Comparing TADA and Capital Punishment

I think that my core problem with TADA is captured through an analogy between TADA and the Supreme Court's 1970s problems with capital punishment (in a Texas case of all places).  I was going to start using this analogy, but perhaps it is more distracting than useful, given its very different factual and legal context.  Still, the core due process problems are the same.

Branch v. Texas (1972)

In this case, SCOTUS stops all capital punishment in USA.  It is not per se unconstitutional.  It is not a problem “in principle.”  The problem is “in application.”  Capital punishment was “wantonly and freakishly imposed” because jury discretion was not guided or limited.

Gregg v. Georgia (1976)

Between 1972 and 1976 states amended their statutes.  They specified factors for juries.  They provided for appellate review of death sentences.  In this case, SCOTUS upholds death penalty because risk of error has been constrained. 

Summary
Like SCOTUS, I am not opposed to providers having the ability to refuse desired LSMT.  Like SCOTUS, my focus is on (1) How the decision is made, and (2) Who should make it.  In 1972, SCOTUS was not opposed to capital punishment itself, only to the method used to determine who was sentenced.  Similarly, I am not opposed to a TADA-type law, only to how it is now applied.

May 2010 Trial Over Life Sustaining Treatment for Baby Jada

Summit County, Ohio Probate Judge Bill Spicer recently determined that he has jurisdiction to hear the medical treatment dispute concerning Baby Jada Ruiz.  A trial is set for later this month.  (Plain Dealer)




5-month-old Jada suffered, apparently as a result of child abuse, fractures as well as brain damage "as severe as it can get without actual death."  She is "on life support with . . . no hope of recovery."  Jada's father, who has been criminally charged, wants life-sustaining treatment to continue.  On the other hand, Jada's mother, Deja,  believes that her daughter is already gone and should be allowed to die.


The Plain Dealer says the dispute concerns this question:  "What happens when parents don't agree on whether to take their child off life support?"  One might be tempted to think the question is actually simpler than that because the father's decision making rights are compromised.  Therefore, the mother's decision should be dispositive.  But Ohio law apparently supports parental decision-making rights until after a final adjudication terminating parental rights.  That has not yet happened to the father.

Medicare Cost-Curve at the End of Life

The Center for Practical Bioethics had its annual dinner a few days ago in Kansas City.  I was listening to the presentation by Perry Fine while driving back from law school on Tuesday.  The presentation was titled "The Missing Element in Healthcare Reform: Medicare Cost- Curve at the End of Life - OR - The Economics of Healthcare for Older Americans: From Virtue to Voodoo and Back Again."


Fine provides a good overview of end-of-life healthcare challenges, especially economic ones.  Particularly memorable was Dr. Fine's challenge that hospitals should do what hospices must now do.  Hospices must prove that the patient is terminal to qualify for payment of Medicare hospice benefits.  Why not flip that and make the requirement symmetrical, asks Fine.  Hospitals should prove that the patient is NOT terminal before undergoing expensive, aggressive, curative-directed measures. 

Palliative Care Grand Rounds - May 2010

I am pleased to host Palliative Care Grand Rounds for May 2010.  As last month’s host, Tim Cousounis, more colorfully explained than I ever could, PCGR is a “monthly (first Wednesday) summary, or mash-up, of thought-provoking, timely, relevant, humane, and exceptionally well-written postings from the blogosphere.”  The objective for the instant post is to highlight some posts made to a wide spectrum of end-of-life blogs during April 2010.

Autobiographical Blogs

Both PalliMed and the Hospice Foundation of America’s Hospice and Caregiving blog collect and comment on some of the growing number of blogs written by individuals living through a terminal illness.  Judi Chamberlain ran this blog through January when she died of a lung condition. Other young women bloggers who recently died include:  Eva Markvoort, Alicia Parlette, and Michelle Mayer. 

I never specifically looked for this before, but was surprised at just how many first-person or family member blogs about dying there now are.  Some are collected here at blogcatalog.

