Rising Number of U.S. Futility Disputes

During dinner at the Brandeis-Princeton-RWJF conference a few weeks ago, the CMO at UCLA said that he sees a futility case every couple of weeks.  Extrapolating 100 cases per year from UCLA to the roughly 3500 U.S. hospitals that provide critical care medicine, one can very very roughly arrive at a nationwide annual figure of 350,000 cases per year.  Moreover, UCLA is, by most measures, a high-intensity hospital.  One might expect fewer futility disputes at such facilities because the aggressive care sought by surrogates is exactly the same care that the staff is happy to provide.  But as high-intensity hospitals are pushed to become lower-intensity hospitals, the rate of disputes is likely to rise.  

What Gary Coleman Case Teaches about Surrogate Decision Making

After Gary Coleman was admitted to the Utah Valley Regional Medical Center, his medical decisions were made by Shannon Price.  The hospital looked to her as his wife.  But Coleman and Price had divorced back in August 2008.  So, the question being asked was: "Should the hospital have looked to Price as Coleman's surrogate decision maker?"  (LA Times)

Coleman had an advance directive appointing Price as his healthcare agent.  Therefore, there is no need to turn to Utah's default decision making laws.  Instead, to determine whether the hospital did the right thing, we must look to Utah's advance directive statute.  The first step of the analysis is to determine whether the divorce constituted a revocation of the advance directive.  Utah Code 75-2a-1113(1)(f) provides that "By a decree of annulment, divorce, dissolution of marriage, or legal separation that revokes the designation of a spouse as an agent, unless: (i) otherwise specified in the decree; or (ii) the declarant has affirmed the intent to retain the agent subsequent to the annulment, divorce, or legal separation."  

In short, divorce does undo the agency of an ex-wife, unless the principal specifically wants to retain the ex-wife as agent.  Did Coleman express any such desire?  He was still living with Price.  Is that enough?  Was the advance directive completed after the date of the divorce?  If so, that would probably be enough.  There are not sufficient publicly available facts to determine whether there was a revocation.  But we can complete out analysis without answering the revocation question. 

Whatever the outcome of the first step of the analysis, the second step is dispositive.  Utah Code 75-2a-1114 provides that the facility can look to Price so long as it has a "good faith belief" that Price has the authority she asserts.  So, at the implementation stage, actual authority does not matter as much as apparent authority.  Price said she was Coleman's wife.  She appeared to be Coleman's wife.  With no reason to doubt Price, the Utah hospital (as with hospitals everywhere) was entitled to trust her representations.

Wall Street Journal on Betancourt v. Trinitas Hospital

Suzanne Sataline has an article in today's Wall Street Journal, "Court Weighs Death Decision," reporting on the Betancourt case.  It is pretty matter-of-fact, and serves as a basic summary of both the facts and of the nature of the dispute.  But one quote caught my eye.

Sam Germana, vice president and general counsel for Trinitas, a 500-bed acute-care institution, said the hospital's ethics committee grappled several times with Mr. Betancourt's care plan. "Our doctors usually err on the side of doing anything,'' Mr. Germana said. "It's extremely rare when they say 'enough is enough, we're just keeping organs alive.' ''

First, the hospital never introduced, either at the trial or appellate levels, any documents or any testimony concerning either the operation of its ethics committee or what it did in this case.  So, we do not know who is on the Trinitas ethics committee (composition, diversity).  We do not know the qualifications of those on the ethics committee (competence).  We do not know how the ethics committee works (procedures, bylaws).  We do not have any minutes from the meetings in this case.  

All we do know from the case is that the Trinitas ethics committee appears to have been under the thumb of the hospital CEO who wanted the very expensive, uninsured Betancourt out of his hospital.  Still, the hospital, NJHA, and MSNJ now want the courts to defer to the decision of ethics committees.  I think this is, in principle, a good dispute resolution model.  But NJ ethics committees are just not ready for life-and-death power.  Analogously, I'll hand over the keys to my new Porsche to the 22year-old valet.  But not if he is visibly drink or stoned.  The courts should not hand over decision making authority until responsibility has been demonstrated.

