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Posted on January 26, 2018 at 2:48 PM

by Craig Klugman, Ph.D.

The Good Doctor (Season 1; Episode 13): Lying to protect and an abused surrogate

After a resident puts his hand on a patient’s arm, she asks him not to touch him. Kalu says that many cultures have taboos about touching, especially by a male doctor. During a bronchoscopy, Melendez, the attending, punctured her bronchus which necessitated a surgery to repair it. Murphy reports the error because the rules say he should. Mendez defends himself by saying he did nothing wrong. When it seems that she came into contact with caustic chemicals, the treatment is ethanol. She refuses because as a follower of Islam, she does not drink. Murphy thinks she is a terrorist and Melendez points out that being Islamic does not mean one is a terrorist. Murphy talks to the patient and accuses her of building weapons: She explains how difficult it is to live where everyone sees you as a danger just because of your color.  She recovers and it turns out that the patient received the chemical from her brother who gave her samples from his pharma sales job: She was using the chemical to make perfume and lied in order to protect her brother from getting fired (and probably arrested).

In a second storyline, a 28-year-old patient arrives in the ED having his second stroke. He has an aneurysm repair and then needs another two repaired. The surgery is likely to leave him with deficits. The alternative is that he will die. His wife says no to the surgery because he struggled to recover from his first stroke and found the process painful and frustrating. The wife tells the doctors, he made it clear he would not want to live compromised.

Later Browne discusses the case with Murphy who believes the wife is lying: “If you love someone, you’ll do anything to prevent their death.” His statement is a bias of the medical attitude that if there’s something to be done it should be done and that death is the worst possible outcome. The task of the surrogate decision-maker is to make the choice that the patient would have wanted, not what the surrogate or even the doctor wants. Making a choice for another that goes against your own wishes and interest requires a unique type of bravery and one that is essential for helping unconscious patients have their wishes followed. Browne talks to the wife and says the reason for letting the patient die is either a great love or a great hate. As we learn, the patient has abused his wife who believes her son is better off with “the memory of a loving father than the truth.”

Another surgeon says that she is going to perform the surgery. Browne points out the lack of consent. The surgeon explains that technically the problem is that they do not have his consent. Since they cannot get his, they go to the wife who is supposed to make decisions in the patient’s best interest. “I’m pretty sure that isn’t happening here.” Her instructions to Browne are to get the wife’s consent or the hospital goes to court. The resident is pressured to change the wife’s mind—to be a coercive influence on the decision-making process. Browne approaches the wife again and basically blackmails her: Sign the consent or we go to court and all of her secrets (i.e. history of abuse) will come out, and be known by the son. Such behavior by a medical professional is unacceptable: To use the secrets that a patient or family member has shared to manipulate that patient to action is a gross violation of the patient-provider relationship. The wife consents because she has no choice. Since the permission was given under duress, there is not actual informed consent; a technicality that the show will likely ignore. Remember that a signature is not consent. This would have been a good place to call for an ethics consult. Going to the judge and asking for a different surrogate would have been a better option even if it took a little more time.

The show reveals that the patient’s condition was caused by the son, who knew what about the abuse and to protect his mother had been changing out the medication in his dad’s pills for an innocuous substance. The father is saved, but when Browne goes to the waiting room to give them the news, the wife and son have disappeared.

Chicago Med (Seasons 3; Episode 8): Right to Die and Charity Care

In the first storyline, Choi carries a woman into the ED who collapsed 2 blocks from the hospital. She is 5’6”, 70lbs and with a BMI of 11. She has suffered from anorexia for at least 15 years. Charles talks to her as a psychologist and is able to get her to agree to receive 3000 calories through an NG tube. However, when the nutrition is being deliver, the patient pulls out the tube and refuses the nutrition. Instead, she asks for her attorney. We learn that she has prepared paperwork to make sure that no nutrition could be forced on her even if the result is her death. The patient codes and Choi begins CPR. Quickly, her parents ask him to stop because she has suffered enough. This case is probably based on a NJ case where a woman won her case to not receive a feeding tube and to remain in palliative care. Such cases are usually upheld in court because people have a right to refuse medical treatment.

