The 12-page Court Decision in the Albert Barnes Case

I posted, here, the court's decision in In re Guardianship of Albert Barnes (Hennepin County, Minn. Probate Court, Feb. 4, 2011).

Wife Loses Status as Substitute Decision Maker for Husband

A Hennepin County judge has taken medical decision-making authority from the wife of 85-year-old Al Barnes, calling her "deceiving" and rebutting her claims that his severe dementia and other conditions are reversible.  (Minneapolis Star Tribune)  

"He is dying, slowly and painfully," the ruling stated. "The evidence before the court establishes that no amount of medical care and treatment is going to change that."  Alternate Decision Makers, a Minneapolis firm, will remain as emergency guardian for Barnes, at least until a March 3 hearing, when a permanent guardian is named.

Mother Opposes Hospital Stopping Life Support for 8mo old: McKay v. St George's Hospital

Jade McKay's eight-month-old son, Zakkari Johnson, weighed only 1lb 3oz when born and was not expected to survive 24 hours.  (UK Sun)  He had three major operations to treat chronic lung disease.  But mother Jade has been told that doctors plan to take baby Zakkari off his life support system.  Jade vowed last night she would take them to court in a bid to save his life.

“He’s fought so hard to be here. When I looked into his eyes I knew he had it in him to survive. If they take him off life support he’ll die, I can’t understand why they want to kill my baby"  St. Georges Hospital explained: “This baby has been receiving intensive care support since birth. He remains critically ill and our clinicians will continue to meet with the family.”  (UK Mirror)

Bad, Bad Surrogate

It is one thing for a surrogate to not protect the patient's preferences and best interests.  There was already significant evidence that Lana Barnes was just that type of unfaithful surrogate.  But testimony at yesterday's hearing shows that she actually took things one step further.  (Star-Tribune)  Lana deliberately altered and/or destroyed her husband's 1993 advance directive.  She produced only the part appointing her as agent but not the instructional part that indicated he would not want the aggressive treatment he is now receiving.  

Technically, the 1993 advance directive was void in any case because Al Barnes had completed a 1994 advance directive.  Minn. Stat. 145C.09.  Nevertheless, this still makes Lana looks like a very poor choice for guardian, as she appears to have committed a felony.  Minn. Stat. 145B.105 provides:

Subdivision 1. Gross misdemeanor offenses. Whoever commits any of the following acts is guilty of a gross misdemeanor:

(1) willfully conceals, cancels, defaces, or obliterates a living will of a declarant without the consent of the declarant;

(2) willfully conceals or withholds personal knowledge of a revocation of a living will;

(3) falsifies or forges a living will or a revocation of a living will;

(4) coerces or fraudulently induces another to execute a living will; or

(5) requires or prohibits the execution of a living will as a condition for being insured for or receiving all or some health care services.

Subd. 2. Felony offenses. Whoever commits an act prohibited under subdivision 1 is guilty of a felony if the act results in bodily harm to the declarant or to the person who would have been a declarant but for the unlawful act.

Remove Ethics Committee Immunity

Robert Painter proposes removing ethics committee immunity for decisions to unilaterally withhold or withdraw life-sustaining treatment.  (Interestingly, things seem to be moving in just the opposite direction.  A new Texas bill, H.B. 531, would actually EXPAND provider immunity for noncompliance with patient wishes and instructions.)  

Following Painter's suggestion and removing immunity would go a long way toward putting Texas in much the same situation as every other state.  That is, given serious uncertainty over the standard of care with respect to inappropriate and non-beneficial treatment, most providers will be chilled from writing unilateral stop orders.  Even in malpractice-reformed Texas, they will be too afraid of ex post facto sanctions or at least of proceedings and legal process.

I do not think that removing immunity is essential to reform of TADA.  The internal process can be improved as proposed in 2007 and 2009 bills.  But the prospect of addition, external review would make the process more fair.  This could be a second-choice alternative to improving the quality of the ethics committee review process.

Barnes v. Methodist Hospital -- New Strong Evidence for Hospital

Today was the second hearing in the Minneapolis, Minnesota dispute between Lana Barnes and Methodist Hospital over the treatment of Barnes's husband and Methodist's patient, Al Barnes.

Jeremy Olson reports that today's testimony revealed Al has an additional health care directive saying that he did not want a feeding tube or other extraordinary measures if he were in a terminal condition.  That advance directive states:  “If at such times there is no reasonable expectation of my recovery from extreme physical or mental disability, I direct that I be allowed to die and not be kept alive by ventilators, artificial means or ‘heroic measures.’”  Even though Barnes has been in the hospital's care for more than a month, Methodist did not have that document.  

In addition to the document, James Barnes, Al's son from a prior marriage, said that he and his father had discussed end-of-life scenarios.  “We’ve had conversations (where he said), ‘I do not want to live on a machine, that’s not living,’” James Barnes testified. “I believe Lana is doing what she believes is right, but it is not my father’s wishes.”  (Fox News) 

This new evidence seems to substantially strengthen the hospital's already good case.  Pursuant to Judge Maus’ order in January, Al is already under the temporary guardianship of a professional guardian service.  That arrangement may soon become permanent.

World's Oldest Person Dies in Texas

Eunice Sanborn, the world's oldest person, died yesterday at the age of 115.  (NY Daily News)