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02/24/2017

BioethicsTV: Substituted Judgment

by Craig Klugman, Ph.D.

On Grey’s Anatomy (Season 13, Episode 14) two cases lead to questions about who makes decisions for patients. In the first story, a young woman wanders into the ED disoriented and talking about snakes in a hat to denote to the viewer that she has a mental illness and lacks capacity. She is filthy, homeless, and lacks identification. The woman collapses because her very old pacemaker malfunctions. Two cardiologists in the room agree that she needs the surgery and this is all that the viewer sees of consent. There is no interaction with social work or calls to the police to identify her, to look for missing persons reports, or to circulate her image and description. The doctors consent for her. In most real life situations, two doctors can only consent in the event of an emergency (i.e. likelihood that she would die or suffer permanent disability in the next few hours). We are not privy to other medical options that might have been tried on a temporary basis such as transcutaneous pacing, atropine, using a magnet on the device, and even cardioversion and defibrillation that would buy time to try to learn her identity. It is not made clear to the viewer that this is an emergent situation.

Many states have surrogate decision-making laws that provide a list of people who can make decisions in the event that a patient cannot. Since this show takes place in a fictional Seattle hospital, Washington State law would guide decision-making. Under RCW 7.70.065, the list of surrogate decision-makers (in order of priority) is an appointed guardian, a durable power of attorney, spouse or domestic partner, adult child, parents, and adult siblings. The health care provider is supposed to “make reasonable efforts to locate and secure authorization from a competent person” on the list to consent to medical procedures. The only efforts in this regard that the viewer sees are after the surgery, when the identification number on the old pacemaker is traced. That effort leads to finding the patient’s parents, who have not seen their daughter in 12 years.

In the absences of the individuals on the surrogate list, a court can grant emergency permission and appointment of a guardian ad litem. If the situation is a true medical emergency, then under Washington law, consent is implied and the procedure may proceed.

If the surgery was emergent, then the show made an accurate representation. If, however (and most likely), replacing a pacemaker could have waited a bit, then efforts should have been made to identify the woman and her family, and to seek permission from a court.

 

In a second storyline, a mother is donating her kidney to her teenage son. He has been on dialysis for a while and has lost his last possible access site meaning without the transplant he will die (so we are told). When the kidney is removed from the mom, it is brought to the son’s OR. However, an unseen clot has formed in the mom’s remaining kidney, killing it. The kidney has not yet been transplanted into the son. The question that the doctors debate is with two patients and one kidney, who gets the kidney? This is not a scenario that a doctor would normally discuss with patients.

For the son, without the kidney, he dies as he cannot get dialysis anymore. The mom did not go into surgery expecting that she would come out needing dialysis or a transplant of her own. The doctors state that if the kidney had been even partially attached to the son, then they would have let him keep the kidney. Those physicians with children say that any good parent would want their child to have the kidney. Others respond that the child would feel guilt and an obligation to take care of the now sick parent. Calls to UNOS find no available, matching organs and the clock is ticking on the viability of the kidney. The acting chief decides that the son gets the kidney.

A new wrinkle erupts when the boy’s father is in the waiting room and overhears calls to UNOS. He has been removed from the patient rooms because it turns out that the mother and son left him a year ago because he was abusing them. There has not been a divorce. By the law, he is the decision-maker for his son and since he is still married to his wife (who did not file a police report), he is the next in line to be a surrogate decision-maker for her as well. No one asks him, however, because their moral outrage at his abusing them overrides their notion of law and even ethics. They feel that he has no moral standing for making these decisions. Ethically though, he is someone who knew them and they should have discussed the situation with him and gotten his input. Even if they decide that he gave up his right to make these choices (which is not a given) because of his past behavior, he certainly knows the patients better than the physicians who scarcely know the mother and son.

Instead, he says that he wants to donate his kidney to the son. Lo and behold, he is a good match. One physician who has fled her own abusive marriage does not think that the father should be permitted to donate. She fears that he will use the donation as a way to get back into their lives and could cause them great harm in the future. The prevailing ethics, though, is utilitarianism with the utility being savings lives. To paraphrase Dr. Robin’s reasoning: You decide in the way that saves the most lives.

Mom gets back her kidney and the son gets dad’s kidney. The father makes his donation anonymously and agrees to not use donation as a way to get back into their lives.

 

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