The story of one patient, who was also a palliative care physician, has been widely discussed across the blogosphere.  Buckeye Surgeon, among others, discussed a NYT story about Desiree Pardi, who “chose to pursue every means of aggressive treatment, no matter how futile, up until the very end.”

Practical Patient Advice

April 16^th was National Health Care Decisions Day.  The Compassion & Choices blog offers some language to add to your advance care planning documents in case you are admitted as an inpatient to an institution that will not honor your advance directive due to religious, moral or ethics policies.

At the Palliative Care Blog, Angela Morrow explains how and why “death from kidney failure is considered a ‘gentle death.’”  She provides information you need about dialysis, making the decision to stop it, and dying of kidney failure.

At the American Journal of Bioethics blog, Summer Johnson brings our attention, in “Green in Life, Green in Death,” to a funeral alternative eco-friendlier than cremation and burial:  water resolution.

The Hospice and Caregiving blog brings our attention to the Sesame Workshop’s film, “When Families Grieve,” which presents families’ personal stories about coping with the death of a parent, as well as strategies that have helped these families move forward.  An even fuller review is provided by Fresh Widow.

Check out the Checkout Line, a daily online advice column for the terminally ill, and their friends and relatives.  Every day, it answers questions about dying — how it affects you, how to deal with it.

Practical Provider Advice

The American Bar Association Health Law Section has an excellent new podcast (with superb panelists Richard Payne and Charlie Sabatino) titled “Five Big Myths of Advance Care Planning and How to Stay Anchored in Reality.”  This program addresses the five biggest myths that plague advance care planning and how to steer clear of them and make advance care planning more effective.

• People should use their state’s official advance directive form(s).
• Your advance directive should include as specific instructions as possible.
• Advance Directives are legally binding so doctors have to follow them.
• Doing everything possible for dad means keeping dad alive at all costs.
• A written advance directive is better than talk.

Relatedly, the Alive Hospice blog provides “10 Things Everyone Should Know about Advance Care Planning.

Both for those already in the field and those new to hospice and palliative medicine, GeriPal recommends Palliative Care: Transforming the Care of Serious Illness.  The detailed book review described the book as “a whirlwind tour of the history of the hospice and palliative care movement and how it is reshaping the care given to those with serious illnesses”  It is edited by Diane Meier, Stephen Isaacs, and Robert Hughes, and incorporates some of the very best works that the field has to offer.

At Palliative Chronicle, Judy Littleford suggests using Wordle to monitor ongoing symptom burden in selected patients.  Words (e.g. anxiety, pain, nausea) can be weighted to increase their prominence by font, color scheme and layout.

The new blog of the American Academy of Hospice and Palliative Medicine announced AAHPM’s partnership with ReachMD that helps medical providers stay abreast of new research, treatment protocols and continuing education requirements via XM Satellite Radio Channel 160 and online streaming.  Recent programs in the “Perspectives in Palliative Medicine” series include:

• The Challenges to Pain Management in Geriatric Patients – 04/12/2010, with R. Sean Morrison, MD
• Religious Issues Affecting End of Life Care – 04/05/2010, with Richard Payne, MD
• Palliative Care’s Role in Treatment of the Seriously Ill - 03/29/2010 with Russell K. Portenoy, MD
• Warning Shot: How to Deliver Difficult News – 03/22/2010, with Gail Austin Cooney, MD.

Death Maiden describes the “death rattle,” often referred to as "excessive respiratory secretions.”  It was the subject of her nursing dissertation.

Arts & Literature

PalliMed Arts & Humanities reviews (positively) You Don’t Know Jack, the new film about Jack Kevorkian.  “He pleads a sympathetic case for his cause.”

.

Public Policy

Michael Miller, at the Health Policy and Communications Blog, illustrates (through both text and a great cartoon) the challenges of implementing health reform -- how it takes months and years after a law is signed to create the implementing rules and regulations, and to contract with organizations to actually carry out significant parts of the new law.

