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07/14/2017

Banks v. Santaniello – New Futility Case

The U.S. District Court for the Northern District of Illinois has just granted defendants' motion to dismiss a medical futility lawsuit. But the plaintiff may amend her complaint by August 7.

Tasha Banks claims that trauma surgeon John Santaniello terminated the life support of her daughter, Letajonique Larry, without justification and without Banks's consent.

According to the complaint, at some point after Larry's arrival at Loyola University Medical Center, Santaniello determined that she was “brain dead."  Santaniello informed Banks that the ventilator that was keeping her breathing should be disconnected. 

On Larry's second day at Loyola, without Banks's consent and over her repeated objections, Santaniello carried out his decision to disconnect the ventilator, allegedly laughing as he did so. According to Banks, this was unwarranted. Santaniello “unplugged the ventilator when he should not have.” Banks also questions whether Larry was truly brain dead.

After Larry's ventilator was shut off, members of the hospital staff had Banks escorted from the hospital premises. Banks has experienced continuous heartache from the time of her daughter's death to the present.

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07/13/2017

Jahi McMath – Evidence that She Is Now Alive Considered by Court Today

Later today (California time), is a hearing on the Motion for Summary Adjudication of Plaintiff Jahi McMath's First Cause of Action for Personal Injuries, filed jointly by all defendants ("Defendants") on March 23, 2017.

Judge Stephen Pulido has posted his tentative ruling. I have pasted that below.   


Defendants and for Plaintiffs McMath et al. ("Plaintiffs") shall be prepared to address, among other things, the following: 


(1) The supporting and opposition papers are "heavy" on discussion of the various medical diagnoses and opinions but "light" on discussion of the applicable legal standards for the court to apply. For example, though Defendants include a collateral estoppel argument, there is only one paragraph addressing it on the last page of Defendants' memorandum, with a single case cite as to the general application of collateral estoppel, and this issue is not identified in the Notice of Motion. Is this a separate basis of the motion, and if so, have Defendants given proper notice of this? Which facts in the Separate Statement of Undisputed Material Facts ("UMF"), if any, are material to this issue? 


(2) The Notice of Motion states that the motion "is made on the grounds that Jahi McMath lacks standing to sue for personal injuries because she was pronounced deceased in accord with California law in December 2013. The undisputed material facts establish that no mistakes were made in the determination of McMath's brain death in December 2013, and the diagnosis of McMath's brain death was made in accord with the accepted medical standards required by California law." (Notice, p. 3.) If the court were to determine that there is no genuine dispute as to the two matters stated - i.e., no mistakes made in a conforming diagnosis in December 2013 - does that establish as a matter of law that McMath lacks standing? What is Defendants' legal authority (if any) that such a conforming medical diagnosis is conclusive as a matter of law for all purposes, regardless of an assertion (as here) that there have been changed circumstances? 


(3) The court notes that Defendants cite Dority v. Superior Court (1983) 145 Cal.App.3d 273, the case cited by Judge Grillo in his Amended Order of January 2, 2014, as to the propriety of judicial involvement. In that case, the court stated: "It appears that once brain death has been determined, by medical diagnosis under Health and Safety Code section 7180 or by judicial determination, no criminal or civil liability will result from disconnecting the life-support devices (see People v. Mitchell (1982) 132 Cal.App.3d 389)." (Id., p. 279.) The court also stated that "[n]o judicial action is necessary where the health care provider and the party having standing to represent the person allegedly declared to be brain dead are in accord brain death has occurred" but that "[t]he jurisdiction of the court can be invoked upon a sufficient showing that it is reasonably probable that a mistake has been made in the diagnosis of brain death or where the diagnosis was not made in accord with accepted medical standards." (Id., p. 280.) Do Defendants contend this case (or any other) establishes that where a court makes such a determination for purposes of resolving a dispute as to life support it is final for all other purposes as well, including an individual's standing to bring a civil action? In the above regard, the court notes that Judge Freedman considered a similar issue in his order of March 14, 2016, in which the court stated: "While Dority supports the appropriateness of the judicial proceeding in Case No. RP13-707598, in which Winkfield sought the court's intervention because of uncertainty as to the treating physicians' diagnosis of brain death and Winkfield's assertion that CHO should continue providing life support to Jahi, it does not directly address CHO's assertion that a court's determination in the context of a such a dispute is to be accorded finality in any and all other proceedings or disputes that may arise subsequent to the life-support dispute in which the court's intervention was sought. In the absence of other authority addressing this assertion, the court declines to make a final determination in this regard at the pleading stage." Is there further authority the court should consider that was not previously cited? 


