Tag: medical futility blog

Blog Posts (1328)

July 28, 2016

Marking the 40th Anniversary of In re Quinlan’s Landmark Contribution to Death & Dying Jurisprudence

Norm Cantor reflects, this week, on the 40th Anniversary of In re Quinlan’s landmark contribution to death and dying jurisprudence.

His conclusion is sobering:  "Unfortunately, 40 years have not sufficed to fully and uniformly integrate the lessons of Quinlan into American medical practice."

"Just as Brown v. Board of Education, for all its wisdom, could not judicially create integrated schools, Quinlan has not universally relieved moribund patients from being mired in an unwanted, cognitively unaware limbo."

July 27, 2016

Unilateral Do Not Resuscitate Orders

Meredith Miceli, an Associate General Counsel for the Ochsner Health System in New Orleans, published an article in the summer 2016 Ochsner Journal: "Unilateral Do Not Resuscitate Orders."

Ms. Miceli observes that Louisiana has no legal process like the 1999 Texas Advance Directives Act that offers safe harbor legal immunity.  Indeed, she notes there is "no legal guidance" in Louisiana.  (But the 1998 Causey case might suggest some  caution.)

"So, what  should an attending physician do when, in his or her professional judgment, any clinical treatment other than comfort care will be ineffective or harmful to a patient, but the family’s wishes . . . are in support of doing everything?"

Ms. Miceli advises that "a physician can act to validate his or her opinion on the appropriateness of the DNR order by obtaining the opinion of another physician, and . . . the latter’s signature on the DNR order as well as on an explanatory progress note . . . ."

"This 2-physician signoff process will serve to confirm the medical decision-making . . . and help protect the attending physician from claims of unsoundness or arbitrariness of decision. This 2-physician signature . . . is a prudent layer of protection . . . ."

This process does not provide what many providers crave in these situations: the elimination of uncertainty and risk.  But Miceli is right.  The fairer the internal process, the more likely it will receive deference and respect by external reviewers like a judge or jury.  

July 26, 2016

Law, Perception, and Cultural Cognition Near the End of Life

My colleague Kathy Cerminara has published the following article in the Washburn Law Review: "Law, Perception, and Cultural Cognition Near the End of Life."  From the introduction:

In the decade since Schiavo, neuroscience has developed in leaps and bounds, paving the way to further questions about the “fact” of a VS diagnosis. Neuroscientists have begun reporting success in using brain imagery to capture the structure and function of the brains of patients with disorders of consciousness, such as VS. 

Tools such as functional magnetic resonance imaging (“fMRI”) and electroencephalograms (“EEGs”) suggest that the clinical diagnostic criteria used to determine whether a patient is in a VS may be flawed. Such flaws may result in some diagnoses that are arrived at correctly yet are factually inaccurate, indicating that a patient is in a VS when he or she is actually in a minimally conscious state (“MCS”).

Neurologist Dr. James Bernat has noted, “[t]he public has become both fascinated by states of unconsciousness and skeptical of the ability of clinicians to diagnose them correctly, treat them properly, and issue prognoses accurately.”


This skepticism opens up space for discussion into which we must proceed cautiously because of the potential to read these studies as support for opinion in the guise of fact. Ms. Schiavo’s brother, Bobby Schindler, for example, has described fMRI techniques as demonstrating that “an ‘unscientific, inaccurate’ diagnosis of unresponsive patients [in VS] is being used as a ‘criterion to kill.'” 

Yet, neuroscientists themselves caution that their research is not advanced enough to accurately describe such diagnoses as unscientific or inaccurate, even if public opinion or social consensus favored the use of them “to kill.” Because of the emotional nature of the life-or-death issues involved, future disputes over VS are inevitable, and they easily could become as hotly contested as those that erupted during the final years of Ms. Schiavo’s life.


Not only are such disputes emotional and potentially violent, but they also are all too common. Everyone will encounter death at some point in his or her life. Everyone will watch friends and family members die; some rapidly, under emergency circumstances, and some after long, drawn-out dying processes. Tens of thousands of patients lie in VS in facilities across America at this very moment, and emotions easily flare when medical decisions are required in such contexts. Each of those patients’ long, drawn-out dying processes, like Ms. Schiavo’s, has the potential to involve a struggle between autonomy, liberty, and the awesome capability of medicine--a struggle to respect innovation in the medical sciences without sacrificing important freedoms.


