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BioethicsTV (January 8-12, 2018): Convincing Patients to Consent; History of Sterilization

by Craig Klugman, Ph.D.

The Good Doctor (Season 1; Episode 11): Coercing Consent

A pair of conjoined twins are in the hospital for a kidney transplant from one twin to the other. In 6 months, they are scheduled for separation surgery which is challenging because they share an intertwined brain vasculature. Post kidney surgery, one twin goes into cardiac failure as the load on her heart is putting a strain on her body. The answer is to move up the separation surgery to the next 12 hours. Both twins are about 18 years of age (since both are about to enter college) and their mother has said that all medical decisions are theirs and theirs alone. The twins decide to go ahead and have the surgery. However, in the middle of the night, one twin tells resident Brown that she has changed her mind and no longer wants the surgery. A quick meeting of the resident, attending, chief of surgery, neurosurgeon and in-house counsel revolves around how to convince the twin to change her mind back to having surgery. One concern is that if the twin with heart problems should die, then the hospital would be liable since the problem did not manifest until after her kidney donation surgery.

The attending surgeon says that he will talk with the twins, and the counsel tells him, no, that he should not. Because he was the inventor of the surgical technique, his conversation might be seen as biased and coercive—he has a vested interest in the surgery taking place. Instead, the decision is that Brown, the resident, should speak with the twins because “she communicates better than all of us.”

While this discussion is a brief part of the episode, it highlights an interesting conflict of interest: Does a surgeon consenting patients for a surgical technique that she or he invented have a bias? The surgeon has a vested interest in performing the surgery: A chance to prove the technique, to demonstrate his/her mastery, and to earn professional accolades for surgical innovation and prowess. In general, consent should be requested by the person performing the procedure because that person can best explain the process and what the patient can expect. In all surgeries, there is an element of personal gain by the person performing it if it is successful—this is partly why there are professional obligations for physicians to act in the patient’s interest and not her or his own. However, in the case of an innovative procedure, the surgeon might feel extra pressure to have a patient consent because of the potential personal benefit to one’s career. The solution reached in this show, to have someone other than the innovating surgeon to talk with the patient, makes a great deal of sense and perhaps, should be the standard.

Chicago Med (Season 3; Episode 6): Hidden Pasts

Mama Buckley is a senior who comes to the ER for a fractured wrist after falling in her room. She is accompanied by her middle-aged daughter, Nancy. While Mama is the patient, Nancy repeatedly winces and grabs her abdomen in pain. Her symptoms match appendicitis but she had her appendix removed when she was 14. Nancy never had kids although she always wanted them.  A scan shows that she has an inflamed appendix and something else, a tubal ligation. Her appendix bursts and she is rushed off to surgery. Dr. Manning talks to Mama who says that they are from North Carolina and when Nancy was a teenager, she was a wild child. A judge told her that he thought sterilization would be good for Nancy, otherwise she was headed to being a teenage mom. Mama asks Manning not to tell her daughter: The sterilization is ancient history. Manning discusses the situation but never wavers that “legally, I am bound to tell her.” She also thinks that telling Nancy is the right thing to do so that she can have control over her future. One of Manning’s concerns is what will the revelation do with Nancy and Mama’s relationship, an answer the viewer is not privy to since this story ends with the two of them entering the same room.

The fact that the characters are named “Buckley” is a reference to the famous “Buck v. Bell” case where a woman was sterilized against her will. Unconsented sterilization was an issue in North Carolina, where it was practiced as recently as 1973. During 45 years of legality, over 8,000 sterilizations were approved in NC and over 7,600 were carried out. Manning’s discovery of the tubal ligation is an “unintended finding,” meaning a result that was not part of the current complaint or problem. How to handle unintended findings has become a major bioethical concern. This problem has been discussed in reference to clinical findings discovered when conducting research. In that case, one has to ask how severe the problem is, whether it is causing health problems for the patient, and whether the researcher is also the subject’s physician (which would be a problem in itself)?  In this particular case, the finding comes from a clinical scan, not a research one. Does the physician have an obligation to share this discovered information? I believe that indeed, Manning had an obligation to tell her patient once she knew about the sterilization. Keeping information from a patient is lying by omission which violates patient’s autonomy, violates the physician’s fiduciary relationship, and threatens to destroy therapeutic trust. While telling was not easy, Manning’s action was the better ch

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