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11/04/2017

BioethicsTV (October 29-November 3): Decision-makers, Boundary Issues; Errors; and Double Effect

by Craig Klugman, Ph.D.

The Good Doctor (Season 1; Episode 6): Who Chooses; Experimental Treatment; Boundary Crossing; Hiding Errors

A bus crash carrying a wedding party leads to a mass casualty incident. The result is three ethical dilemmas. In the first, the unconscious groom has a shattered femur and a dying leg which would normally mean amputation. But Murphy decides that he can 3-D print a titanium femur bone to replace it. The procedure carries a 10% risk of death. The doctors ask if he has an advance directive or at least a medical power of attorney, which he does not. He is an hour from being married which means that his fiancée is not yet his wife. Under California law, the parents are his decision-makers. The parents do not want to take a 10% risk of death and so decide for amputation. His fiancée says that he is an active person and would want to save the leg. The attending surgeon says that in this circumstance the parents have legal authority to make the choice and amputation is scheduled. Meanwhile, the hospital attorney calls for a judge to hold an emergency hearing to decide who makes the choice. The viewer learns that the fiancée has some information that the parents do not and vice versa. The attending surgeon finds the entire situation uncomfortable as he is looking for some lines, some clear guidelines: “There needs to be bright red lines.” According to him, if the law says the parents make the decision then what they want rules. As time runs out and surgery must happen, the judge states that the parents knew the boy but the fiancée knows the man and orders the femur replacement surgery. The surgery is successful and a conscious patient is thankful for his life and his leg.

In reality, with limited time, a clear line of who is the legal decision-maker, and surrogates making a decision that they feel is in the patient’s best interest, most hospitals would likely go with that decision. Besides, the other choice was experimental—no IRB approval, no animal studies, no consent. What this storyline demonstrates is that the legal decision-maker is (a) not always the person who knows the patient the best and (b) not always the person with enough objective distance to make a substituted judgement, rather than an emotional one.

A second patient has severe burns across her throat, neck, and one arm. She knows that a first-year resident, Kula, is working on her and she is concerned that he is not giving her the best treatment possible. In fact, she realizes that her burned skin disgusts him as he initially is unable to look at her. Her remonstration prods him to do better. He finds research suggesting that tilapia skin may be better at healing burns than human skin or artificial covers. Kula informs Melendez, his attending, who appreciates the passion but tells him that to do such an experiment would require IRB approval (Of course IRB approval was not brought up for the experimental femur replacement, so it seems incongruent to bring it up here). Melendez says that it would not be possible to shorten the IRB review timeline from 3 months to 2 hours.

Later, Kula reports that another hospital had a multi-site IRB approval and that they were sending medical grade tilapia skin on a helicopter. Because it was IRB approved there, Kula says, such review was not needed at their hospital. Under the new IRB common rule guidelines, that would technically be true but the local IRB would still need to be part of any agreement. The fish skin is applied and the patient is pleased. However, in the closing scenes, the viewer learns that Kula is wealthy and that he made a personal donation to the hospital that sent the fish skin. His attending warns him that Kula crossed a line and he has to be aware of it. Kula used his wealth to influence the other hospital to send the skin, and to enroll a patient in a clinical trial. Such actions would be a violation of most any research protocol. Thus, while the discussion of an IRB was a nice touch, the way this played out lacked any discussion of patient consent and clearly violated professional and protocol boundaries.

In a third storyline, Brown finds a patient at the bus crash site who has a blown pupil. She intubates the patient and uses a drill to make a bore hole to relieve blood bleeding into the brain. At the hospital, the ER triage doctor adjusts the intubation tube and sends the patient to surgery. Brown assists in clamping off the bleed. The patient, however, has no brain activity. Glassman, hospital president and neurosurgeon, determines that the problem was the intubation tube was too far into one lung, a lung that was compromised. Thus, the patient’s brain had been without oxygen for too long. Brain death was caused by a medical error. So far, so good. However, at that point, he tells Brown to go home—that she is not to speak with anyone about this error. They will not tell the patient’s spouse, nor their colleagues what happened. In reality, a medical error is an event that should be reported: (1) The incident is a teachable moment and might be a good case for a Morbidity and Mortality rounds. (2). Covering up a medical error can be more harmful to the physician and to the hospital. (3) Data shows lower rates of lawsuits when errors are explained and an apology is offered. (4) Telling the patient’s spouse will require a lie of either commission (telling a story that deviates from what happened) or omission (leaving out details—such as the incorrectly placed tube). Thus, sweeping the error under the rug is not an ethical choice.

The Good Place (Season 2; Episode 7): Double Effect
In this week’s episode, the comedy about ethics focused on the idea of Double Effect. When several characters struggle to determine whether they could (a) break up a marriage and (b) break up a relationship with a person created by an after-life android (you have to watch to understand), Chidi offers Double Effect as a way to make decisions emphasizing that the good outcome must be the intention. At the end of the episode, demon Michael asks Eleanor, “Being ethical is hard. And I kind of hate it. When does it get easier?” Her response is that when you do the right thing, the little voice in your head telling you that your intended action might not be the best choice goes away. This explanation is a way of saying that it become a habit that you no longer have to think about. Her answer would make Aristotle proud.

Grey’s Anatomy (Season 14; Episode 6): What would you do doctor?
Grey’s patient is a judge with advanced liver cancer. He is not highly ranked on the UNOS list and has no more than 7 months life expectancy. She offers a procedure to tie off the sick part of the liver so that it dies and then to remove it. The surgery has not been performed often. When the judge reads the consent form, he is concerned at the high risks involved, including death. He is concerned that the procedure is to forward Grey’s reputation rather than be the best for him. The judge questions whether he should do the procedure and asks Grey what she thinks. Her response is that she legally cannot make the decision for him or tell her what she thinks. Her resident, Wilson, however, has no such qualms and says that she would trust Grey and the surgery is his best chance. Later, Grey talks to the patient alone and apologizes for her resident, saying that she acted unethically. The judge responds, “I signed the consent, so your covered, legally.”

The judge then says that he signed because his deceased wife would have wanted him to. That when she was dying, she would have grabbed onto any opportunity for a chance. So, that’s why he was signing, not because the resident said to. When in surgery, Wilson asks why she was not reprimanded for her unethical action. Grey says, “Because it worked; He’s on the table.” Then she tells Wilson that she knows what she did was wrong, so the message was learned.

In reality, there is no law that says a patient cannot make a recommendation or share an opinion. Many physicians choose not to, so as to be sure that they do not unduly influence a patient’s autonomy. However, some have questioned whether the emphasis of autonomy has gone too far, and that given their expertise and experience, that physicians should provide more guidance. Thus, it is not clear that the resident violated ethics, since this issue is in question. However, if Grey felt that her resident had acted unethically, she should have explained this to the trainee and she should not have indicated that the action was forgiven because the desired end was achieved. The ends do not justify the means.

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