This Article will assist in navigating such struggles. First, Part II will briefly recount Ms. Schiavo’s case as a vivid example, before delving into the relevant advances in neuroscience that have occurred since its resolution. Part II will analyze why those advances do not warrant questioning the validity of the current view of VS and MCS. Part III will explain the current sharp demarcation between these two conditions in the law of end-of-life decisionmaking. Finally, in Part IV, this Article will develop a typology of skeptics who question established, long-standing scientific conclusions such as the VS diagnosis. Use of this typology in conjunction with cultural cognition theory will aid in debates over the law relating to end-of-life decisionmaking on behalf of patients in VS.


In short, this Article will demonstrate that knee-jerk, emotional protests against statements like Bobby Schindler’s will not be as effective as other approaches to preserving hard-won medical decisionmaking liberties. The line between fact and opinion is still too blurry to accept those protests and change the law regarding refusal of treatment on behalf of those in VS. Nevertheless, we should recognize and engage with those who distrust the received wisdom in this area rather than reject their positions outright.


July 25, 2016

Euthanasia: Pro and Con Podcast

A new Podcast series objectively examines pro and con perspectives on euthanasia. Recent guests have included Margaret Somerville and Derek Humphry.
July 22, 2016

One Hundred Washington State Hospital Policies on End-of-Life Treatment


Two years ago, Washington state passed a rule requiring hospitals to post their policies on end-of-life care.  I blogged about the policies here.

Unfortunately, the state website was not a model of clarity.  Consequently, the ACLU, End-of-Life Washington, and others launched a new website, ClearHealth Washington, to decode the often murky policies.

“Providing this information at the service level, we think this is a clear and more useful way for information to be used by consumers, so that they know where they can access the services that they need,” said Margaret Chen, staff attorney at the ACLU of Washington.  (HT KPLU)

Unfortunately, since the underlying policies are vague and unclear, the ClearHealth website is not yet able to answer basic access questions for consumers.  Only one hospital seems to have completed a checklist designed by the ClearHealth project.

July 21, 2016

Innovative Approaches to End-of-Life Care (King's Fund Conference))

The King's Fund is producing an conference on September 22, 2016 in London: "Innovative Approaches to End-of-Life Care."

This event will look at innovative approaches to palliative and end-of-life care. It will give you an overview of some of the national programs of work in this area and share lessons from good practice case studies in palliative care and local end-of-life care commissioning and delivery.

You'll learn about measures including shared electronic records, partnerships between hospitals, hospices and services delivered in the community, and advance care planning, and how these can help you deliver the national ambitions for how palliative and end-of-life care should be delivered locally.

Opening session: End-of-life care – the national picture
Tracey Bleakley, Chief Executive, Hospice UK

National programme for end-of-life care
Hear about the work taking place at NHS England to support the delivery of end-of-life care across the country.
Jacquie White, Deputy Director for Long Term Conditions, Older People and End of Life Care, NHS England

Current and future challenges on death and dying in older adults
Julia will explore the challenges in improving end-of-life care for older people who make up over 70% of those who die.
Professor Julia Verne, Clinical Lead, National End of Life Care Intelligence Network, Public Health England

Making end-of-life care everybody’s business
Simon will talk about the work of Dying Matters and the National Council for Palliative Care in promoting public awareness of dying, death and bereavement.
Simon Chapman, Director of Policy and External Affairs, The National Council for Palliative Care and Dying Matters

Session two: Commissioning good end-of-life care

Making end-of-life care a priority in Merton
Learn how NHS Merton Clinical Commissioning Group went about developing a local end-of-life care strategy in partnership with health and social organisations, both statutory and voluntary.
You'll hear how they engaged with clinicians, managers, local people, patients and carers in the development and improvement of end-of-life services.
Dr Caroline Chill, Clinical Director for Integration, Older and Vulnerable Adults and End of Life Care, NHS Merton Clinical Commissioning Group