For the latest on physician aid-in-dying (FKA assisted suicide) developments in Montana and Connecticut, there is probably no better source than the Compassion & Choices blog.

Bernard Freedman discussed funding for physician discussion of end-of-life decisions at Clinical Bioethics Blog.

At his Bioethics Discussion Blog, Dr. Maurice Bernstein collects and reviews three stories in “Looking Back at Terri Schiavo 5 Years Later.” 

He also reprints and comments on President Obama’s April 15^th Memorandum to DHHS to promulgate regulations to protect visitation and healthcare decisions rights of surrogates, including same-sex surrogates.  Carol Levine provides a more detailed analysis at the Hasting Center’s Bioethics Forum.

Next Month

Palliative Care Grand Rounds in June (on Wednesday, June 2) will be hosted at Bedside Manner.  Please submit interesting or enlightening posts by May 28^th to Julie Rosen, Executive Director, The Kenneth B. Schwartz Center (jarosen at partners.org).  The Schwartz Center is an organization dedicated to strengthening the relationship between clinical caregivers and patients.

Betancourt v. Trinitas Oral Argument - part 9

Interestingly, no party in Betancourt cited Suenram v. Society of the Valley Hospital, 155 N.J. Super. 593 (Law. Div. 1977).  While a Law Division opinion is not binding on the Appellate Division, the Appellate Division certainly takes the time to consider the application of such judicial opinions, particularly when published.  Fisher v. Division of Law, 400 N.J.Super. 61 (A.D. 2008).


The holding of Suenram is quite plain.  A terminally ill patient was granted an injunction against a hospital that did not want to provide treatment that it considered medically inappropriate.  The court's opinion ends:  "To deny a person her last opportunity to make a choice as how to combat a disease which has ravaged her body would display a lack of understanding of the meaning od the individual's rights in out free society."


The treatment at issue in Suenram was of uncertain effectiveness.  If a N.J. patient has a right to such treatment, then pro tanto it seems Ruben Betancourt is entitled to treatment (dialysis) of proven and unquestioned effectiveness.  All that was questioned in Betancourt was the wothwhileness of the treatment.  But, in New Jersey, that non-medical value judgment is for the patient himself.

Betancourt v. Trinitas Oral Argument - part 8

Here are some notable excerpts from the oral argument, last Tuesday, as I recorded it in my notes.

Gary Riveles represented Trinitas Hospital.

Court: What role does the family have in the prognosis committee?

Riveles:  They have no role in the committee.

Court:  They do not sit at the table?

Riveles:  It is a medical and ethical decision.

Court:  Should they be involved?

Riveles:  Possibly.

Court:  What should our holding be?

Riveles:  patients do not have an unfettered right to compel treatment.

Court:  Would that be it?

Riveles:  We need a framework.  One is specified at the end of the NJHA brief, a seven-step approach.

Court:  So, the ultimate decisions rests with professionals in the hospital.

Riveles:  Yes, or we can send to outside experts.

Judge:  We may see this type of case in the future, but perhaps next time with a more expansive record and litigants on both sides eager to have it resolved.  And perhaps the next one will not have all the "baggage" here of the malpractice case and the unpaid hospital bill.

Riveles:  This case has a sufficient record.  We'll never get the "perfect" case.

John Jackson represented the NJHA, MSNJ, and CHPNJ.

Jackson:  Before Quinlan, healthcare providers were over-committed to preserving life.

Judge:  But because of the individual's decision.  Under your protocol the ultimate decision maker is the hospital.

Jackson:  The ultimate decision maker is the court. . . .

Judge:  Your own guidelines place a premium on consensus.  So does the Legislature.

Jackson:  The family has a voice.

Judge:  How about a veto?

Jackson:  No veto.

Judge:  What are the parameters of the family's role?

Jackson:  They are consulted, informed, given an opportunity to react.

Anne Studholme represented Not Dead Yet, ADAPT, Center for Self-Determination, National Council on Independent Living, National Spinal Cord Injury Association, American Association of People with Disabilities, and Disability Rights New Jersey.