My second observation about Mr. Germana's comment is that I think it can fairly be restated as follows:  "We usually don't under-treat patients here, we usually over-treat them."  But both extremes pose risks to patients and society.  

New Case - Don Holley

This is not exactly a futility case.  St. Mary's Medical Center in San Francisco actually had consent from patient Don Holley's agent to stop treatment such as CANH.  But his family contends that the decision exceeded the scope of the agent's authority and the hospital failed to provide adequate care in any case.   (ABC SF blog)  The family wrote-up the case for the hospital's ethics committee.  Their concerns are as follows:

• The hospital was too quick to put ninety-year-old Don Holley on "comfort care"; he suffered a stroke, but they say he showed signs of improvement
• The hospital employs an odd version of "comfort care" by withholding nutrition and hydration.  The doctor made it clear Uncle Don would die within two days from the lack of water. 
• A nurse failed to take specific steps that could have saved Uncle Don's life.  He was choking on his own blood from a nose bleed, and some nurses cleared the blood well with the use of suction.  After a shift change, the new nurse failed to suction Uncle Don properly; he died from asphyxiating on his own blood.
• A nurse failed to allow a family member to use the suction on Uncle Don in his last moments. 

Palliative Care Grand Rounds (June 2010)

The June 2010 installment of Palliative Care Grand Rounds is available at Bedside Manner.

Luce "A History of Resolving Conflicts over End-of-Life Care in ICUs in the USA"

In a succinct yet clear six-page article forthcoming in print in Critical Care Medicine, UCSF Medical Professor John Luce provides a nice overview in "A History of Resolving Conflicts over End-of-Life Care in Intensive Care Units in the United States."  

While Luce covers medical practice, he devotes a great deal of his article to a discussion of the law.  While some of it is elementary, Luce actually provides some interesting legal insights.  For example, he observes that at least six futility cases filed in California were dismissed because the plaintiff/patient was unable to secure an expert witness to testify that the defendant physician (who unilaterally stopped LSMT) violated the standard of care.  That legal "signal" (as compared to published appellate opinions, for example) is almost invisible, but is valuable information.  

But Luce is off-base when he predicts that a Massachusetts judge would side with a family in a futility dispute against Boston Children's "given the results of cases like Baby K."  Baby K was decided on a narrow ground, EMTALA, that is almost never applicable in futility cases.  If the patient is in an ICU, she is an inpatient.  Thus, EMTALA is inapplicable, except perhaps in the 6th Circuit (for now). The real reason that a family might probably secure an injunction is because the facts and the law will usually be unclear.  Consequently, the Massachusetts judge would have no choice but to hold the status quo until an opportunity for the submission of additional briefing and evidence.

Unilateral DNR - Barbara Evans v. Leeds NHS Trust

Barbara Evans' daughter was "shocked" to discover that a  DNR order had been written on her mother's medical notes.  She explained, "I was shocked because this issue had never been discussed with either my mother or the family."  (Yorkshire Post, June 1, 2010)

A Leeds Teaching Hospitals NHS Trust spokesman said:

The trust policy states explicitly that in most cases patients should be informed of any clinical decision not to attempt resuscitation. We do discuss cardiopulmonary resuscitation (CPR) decisions with patients and/or their relatives where we feel there is a genuine choice to be made – that is when we think that it could be successful, but even then the patient may not want CPR to be attempted.  Our policy emphasises that, where there is a real, and difficult choice to be made, the patient's view is of paramount importance.

The spokesman further explained:

However we may feel that to attempt CPR would be medically futile, and that there is no real decision for the patient or their relatives to make. Even then, we now recommend that most patients should be told, as part of the process of keeping them informed about the seriousness of their condition.  For some patients, for example those who know that they are approaching the end of their life, information about interventions that would not be clinically successful would be unnecessarily burdensome and of little or no value.  Such patients could be distressed by receiving what could appear to be unnecessary and unhelpful information, in the same way that we would not talk about an operation or other treatment that would not help them.