The second storyline concerned a young female comedian who has fallen on a train platform after taking the stairs caused her shortness of breath. She also has been suffering from back pain for a while. While her arm is not broken, her back pain is actually a renal carcinoma that has spread and entered into one of her heart atria. We learn that she lacks health insurance but since the condition is life threatening, Medicaid will pay for her surgery. Post-surgery, she complains of pain in her shin. This is caused by a second tumor, likely in her bone. However, since this tumor is not life-threatening Medicaid will not pay. Goodwin schedules the patient for transfer to [Cook] County Hospital where she can receive charity care since Chicago Med hospital will not pay the $200,000 to cover the cost of treatment. Rhodes protests and eventually donates from his personal fortune enough money to cover the patient’s care. At the end of the episode Goodwin suggests that he be careful because the patients and the need will not stop coming and while he may be rich, he can’t possibly pay for everyone’s medical needs. Empathy is an important value in physicians but there must be limits: A physician cannot lose himself in caring for patients nor is a physician obligated to work for free or to pay for the treatment of their patients. Providing some charity care is noble, but too much and the physician may end up being the person in financial need.

Grey’s Anatomy (Season 14; Episode 10): Inappropriate Surrogate Decision-Makers

In this episode, a man is in a persistent vegetative state after a car crash (well, technically he only has a concussion after the crash but in trying to rise from his hospital bed to attack his fiancé and his wife, he trips and cracks his head on the corner of the bed leading to PVS). His fiancé has just announced that she is leaving him because he is abusive toward her. A decision needs to be made whether to continue his body sustaining treatment or to withdraw support. When the doctor tells a resident to explain the options to the fiancé, they all realize that Jo, a resident who left an abusive relationship with this man a decade before, is still married to him and thus legally has the burden of making his decisions (He had come to the hospital to have her sign divorce papers). She inquires whether he was still fanatical about his health. When the fiancé says yes, Jo decides to remove him from life support and donate his organs. Her hope is that even though he hurt many people in life, that his death could help make other’s lives better.

What is interesting about this scenario is that on occasion, the legal decision-maker for an incapacitated patient is a person who does not really know him or her. Consider the long-estranged spouse who never got around to a divorce or the child who has had no contact with a parent for decades. In most states, if a person has not designated a medical power of attorney, there is a hierarchical list of decision-makers who take on that role. However, this default surrogate may not have known the patient for decades, may not know what the person was like in recent years, and may not even know what the person valued. A default surrogate can decline to serve in that role and then the next person in the list would take on the responsibility. Such surrogate lists, while helpful in most cases, can lead to a person who does not know the patient, or even who wishes the patient ill, to legally make decisions. In one case I recall, the default surrogate was an estranged spouse who when told that the patient was likely suffering and would not have any improvement was excited at the idea that her husband—whom she deeply hated—would spend years in pain. Realizing that she was not the appropriate decision-maker, we had to go to court to have someone else appointed.

This same oddity of law also means that a fiancé, who presumably knows the person very well, cannot be a surrogate decision-maker. In fact, because there is no legal relationship with the patient, unless the patient made prior arrangements, health care providers telling the fiancé any information is a confidentiality violation. One of my haunting cases is a couple who are engaged and 18 years of age who had a car wreck. She was pregnant and several decisions needed to be made regarding their treatment. Although the fiancé could explain what was important to her, he had no legal right to be making these decisions and technically should not have been given any of her health information.

This storyline explains why it is important to have a medical power of attorney form completed—so that the decision-maker is someone who knows us well and is someone who cares. The law can be a blunt tool and determining a decision-maker can require a bit of finesse. This may be why some states do not have a surrogate list but provide for a dynamic method of figuring out who makes the choice (such as Colorado), an approach which has its own set of problems. When a fiancé cannot make decisions but an estranged spouse with ill feelings can, then there is something wrong.

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