Studholme argued that the doctors want a "decisional pinball machine" which always returns for them, though after "consultation" with the patient. Her clients want the opposite.  Consultation is good.  But, frankly, if it comes to a fight the current law defers to the patient after consulting with the doctor.

Betancourt v. Trinitas - Oral Argument part 7

I am just about ready to post almost verbatim excerpts from last Tuesday's oral argument in Betancourt.  But I first wanted to make one general comment.  The court seemed preoccupied (for obvious policy reasons, should they go on to decide the arguably moot matter) whether a decision in favor of plaintiff/appellee would be read as granting "unfettered" authority to the patient/surrogate.  

Obviously, the patient's (or the surrogate's authority in effectuating the will of the patient) is not "unfettered."  Rather, it might, in four instances be outweighed.  Those classic instances are (1) the protection of life, (2) the prevention of suicide, (3) the protection of the rights of third parties and (4) safeguarding the integrity of the medical profession.  

The New Jersey Supreme Court has noted that with respect to a patient's decision to terminate LSMT, three of the four above rights will always yield to the patient's right to self-determination.  The only time that an individual patient's decision regarding termination of LSMT can be outweighed is when the rights of third parties will be directly affected by the patient's decision.  Presumably that factor can also outweigh a patient's decision to continue treatment.  


UPDATE:  In my own argument, I noted that three notable "exit options" for healthcare providers include:  (1) physiological futility, (2) transfer, and (3) guardian substitution in a case of proven abuse of authority/duty.  These are vehicles through which providers can escape from a presumptive duty to comply with requests/demands for life-sustaining treatment.  Sure, there may be yet additional "fetters" on patients' rights to demand treatment.  But Appellants themselves describe the question in this case as presenting a "legal, moral, ethical, and medical" dilemma (Def/App brief at 25)  This highlights that the question is not a purely medical one.  Therefore, according to the New Jersey Supreme Court, while the input of physicians is useful, there is no reason to defer to their opinion.

Betancourt v. Trinitas - Oral Argument part 6

The New Jersey Hospital Association posted this "daily message" about the oral argument in Betancourt:

A three-judge panel heard arguments this week in Betancourt v. Trinitas Regional Medical Center, which involves important end-of-life issues. In addition to legal counsel for Trinitas, arguments were heard from NJHA, the Catholic Healthcare Partnership of New Jersey and the Medical Society of New Jersey, which together submitted a friend-of-the court brief on behalf of Trinitas. 

The case involves an appeal by Trinitas from a lower court order which effectively compelled healthcare professionals to provide life-sustaining medical treatment (in this instance, kidney dialysis) indefinitely to a dying patient in a permanent vegetative state, despite medical professionals having determined that the treatment was not medically justified and was against the standard of care.

The appellate court heard oral argument for approximately 90 minutes. John Zen Jackson, from the law firm of Kalison, McBride, Jackson and Robertson, presented the case for NJHA, CHPNJ and MSNJ. Questions from the judges reflected a disparity of views. The principle of patient self-determination and autonomy was emphasized by one, while another appeared to question whether that principle alone was sufficient to compel the hospital and its physicians to continue providing care beyond a point that they believed was appropriate. The court also asked questions about the process for making decisions regarding end-of-life treatment and the role of the family and non-medical persons. NJHA’s joint brief suggested a process for resolution of such disputes, including internal hospital reviews and a procedure for transfers to a different healthcare facility.

Another aspect of the case is whether it should be considered at all by the court in light of the death of the patient as the appeal was being filed, and the lack of interest on the part of his family in continuing to litigate the matter. Jackson, among others, noted that the issue could recur and needed to be addressed now, rather than at a later time.

The court took the case under advisement – its common practice. A decision is expected later this year.

The case was also recently discussed in the New Jersey Law Journal, the National Law Journal, New Jersey Today, the Star-Ledger, and more recently, in Corporate Legal Times.