Nevada Enacts POLST Statute

Nevada has just become the latest state to legislatively adopt POLST.  Last week, Nevada Governor Brian Sandoval signed A.B. 344.

In April, Indiana also enacted a POLST statute.  Before that, 18 states already had POLST statutes.  So, if my math is right, 20 states now have POLST statutes.  Other states have implemented POLST through regulations or through clinical consensus.  

POLST Authorizes Unilateral DNAR Orders

In both Maryland and Vermont, a clinician can write a POLST order indicating "no CPR" even without patient or surrogate consent.  Regulations in both states authorize the entry of a "do not attempt resuscitation" order on a POLST on the basis that CPR would be "futile" or "medically ineffective."  This "no consent" option is clearly printed right on the POLST form.

California law similarly provides that while "a health care provider shall treat an individual in accordance with a POLST form," that requirement "does not apply if the POLST form requires medically ineffective health care or health care contrary to generally accepted health care standards applicable to the health care provider or institution."  But unlike Maryland and Vermont, the "no consent" option is not printed on the POLST form itself. 

Nevertheless, this has not prevented California providers from utilizing this option.  For example, Dominican Hospital in Santa Cruz, rewrote a patient's POLST contrary to his prior expressed wishes, apparently on the ground of medical ineffectiveness.  Of course, since the patient was unbefriended / unrepresented, there was little risk that such a decision would be challenged.  It is unclear that clinicians would rewrite a POLST on grounds of ineffectiveness in the face of surrogate opposition.   

Many states have long allowed clinicians to unilaterally refuse (surrogate-, agent-, or surrogate-requested) treatment that is "medically ineffective" or that is "contrary to generally accepted health care standards."  But since there is significant uncertainty about when those standards are satisfied, clinicians have generally declined to avail themselves of such safe harbors.  It is unclear, yet, whether analogous POLST safe harbors will be any more effective.

Clinicians Accede to Surrogate Decisions

It is well documented that clinicians frequently cave-in to surrogate demands to continue non-beneficial treatment.  What I had not focused on is a finding by sociologist Susan Shapiro. 

Clinicians also accede to surrogate requests to stop life-sustaining treatment even when those surrogates lack legal authority to make such requests.  Here is an excerpt from a summary of Shapiro's research:

Shapiro found many reasons why families were so rarely denied the option of withdrawing life support. Often, she said, “patients meet the requisite conditions of the law, or their medical condition is devastating—even if not precisely what is delineated in the law.” Additionally, Shapiro noted, “many physicians don’t know the law or don’t know the difference between a power of attorney and a default surrogate.” Finally, Shapiro found, “physicians don’t insist on seeing the advance directive document and follow whatever the family says is in the document,” nor will they stand in the way of the “wrenching decisions made by grieving families.”

New Book Review of WRONG MEDICINE

Wrong Medicine: Doctors, Patients, and Futile Medicine remains the best book-length treatment of medical futility and non-beneficial treatment.

Last year, I reviewed the second edition in the American Journal of Bioethics.  This week, Robert C. Young posted a new book review of Wrong Medicine to Oncology Times.   

Edmund Pellegrino Has Died

Edmund Pellegrino, one of the world's most distinguished bioethicists, has died at 93.  He would have turned 94 next week.  

I was luck to intersect with him at Georgetown University and then later at the President's Council on Bioethics.

New Hastings Center Guidelines on Medical Futility

The new Hastings Center Guidelines for Decisions on Life-Sustaining Treatment and Care Near the End of Life do not have very much useful guidance on medical futility disputes.

Page 14 provides:  The right to refuse treatment does not establish a right to demand any and all treatment a patient or surrogate chooses.  The goal of respect for persons should not be reduced to "do whatever the patient wants" or "do whatever the surrogate thinks the patient would have wanted."

But any details on this proposition focus only on 

• "the misuse of resources that have no prospect of benefiting a patient." (page 16)  
• "treatment burdens without possibility of benefit" (page 57)
• "treatment that cannot provide physiological benefit" (page 57)

Those truly "futile" situations are the extremely rare "easy" cases.  Where are the Guidelines on the hard cases that actually arise in ICUs?

