping and fun.

Friday Morning in Chongqing

The hotel is quite nice. Here is the view from my window. But
even better is the immediate surrounding area in the Shapinga
sector of the city.

There are pedestrian-only shopping walkways that stretch some 20
blocks in several directions around the hotel. I like that sort
of thing in any city. Here it is especially important because
one does not want to have to cross more streets than necessary
given the randomness of traffic rule compliance.

Southwest University of Political Science and Law

Our host here in Chongqing is the Southwest University of
Political Science and Law.

The official U.S. - China health law conference begins Monday.
But since the university was on the way to something else this
morning, we stopped by to snap this photo by the front gate.

Blogging from China

Blogging from China is a little tricky because my website, and
indeed many Google-affiliated services, are simply not
accessible. Yahoo is king here.

Today, Friday Dec. 11th, was our first complete day. Professor
Forzley and I arrived on Wednesday night and stayed over in
Beijing. On Thursday, we flew to Chongqing and got situated
here.

It was a great day, really. Assuming that attaching pictures to
emails actually works to post them on the blog, I will do a
series of posts with pictures.

Dogs for Ethics Committees and Ethics Consultants

This month’s ABA Journal reports on the growing interest in the use of dogs in courthouses.  Perhaps the same can be adapted for use by hospital ethics committees.

If Duval County, Fla., Judge Emmet Ferguson has his way, there will be a dog in every courthouse across the country.  “Dogs put smiles on people’s faces, and there usually aren’t a lot of smiles in a courthouse,” says Ferguson, who works out of Jacksonville.  Ferguson is working to establish a service dog program in the Duval County court system. His effort reflects a small but growing international trend of using trained dogs in a variety of courthouse settings to reduce the tension inherent in the adversarial process.

Advocates say the dogs are used most often to calm witnesses and victims, especially children. But, they say, having a dog in the courthouse helps everyone.  The mere presence of dogs can be highly effective.  When you have opposing counsel down on his or her knees patting the dog before negotiations, that starts everything off in a friendlier way.

Health Law in U.S. Law Schools

Check out the AALS Law and Medicine Section Newsletter, for a snapshot of what has been going on lately with U.S. law school professors teaching and writing in health law, public health law, and bioethics.

Yarick v. Pacificare - to Save Money, Docs Pressure Surrogates to Stop Life Support

Yesterday, the California Fifth District Court of Appeal published an opinion in Yarick, v. Pacificare of California, No. F057032.  The appellate opinion holds that the plaintiff’s state law claims against a federal Medicare Advantage program were preempted by the 2003 Medicare Prescription Drug, Improvement and Modernization Act, 42 U.S.C. Section 1395w-26(b)(3).  But what is even more interesting are the pending claims against the healthcare providers.

In early January of 2006, Mr. Yarick, who “was over 85 years of age,” was admitted to defendant San Joaquin Community Hospital because he had fallen and broken his leg. Mr. Yarick had surgery to repair his broken leg and, three days later, was transferred to Rosewood Health Facility, operated by defendant American Baptist Homes of the West, for rehabilitation and custodial care.

Over the next three weeks, Mr. Yarick's condition deteriorated in various ways. Nevertheless, Rosewood Health Facililty and defendant Bakersfield Family Medical Group, despite the objection of Mr. Yarick's family, discharged Mr. Yarick. When the family arrived to receive Mr. Yarick upon discharge, they found him “slumped in a wheel chair and not responsive.” The family called an ambulance, which transported Mr. Yarick to Mercy Hospital, operated by defendant Catholic Healthcare West.

Mr. Yarick was diagnosed with multiple conditions, including pneumonia and congestive heart failure. Over the next two weeks, according to the complaint, doctors of defendant Bakersfield Family Medical Group first counseled, and then pressured, appellant to terminate efforts at curing Mr. Yarick and to substitute, instead, “comfort” or end-of-life care. Although plaintiff continued to insist on curative care, as a result of the efforts of the various defendants, Mr. Yarick died on February 18, 2006.

