Posted on July 5, 2018 at 2:00 PM
Code Black (Season 3; Episode 10): Patients Asking Doctors to Lie to Family Members; Code Black (Season 3; Episode 11): Law enforcement pressuring nurse for blood draw
by Craig Klugman, Ph.D.
Code Black (Season 3; Episode 10): Patients Asking Doctors to Lie to Family Members
A mother arrives at the ED with her adult son. The mother has fallen down and hit her head. She has a history of brain cancer which went into remission 4 years ago. An MRI scan shows that the cancer has returned. The patient does not want her son to know—she does not want to burden him. Willis, a trauma doc, is concerned that the patient does not understand her condition and may lack capacity to make decisions because she wants to hide her disease from her son. Campbell, the ED chief, argues that she has a right to privacy: “Willis, HIPAA protects her privacy. She decides who she tells and she decides how she lives or how she dies and no doctor can take that away. And they won’t, not on my watch.”
When the patient has a seizure, she is rushed to treatment where the son overhears that medications have had no effect and they are drilling a bore hole to release fluid. The patient is unconscious and unresponsive. The son asks “what’s wrong? Is her cancer back?” When Willis starts to tell the son the truth, the chief jumps in and stops Willis. The chief says that the fluid problem was a result of the patient’s fall and nothing else was wrong.
Patients have a right to their privacy which includes deciding who (outside of their care team) knows of their health problems. That means the patient was within her right to keep the truth from her son and within her right to ask her health care providers not to reveal her private health information to anyone, including her son. However, the question arises whether a patient has the right to ask a doctor to not just “say nothing” but to actively lie to a patient, as Campbell does. In other words, does protecting privacy mean actively lying by commission? A physician’s fiduciary duty relates directly to the patient, and thus unless the truth would endanger the patient, the truth should always be told to the patient. If this were merely a question of is there an obligation to tell the truth to family members after a patient has explicitly said “do not tell them”, then the answer is simpler—there is no truth-telling owed to family. But there is a difference between omission of the truth—not telling the family and not answering the questions (when the lack of information does not affect the family member’s physical health)—and commission of a lie—telling the family something that is not true.
A 2001 study found that 19% of physicianshad lied for patients and 74% withheld information from the patient record. What is not clear is whether these were lies of omission or commission. Perhaps the closest analogy is when a physician tells a story (i.e. creates a lie) to get insurance coverage for a patient medical procedure. A 1999 study learned that physicianswere willing to lie to insurers for a patient’s benefit. In some cases over 50% of physicians would lie.
A description, however, does not lead to an ethical prescription. Lying to increase or secure insurance coverage is illegal (i.e. “fraud”). Ethically, lying to gain coverage could be viewed as advocating for one’s patient or violating justice in a health care system (which might mean fewer resources being available for other patients). Lying to gain a benefit, given a fair and unbiased review process, does not pass the ethics test. Similarly, a patient can ask a health care provider to maintain confidentiality by not releasing information about them or their condition, but the patient cannot ask others to actively lie (i.e. act of commission). I say this because one cannot compel or require others to tell a lie, which for many is immoral, and for many philosophical theories is unethical. Therefore, Willis was wrong to (try to) break confidentiality but Willis was wrong for actively lying—Willis should simple have said nothing or that he could not provide more information. Saying that the injury was the result of the fall (true) and not saying the fall was caused by the return of cancer (omission) was acceptable. However, going further and saying “Nothing else is wrong” is crossing a line to active lying (commission) by telling a non-truth.
There is, however, a further complication in this case. When the patient falls unconscious, the medical decision-maker then becomes “the most appropriate person” according to California law, where this shop purportedly takes place. Often that appropriate person is a family member or friend who has a close, caring relationship to the patient (and is available). The son certainly meets this definition. As the surrogate decision-maker, the son has a right to the patient’s private health information in order to be able to make well informed choices. When the son asks “is her cancer back” he is not asking as the son of the patient, but rather as her legal surrogate decision-maker, In this analysis, the son should have been told the truth even with the patient’s request because lack of knowledge affects his ability to decide as the patient would have.
The story ends with the patient alert and doing better. She is pleased that her son has gone home and that she has saved her son the pain and anguish of taking care of her as she dies. However, the son then appears at the bedside and sits down to read a book to her—he knew without being officially told. The choice to spend these final days with his mother was one that he made and that was almost denied to him.
Code Black (Season 3; Episode 11): Law enforcement pressuring nurse for blood draw
After a hit and run injures an EMT, the drunk driver of the vehicle is brought into the ED. The police request a blood sample and head nurse Guzman, backed up by Rorish, tells them that they can’t have one without a writ—a judge’s orders. Several scenes later the officers return and demand a blood test. Guzman still refuses to let them touch the patient, demanding they get a warrant. The officers lean heavily on him, “Do you know how long it takes to get a warrant” and then arrest Guzman for obstructing justice, handcuffing him and putting him the backseat of their cruiser. They are acting emotionally, disturbed by the injury to “one of their own.” Guzman explains that the EMT was one of his own too, but what they were requesting was wrong. While Rorish yells at one cop in the parking lot, the second cop who is sitting in the car, releases Guzman.
Clearly, this storyline is a reference to a 2017 real-life case where a nurse in Utahwas arrested for refusing to perform a blood draw on an unconscious, suspected drunk driver. The charge was obstructing justice for refusing to take a blood sample without a warrant. Legally and ethically the nurse was correct to protect her patient from the assault of an illegal blood draw. Just because something is hard (i.e. getting a warrant) does not mean taking the easy route is right. The nurse in this case settled with the Salt Lake City police department for $500,000.
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