End-of-life care commissioning checklist
A resource for end-of-life care commissioners to review their existing services and to use those parts that are most relevant or needed locally.
Dr Caroline Stirling, Clinical London Director, NHS England

Breakout sessions: Innovative models in end-of-life care
A: Driving care coordination using electronic records
B: Partnership working with hospices
C: Working with patients and families
D: Working with communities to improve end-of-life care
E: Improving end-of-life care in acute hospitals

Closing session: Working together to prepare people for the end-of-life
Professor Keri Thomas, Founder and National Clinical Lead, Gold Standards Framework

Panel session: Facilitating Advance Care Planning: enabling difficult conversations at the end-of-life
Liz Alderton, District Nurse and Queen’s Nurse, North East London NHS Foundation Trust
Dr Harriet Preston, Consultant in Palliative Medicine, Blackpool Teaching Hospital NHS Foundation Trust
Dr Catherine Millington-Sanders, Marie Curie National Clinical End of Life Care Champion, Royal College of General Practitioners
Lucy Sutton, End of Life Care Project Lead, Health Education England

July 20, 2016

Jahi McMath Family Argues "Statistically Improbable Likelihood" Malpractice Action Will Resolve Issue of Her Life

Chris Dolan, McMath attorney in federal case 
This week, the Jahi McMath family filed a new brief in its federal lawsuit against the State of California.  The purpose of this brief is to apprise the U.S. District Court of developments in the state medical malpractice lawsuit.

In a nutshell, the state courts have repeatedly ruled that the McMath family may present evidence that Jahi is now alive.  They are not barred by 2013 court rulings that Jahi is dead.  But despite winning at the trial and appellate levels in state court, in this week's federal brief, the family argues that "the issue of whether Jahi McMath is alive or not will not necessarily be resolved in the malpractice action."

This is true.  After all, Jahi's life/death status is  relevant only to the issue of money damages.  And the issue of damages will be addressed only if the elements of duty, breach and causation are first proven.  (On the other hand, the court has been asked to bifurcate the trial such that damages could be tried first.)

In short, the McMath family further argues that the federal lawsuit is still necessary, because the state lawsuit is unlikely to resolve the life/death issue.  Why?  Because plaintiffs lose most medical malpractice cases.  And they take a very long time to litigate in any case (maybe 5 years).  

"There is, at best, a possibility that Jahi’s status as live or dead will ever be decided in the state court action. Even if a jury or judge ever reach this issue, an appeal could drag on for years."

"Jahi and her mother should not have to pin their hopes of reunion with their family during Jahi’s lifetime on the statistically improbable likelihood that the state court malpractice  action will resolve the issue of her life.

July 19, 2016

New AMA Code of Medical Ethics

We now have a completely revised and updated AMA Code of Medical Ethics.

In introducing the revision, the AMA notes that the "Code, over the years, became more fragmented and unwieldy. Opinions on individual topics were difficult to find; lacked a common narrative structure . . . ."  Therefore, "in the revision, when 2 or more existing opinions provided substantially similar guidance on closely related topics, key content was consolidated into a single, more comprehensive  opinion."

For example, 2.035 (Futile Care) and 2.037 (Medical Futility in End-of-Life Care) were combined and revised into 5.5 (Medically Ineffective Interventions.)

I do not see any substantive change in AMA guidance on this issue.  But Wesley Smith rightly notes that even vocabulary choice signals some judgments.  The term "ineffective" sounds objective and scientific.  But the situations anticipated in 5.5 are almost always value-laden.  The AMA might have aligned the vocabulary here to that recommended, last summer, by five other medical societies.     

July 18, 2016

New Appellate Court Case on Medical Futility - In re A

Lady Justice King Last week, the UK Court of Appeal decided another medical futility case in favor of treating clinicians. 2-year old A was badly injured in a traffic accident in November 2015.  He is completely unresponsive and makes no r...
July 17, 2016

Jahi McMath - New Video Interview with Mom

Jahi McMath's mother, Naila Winkfield, talks about the case at last week's National Right to Life Conference.

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