The fourth amended complaint alleges that all of the foregoing events happened because of the financial pressures and incentives that arose from the care providers' contracts with respondent. The complaint alleges respondent's contracts with providers offer insufficient payment to permit the providers to make decisions and to provide care based on patients' reasonable medical needs, requiring the providers to substitute a standard of financial expediency. It alleges some of the contracts provide financial incentives for the refusal to provide reasonably necessary medical care. It alleges respondent has failed to implement and utilize necessary quality control mechanisms that would require providers to give good medical care despite the financial incentives not to do so.

Does Grady Memorial's Cessation of Outpatient Dialysis Constitute Tortious Abandonment

Grady Memorial Hospital closed its outpatient dialysis unit in early October, citing expenses. The hospital has paid a separate dialysis clinic to provide three months of additional care for those patients with no health insurance, no government assistance and no place else to go.  But that extended care expires Jan. 3, and the approximately 30 patients receiving this care -- virtually all low-income illegal immigrants -- worry that their health will spiral downward after that.  (Atlanta Journal-Constitution)

Patient advocates have an ongoing lawsuit to force Grady to reopen the outpatient dialysis clinic.  But the judge has been cool to the arguments that Grady has denied these patients their rights under the state constitution.  A group called Grady Advocates for Responsible Care plans to argue that Grady's closure of the clinic constitutes "medical abandonment" of the patients.

The abandonment argument seems very tough given, among other things:  (1) the global, non-patient-specific nature of the decision, (2) the significant notice, and (3) the significant assistance that these patients have been given.  Indeed, the famous 1982 Payton v. Weaver case seems to be on point and seems to support the hospital.

Still, the question of whether a healthcare provider can ever stop life-sustaining treatment for patients who have no other alternative lies at the heart of futility disputes.  And it is hardly a settled question, as illustrated by the appellate briefing on tortious abandonment in Betancourt v. Trinitas.  

Palliative Care Grand Rounds 1.11

Palliative care grand rounds is up at Death Club for Cuties.  Through the author's entertaining narrative, the reader is guided through various recent relevant blogs and will probably find 1 or 2 news ones valuable and worth following.


The author, Jerry, is "a nurse practicing in the busy neurosciences intensive care unit of a large urban teaching hospital."  His specific clinical interest is "caring for patients and families at the end of life."  He is an ELNEC trainer and a graduate student.

Betancourt v. Trinitas -- Most Requested NJ Court Opinion in 2009

The New Jersey Law Journal's sixth annual Legal Almanac contains, among other things, a list of the judicial opinions which were most requested by attorneys in the State.  


Elder law attorney Donald Vanarelli noticed that "one of the most requested judicial opinions was the unpublished decision in Betancourt v. Trinitas Regional Medical Hospital, which didn’t involve any award of money damages at all."


"[I]n the Betancourt case, Judge John Malone, the Chancery Judge in Union County, found that the decision to continue or terminate life support was not for the courts to decide. Instead, Judge Malone appointed a 73 year old comatose patient’s daughter as his guardian and granted her petition to restrain defendant Hospital from discontinuing or suspending life-supporting treatment." 

Texas Advance Directives Act: More than 1000 Unilateral Refusals

There are no formal data kept on usage of the section 166.046 unilateral refusal provision in the Texas Advance Directives Act.  But one can make a reasonable estimate based on some collected data.

One widely reported figure indicates that the formal process was used 65 times collectively in 11 hospitals over a 5-year period and in 5 hospitals over a 2-year period.  That means it was used about once per "hospital year" [(11 x 5 = 55)  + (5 x 2 = 10)].  These figures might be understated because the process may be used more frequently today, after: (1) further provider education, (2) surviving judicial and legislative challenges, and (3) increased end-of-life conflict.

There are 583 hospitals in Texas.  And TADA has been in effect for over 10 years.  Therefore, one might surmise that the formal process has been used nearly 6000 times (583 x 10).  But that would be too high because not all hospitals will have these types of cases.  Still, using even a conservative figure of just 100 hospitals, suggests that the process has been used at least 1000 times.

To be clear, the process has a duration.  So, it can be "used" in different ways.  Take the 1000 cases figure.  About 500 of these patients would have been transferred or would have died during the 10-day waiting period.  Only the other 500 would have had life-sustaining treatment unilaterally withdrawn.

Moreover, it is worth noting that these 1000 cases would be relatively rare.  These  intractable cases would comprise only 6.70% of the far broader universe of nearly 15,000 futility ethics consultations (14,000 of which would have achieved provider-family consensus).

