Tuesday, September 2, 2014

Overemphasis on Errors of Unwanted Death Exacerabate Errors of Unwanted Life

In preparing for a talk in Michigan this week, I was refreshing myself on some of the key health care decisions laws from that state.  One of the most significant is the Supreme Court's 1995 decision in In re Martin.  I love this quote:
The decision to accept or reject life-sustaining treatment has no equal. We enter this arena humbly acknowledging that neither law, medicine nor philosophy can provide a wholly satisfactory answer to this question.
To err either way has incalculable ramifications. To end the life of a patient who still derives meaning and enjoyment from life or to condemn persons to lives from which they cry out for release is nothing short of barbaric. If we are to err, however, we must err in preserving life.
Many judges have made similar observations about balancing errors of unwanted death against errors of unwanted life.  Perhaps the most famous was by Justice Brennan in Cruzan.

But must the resolution of this tension always be to err in favor of life?  Mountains of evidence indicates that errors of unwanted life swamp errors of unwanted death by exponential proportions.  How many must suffer to mitigate the chance that one might die too soon?  We have surely long surpassed that number.      

1 comment:

Carol Eblen said...

I find myself disagreeing with your premise and assumption that there has been an "Overemphasis on errors of unwanted Death" that "exacerbates- errors of unwanted Life" because, of course, this is not true, in my opinion, when you are talking about the elderly/disabled on Medicare/Medicaid insurance.

It may be true about young persons who are thought to be brain dead, etc., but whose physical body is sustained with life support technology. THIS, of course, is always NEWS that is sensationalized for the public.

However, Unilateral covert and overt DNR Code Status, in my opinion, is inappropriately misused widely to hasten the death of the elderly/disabled for fiscal expediency of the hospital. While this is often done under the guise of "medical futility" or "compassion" this isn't always the case, is it. And, especially so, when there are NO procedural protections for the patients against the unilateral entry of DNR that hastens death. This unilateral DNR is often the physician/hospital's defense to punishing reimbursement protocols that withhold reimbursement. .

Starting in 2005, the elderly and the disabled have been targeted for end of life savings because of the co-morbidity factors of age and disability together with the pay for- performance initiatives embedded in the Medicare/Medicaid reimbursement protocols starting in 2006.

However, neither Congress nor CMS have moved to mandate that physicians SEEK informed consent for "curative care" as opposed to "pallative care/hospice" from their elderly/disabled patients in the informed consent process.

Isn't this failure of Congress to clarify the intent of the 1991 PSDA for the States the reason there have been so many new state laws that vary in the manner in which "code status" is treated under the State laws.

Isn't the failure of the Congress to clarify the 1991 PSDA for the States the reason so much "over treatment" of Medicare patients in the outpatient setting for the profit motive was encouraged and enabled?

Certainly, CMS and Congress intentionally created another legal "standard of care" to be employed in End-of-Life situations when they passed the 1991 PSDA at the request of CMS?

Under current law, those patients who are "terminal" and who want to shorten their lives to shorten their suffering by refusing life-extending treatment are legally free to do. Why do you say "how many must suffer to mitigate the chance that one might die too soon?"

Aren't you confusing the issues? Isn't autonomy and choice central to the issue and isn't this what the higher court said in Cruzan?

Are the elderly/disabled on Medicare/Medicaid deprived of "personhood" at a certain age and stage while on Medicare/Medicaid? When hospitalized, can their lives be shortened without their informed consent and without due process of law? .