On the other hand, the Guidelines do usefully recommend "time-limited trials" (page 55).  They recommend avoiding the phrase "doing everything" (page 56).  And they contain many other good tips on communication and establishing/reviewing goals of care that should help avoid conflict.

A Nudge in the Right Direction with a Stick the Size of CMS: Physician-Patient Communication at the End of Life

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.

Open Forum on AMA Code of Medical Ethics

The AMA Council on Ethical and Judicial Affairs (CEJA) will conduct an Open Forum on Monday, June 17, 2013, from 9:30 a.m. to 11 a.m. at the Hyatt Regency Chicago, Columbus C-D.

The Open Forum is open to all AMA members, interested non-members, other guests, and the press.  Open Forum attendees are invited to introduce emerging ethical issues that may warrant attention from CEJA and inclusion in the AMA "Code of Medical Ethics."

Aid-in-Dying: Is Terminal Illness a Prerequisite?

Dr. Philippe Freiburghaus prescribed sodium pentobarbital to an 89-year-old man suffering unbearable pain who had tried to commit suicide.  But Swiss prosecutors said the doctor had “crossed the line” by failing to follow the legal regulations.  “In prescribing this drug he did not respect the ethical directives, namely the presence of an incurable illness and a short life expectancy."

But just a few weeks ago, the European Court for Human Rights held that Swiss law violated the Convention, because it lacked "comprehensive and clear guidelines on whether and under which circumstances . . . someone not suffering from a terminal illness should be granted the ability to acquire a lethal dose of medication."

To be clear, the ECHR said that it is up to Swiss law to determine if a terminal illness is required.  But authorities must make the rules more certain one way or the other.  Perhaps Swiss authorities will develop an alternative safeguard that will permit them to dispense with the "terminal illness" requirement.

Hospital Ethics Committees: Coordinating across Institutions

I was pleased to read that these two New York hospitals coordinate some of their ethics committee activities.  The ethics committees of St. Elizabeth Medical Center and Faxton St. Luke’s Healthcare "meet jointly every month to discuss ethical issues, which are similar at both hospitals."  

I am looking for more examples of multi-institutional ethics committees.  I want to bolster my argument that this is the best way to balance responsiveness and fairness for issues like decision making for the unbefriended and adjudicating end-of-life conflicts.  

Rodger William Kelly Had Sex with Unconscious Neighbor to "Save Her Life"

Rodger William Kelly was charged with the rape of his unconscious neighbor.  But he claims that he only had sex with her in an attempt "to save her life."

Kelley told Utah police that he found his 29-year-old neighbor unconscious and began to have sex with her because "he was trying to save her life."  "He said he did place [his penis] inside of her to try and get her temperature up," police said in a probable cause statement filed in 5th District Court.  (Int'l Bus. Times)

Utah has a Good Samaritan Act that provides "a person who renders emergency care at or near the scene of, or during an emergency . . . is not liable . . . ."   But the Act shields only civil, not criminal, penalties.  Moreover, for immunity, the defendant must render the care "in good faith" and cannot be "grossly negligent."  It seems unlikely Kelley satisfies those conditions.

Lana Barnes, Surrogate in Futility Dispute, Convicted of Medicaid Fraud

Lana Barnes was the surrogate in the most famous medical futility case in Minnesota.  

She insisted on non-indicated treatment at many Minneapolis area hospitals before one hospital challenged her in court and had her replaced as her husband's substitute decision maker.  

Last week, Lana Barnes was convicted of Medicaid fraud in connection with her husband's care.

Man Oppressed by the Triumphs of Medicine

I enjoyed "The River" by James Guglielmi, yesterday, at the Art Institute of Chicago.  You see 4 women alongside the expanse of blue water, hemmed in by a monolithic concrete riverbank with an industrial landscape in the distance.  There is a vivid contrast between the natural and man-made landscapes.  One critic noted that Gugliemi's work suggests "the theme of man oppressed by his own great triumphs."  

This resonates with the all-too-common theme of the dying patient in the ICU "oppressed" by the triumphs of medical science.  In both the Gugliemi scene and in the ICU, we have developed some awesome technology.  But we too often let it get out of control and detract from a natural and enjoyable life.