(4) Plaintiffs contend that the facts in the UMF to the effect that McMath was determined to fulfill the medical standards under the "Guidelines for the Determination of Brain Death..." are "disputed to the extent [they] impl[y] Jahi McMath presently fulfills the Guidelines, as there is no question that Jahi presently does not, for the single reason that the first of the "three cardinal findings in brain death' - coma, absence of brainstem reflexes, and apnea - is not fulfilled." (See, e.g., Plaintiffs' Response to Defendants' Separate Statement ["PRSS"], Nos. 26, 28, 29, 31, 32, 33, 34, 38, 48, 51, 62, 63, 64 and 65.) Although Defendants have objected to some of the cited evidence, if at least some portion of it is admitted, is this a sufficient reason to deny the motion, or do Defendants contend all of these purported disputes are immaterial?


(5) Although Plaintiffs purport to dispute the UMF facts listed in "Issue 3," Nos. 67-69, which are to the effect that a clinical examination "in accord with the accepted medical standards in the Guidelines" has not taken place since December 2013, it does not appear that any of those disputes are to the effect that such a clinical examination has occurred. (PRSS Nos. 67-69; see also Winkfield's response to RFA Nos. 15 and 18.) Instead, Plaintiffs' expert opines that certain tests have been done since that time not to "determine brain death" or to "substitute for the accepted medical standards" but "to evaluate, out of interest, the structure and electrophysiological functioning of Jahi's brain 9 months after the uncontroverted diagnosis of brain death according to the Guidelines." (Decl. of D. Alan Shewmon, M.D., ¶ 29.) To what extent are such tests admissible and material even if they were not part of a clinical examination "in accord with the accepted medical standards in the Guidelines"? 


(6) Defendants object to the entire declaration of Dr. Shewmon, as well as specified portions thereof, on thirteen grounds. It would be helpful for the court to have a written response from Plaintiffs as to the evidentiary objections, or at least to discuss them in some detail at the hearing. Among other things, the objection to his testimony to the extent based on 49 video recordings which have not been introduced into evidence or authenticated appears to have merit. (See, e.g., Still Decl., ¶ 17 and Exh. M; Supp. Still Decl.; Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742-743 ["Without those hospital records, and without testimony providing for authentication of such records, Dr. Frumovitz's declaration had no evidentiary basis."])


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07/12/2017

Forget the DNR, Time for Opt-In CPR

by Craig Klugman, Ph.D.

A nurse in the UK was sanctioned with a ”caution order” (a warning or demerit) on her record for 24 months after she did not perform CPR on a patient who presented as “waxy, yellow and almost cold” when she was called to look at him in his hospital room. The patient was dead. However, since the patient lacked a DNAR order, under UK law and standard of care, she was obligated to begin CPR even though the process has not been known to revive a cold corpse. This incident begs the question as to why performing CPR is the default order and leads me to recommend a policy change: DNAR ought to be the default code status unless a patient or family opts-in for full-code.…

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This entry was posted in End of Life Care, Featured Posts, Health Care, Justice, Social Justice and tagged , . Posted by Craig Klugman. Bookmark the permalink.

07/11/2017

Matters of the Heart – Keeping Pace with Science, Ethics, and the Law in Deactivation of Cardiovascular Implantable Electronic Devices, including Pacemakers

Law professor James H. Pietsch has just published "Matters of the Heart - Keeping Pace with Science, Ethics, and the Law in Deactivation of Cardiovascular Implantable Electronic Devices, including Pacemakers" in the Elder Law Journal. "Pacemakers...

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07/11/2017

Charlie Gard – An Update on July 11, 2017

Here is a link to my interview last night on the Larry O'Connor show regarding the latest developments in the Charlie Gard case. The carefully vetted evidence before four courts was that the proposed nucleoside therapy has a virtually 0% chance of b...

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07/10/2017

Why People Matter

This time last year, I had the opportunity to index the new book Why People Matter: A Christian Engagement with Rival Views of Human Significance, edited by John F. Kilner. Released in January 2017, Why People Matter explores how five competing philosophical perspectives explain human significance.  Almost everyone understands that people are important, and this book delves into different ways that people outside the faith... // Read More »

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This entry was posted in Health Care and tagged , . Posted by Janie Valentine. Bookmark the permalink.

07/08/2017

10 Year Anniversary of Medical Futility Blog

I made the first post (of more than 3000) to this blog 10 years ago, on July 8, 2017.

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07/08/2017

Shared Decision Making and Patient Decision Aids

It was a pleasure to participate in the 9th International Shared Decision Making Conference this week. While ethical and legal principles recognized the doctrine of informed consent 50 years ago, only today are we really moving toward patient-centered...

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07/07/2017

ASBH – Call for Bioethics Volunteers

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07/07/2017

The 2017 Common Rule and the Clinical Ethics of Prolixity

Some bioethicists link the beginnings of our field to the Nazi Medical experiments and the Nuremberg Trial (Annas). Whether this is the beginning of bioethics is debatable, but without a doubt, research ethics has been a central topic in the field. In fact, the very first federal bioethics commission laid out the principles of research ethics in the Belmont Report. Later, the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research recommended to the President and Congress that a uniform framework and set of regulations should govern human subjects research.  This effort reached fruition under The Federal Policy for the Protection of Human Subjects or the “Common Rule” that was issued in 1991. 

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