NEW - Presidential Commission for the Study of Bioethical Issues

Yesterday, President Barack Obama signed an Executive Order creating a new Presidential Commission for the Study of Bioethical Issues.  He also announced today he has appointed Amy Gutmann to serve as Chair and James W. Wagner to serve as Vice Chair of the Commission.


President Obama said, “As our nation invests in science and innovation and pursues advances in biomedical research and health care, it’s imperative that we do so in a responsible manner.  This new Commission will develop its recommendations through practical and policy-related analyses.  I am confident that Amy and Jim will use their decades of experience in both ethics and science to guide the new Commission in this work, and I look forward to listening to their recommendations in the coming months and years."


The President’s Commission for the Study of Bioethical Issues will advise the President on bioethical issues that may emerge from advances in biomedicine and related areas of science and technology. The Commission will work with the goal of identifying and promoting policies and practices that ensure scientific research, health care delivery, and technological innovation are conducted in an ethically responsible manner.

Rom Houben -- No Cause to Overhaul Treatment Standards

Media in Europe and around the world are reporting that Rom Houben, who was diagnosed as being in a vegetative state for over 20 years, appears to have been conscious the whole time.


Art Caplan argues that the Belgian medical reports strain credulity. But even if they were true, it is unclear that this case would or should ground a fundamental sea change in how patients with serious brain injuries are treated.  We already know that there is a low but significant rate of diagnostic and prognostic inaccuracy.  But that is true of most other areas of medicine (like oncology) as well.  We make recommendations on the best available data -- even though that data fails to speak with certainty to the specific instant patient before us.  


If the chance for error meant we aggressively treat everyone, then we would be over-treating 1000 patients in the chance that it might achieve some level of success for 1.  Of course, while medicine cannot be designed this way, surrogate decisions surely will be affected by the high profile of this and similar cases.  

Palmer v. ETCH -- The Legality of a Tennessee Medical Futility Policy

The Palmer family's Knox County Chancery Court complaint against East Tennessee Children's Hospital is available here.  The family also individually named all the healthcare providers and the members of the ethics committee. 


While an earlier meet and confer letter referenced EMTALA and the ADA, the complaint seeks a TRO and injunction solely on the basis of an alleged violation of the Tennessee Health Care Decisions Act, Tenn. Code Ann. 68-11-1801 to 1815 (which is largely based on the UHCDA).  But exactly how strong is the case under the Tenn. HCDA?


Sure, as the complaint alleges, a health care provider and institution must "comply with a health care decision for the patient made by a person then authorized to make health care decisions for the patient."  TCA 1808(b)(2).  But section 1808 itself is clear that any such obligation holds only "except as provided in subsections (c), (d), and (e)"


Here, it appears that the hospital is invoking (and its "Inappropriate Intervention" policy is based on) section 1808(e):  "A health care provider or institution may decline to comply with an individual instruction or health care decision that requires medically inappropriate health care or health care contrary to generally accepted health care standards applicable to the health care provider or institution."

1808(f) then providers that "a health care provider or institution that declines to comply with an individual instruction or health care decision pursuant to subsection . . . (e) shall:  (1) Promptly so inform . . . any person then authorized to make health care decisions for the patient [and] (2) Provide continuing care to the patient until a transfer can be effected or until the determination has been made that transfer cannot be effected."   This language clealy shows that Tennessee is NOT a so-called treat to transfer jurisdiction.  This is confirmed in 1808(f)(4) which states "If a transfer cannot be effected, the health care provider or institution shall not be compelled to comply."  Immunity is probably available for this conduct under 1811(a)(2). Nevertheless, the complaint does allege that ETCH "interfered" with family attempts to transfer Baby Gabriel to other facilities.  Section 1808(f)(3) provides that "unless the patient or person then authorized to make health care decisions for the patient refuses assistance, [the facility must] immediately make all reasonable efforts to assist in the transfer of the patient to another health care provider or institution that is willing to comply with the instruction or decision."   Moreover, without due diligent transfer efforts, subsection (f)(2) would also not be satisfied because there would be no reasonable basis for a "determination" that a transfer could not be effected.  Since this is a fact question with life and death stakes, the court would probably have granted the TRO.  The hospital had better have documented its transfer efforts.