Saint Louis University School of Law student Katherine B. Ledden has posted (here too) "A Nudge in the Right Direction with a Stick the Size of CMS: Physician-Patient Communication at the End of Life." This article appears in the Saint Louis University Journal of Health Law and Policy, Vol. 6, No. 2 (2013). Here is the abstract:
This paper examines the physician-patient relationship at the end of life and recommends a change to the hospital Medicare Conditions of Participation to remedy many palliative care failures. Most individuals will rely on palliative care at some point in their lives, likely in the form of hospice at the end of life. However, the promise palliative care provides to patients and caregivers has been broken. Perverse Medicare hospice benefits have led to a rise in a for-profit hospice industry, questionable quality, and either very long or very short stays. Additional end-of-life breakdowns occur in the areas of physician-patient communication and pain management.
Two states, California and New York, have passed right-to-know statutes requiring physicians to speak with patients about end of life treatment. Other states are considering following suit and the Uniform Law Commission has considered, and rejected, a right-to-know uniform act proposal. However, questions remain about the enforceability of the acts and after which state’s statue the uniform act might be modeled. This paper suggests that a federal solution would provide a sweeping and uniform solution to the problem of physician-patient communication. A federal legislative solution seems unlikely given the burden of passing a bill in Congress. Instead, CMS should consider revising the hospital Conditions of Participation to encourage physicians to speak with their patients about end-of-life treatment.
Katherine B. Ledden has written a thoughtful paper about a very serious problem ---especially in her state of residence, Missouri, --where UNILATERAL default DNR Code Status (failure of physicians to communicate) would appear to be a serious violation of Missouri law, but which law?
ReplyDeleteWould it be elder abuse? a crime in Missouri, or would it be something worse like murder or attempted murder under Missouri law? Or, would it be merely an ethics lapse ---because, certainly, it is obviously unethical for a physician to shorten a person's life or to attempt to shorten a patient's life without the patient's or the legal surrogate's informed consent --especially when there are negative fiscal considerations for the hospital and the physician if the patient's life isn't shortened. .
While I agree that CMS should use its power to stop the unilateral withholding of life-extending treatments from patients without their informed consent, such a "nudge" by CMS right now might be an admission that CMS knows that physicians ARE using unilateral default DNRs to defend against CMS reimbursement protocols.
I do agree that there should be some kind of federal solution and SOON.
However, I agree with you that the Congress, as usual, will fail to protect the patients and will protect the status quo and for-profit special interests ---even if as bill were to get out of Committee. .
Practicing in NY, the bill works in name only. No change.
ReplyDeleteBesides, even if CMS alters C of P, I dont believe we get any closer to solution.
Brad
As a resident of the State of Missouri, whose late husband and I was a victim of a unilateral DNR, this paper puzzles me.
ReplyDeleteMissouri appears to be a State wherein unilateral DNRs are definitely illegal (a crime) under law, unless deemed futile under some due process procedure approved by the state. .
See Wikipedia who talks about the procedural protection against "SHORTENING OF LIFE" that patients are given under Missouri Law that other states do not provide.
However, there is no case law in Missouri since the 1991 PSDA establishing the unilateral DNR as a crime. Obviously, this isn't because Missouri physicians talk to their patients about end-of-life choices any more than they do in any of the other states who don't have "right to know laws." . .
But, WHY wouldn't physicians in Missouri already have a legal duty to talk to their patients and seek informed consent for either Curative or Palliative Care because of the Missouri Law? .
The writer, however, is concerned that palliative care and Hospice are not working properly and that CMS should require physicians to talk to their patients about end-of-life care as a requisite to reimbursement.
Absolutely, I agree! CMS should mandate that physicians SEEK informed consent from Medicare/Medicare Patients for either palliative care OR Curative Care. Patients do have a Right to Know which standard of care, i.e. Curative or Palliative Care is in their best interests.
Such as mandate would put a stop to overtreatment for profit and under treatment, also for profit, when CMS and the private insurers do not reimburse for errors, mistakes, and non beneficial overtreatments for profit.
But! Professor Pope is right! There has been noise in the Congress about clarifying the PSDA, which would be a NUDGE, but "a federal legislative solution seems unlikely."
It seems unlikely that CMS would (finally) independently exercise their authority under the 1991 PSDA to force these end-of-life talks because the prohibition of discrimination in the 1991 PSDA has never been enforced by CMS because the Congress/CMS envisioned that this was the legal obligation of the states.
What now?