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Blog Posts (4406)

July 18, 2017

Texas Legislature Special Session Tackles DNR Orders and Medical Futility

The Texas Legislature is holding a special session that starts today. The session, which follows a five-month regular session that concluded May 29, can last no more than 30 days.

One of the agenda items is "strengthening patient protections relating to do-not-resuscitate orders."  Already four bills have been introduced.

HB 152, like many bills over the past decade, would amend TADA by eliminating the 10 day transfer period. The amendment would require continued treatment until transfer.

The other three bills are identical. Among other things, HB 12, HB 43, and SB 11 would require patient or surrogate consent for DNR orders unless all three of the following are satisfied:
  1. It is not contrary to the directions of a patient who was competent at the time the patient conveyed the directions.
  2. The patient ’s death is imminent, regardless of the provision of cardiopulmonary resuscitation.
  3. The DNR order is medically appropriate.

July 18, 2017

The Prognosis for Whole Brain Death is…

Recent court proceedings bring the case of Jahi McMath back into the bioethical news. As you will recall, she had medical complications following a surgical procedure in 2013 and was declared brain dead. The family argued for continued life support, which the hospital denied (since she met the criteria for whole brain death). After much legal wrangling, she was transferred to New Jersey, where she... // Read More »
July 17, 2017

The Ethics of Treatment for Charlie Gard: Resources for Students/Media

My colleagues over at the University of Oxford Practical Ethics Blog have collected together below some of the materials on the Charlie Gard case that they and others have written as well as some relevant  resources from thei...
July 17, 2017

The Ethics of Treatment for Charlie Gard: Resources for Students/Media

My colleagues over at the University of Oxford Practical Ethics Blog have collected together below some of the materials on the Charlie Gard case that they and others have written as well as some relevant  resources from thei...
July 16, 2017

Innovation for End-of-Life Communication in the ICU

A recent article in the American Journal of Respiratory and Critical Care Medicine offers great advice on communication in the ICU.

This is important, because "once the family has expressed a choice, it is much harder to talk them out of it an the process becomes contentious rather than shared." Small tweaks to the words we use can make a big difference.

"Family meetings in the ICU aim to facilitate preference sensitive treatment decisions through shared decision making. To elicit information about patient preferences the Society of Critical Care Medicine endorses questions like 'what would she want?'"

"However use of the word 'want' may be particularly problematic as it encourages surrogates to express desires that are not grounded in the clinical context. Although it is common practice to ask what a patient might want, this question can lead to worse decision making and less exchange of information about patient’s values."

"Attention to word choice is important. To improve surrogate decision making, clinicians should ask family members what their loved one might say or think about the patient’s health state."

July 15, 2017

Understanding Your ICU Stay: Information for Patient and Families

The Society of Critical Care Medicine has a great new guide for patients and  families: Understanding Your ICU Stay. This should help improve communication and reduce conflict.  Here is the table of contents: Why Do ICU Patients Look an...
July 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.

July 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."])


July 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.…

July 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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Published Articles (54)

American Journal of Bioethics: Volume 17 Issue 7 - Jul 2017

A Proposed Process for Reliably Updating the Common Rule Benjamin E. Berkman, David Wendler, Haley K. Sullivan & Christine Grady

American Journal of Bioethics: Volume 17 Issue 7 - Jul 2017

At Last! Aye, and There's the Rub Alexander M. Capron

American Journal of Bioethics: Volume 17 Issue 7 - Jul 2017

Modernizing Research Regulations Is Not Enough: It's Time to Think Outside the Regulatory Box Suzanne M. Rivera, Kyle B. Brothers, R. Jean Cadigan, Heather L. Harrell, Mark A. Rothstein, Richard R. Sharp & Aaron J. Goldenberg

American Journal of Bioethics: Volume 17 Issue 6 - Jun 2017

When Respecting Autonomy Is Harmful: A Clinically Useful Approach to the Nocebo Effect John T. Fortunato, Jason Adam Wasserman & Daniel Londyn Menkes

AJOB Primary Research: Volume 8 Issue 2 - Apr 2017

Perspectives of IRB chairs on the informed consent process Eugene I. Kane III & Joseph J. Gallo

AJOB Primary Research: Volume 8 Issue 2 - Apr 2017

Growing an ethics consultation service: A longitudinal study examining two decades of practice Christine Gorka, Jana M. Craig & Bethany J. Spielman

AJOB Primary Research: Volume 8 Issue 2 - Apr 2017

Adolescent oncofertility discussions: Recommendations from a systematic literature review Dorit Barlevy, Bernice S. Elger, Tenzin Wangmo & Vardit Ravitsky

AJOB Primary Research: Volume 8 Issue 2 - Apr 2017

Primary care physicians' views about gatekeeping in clinical research recruitment: A qualitative study Marilys Guillemin, Rosalind McDougall, Dominique Martin, Nina Hallowell, Alison Brookes & Lynn Gillam

AJOB Primary Research: Volume 8 Issue 2 - Apr 2017

Healthy individuals' perspectives on clinical research protocols and influences on enrollment decisions Laura Weiss Roberts & Jane Paik Kim

AJOB Primary Research: Volume 8 Issue 2 - Apr 2017

When bins blur: Patient perspectives on categories of results from clinical whole genome sequencing Leila Jamal, Jill O. Robinson, Kurt D. Christensen, Jennifer Blumenthal-Barby, Melody J. Slashinski, Denise Lautenbach Perry, Jason L. Vassy, Julia Wycliff, Robert C. Green & Amy L. McGuire

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News (2078)

July 5, 2017 10:00 am

For Parents of U.K. Infant, Trump’s Tweet Is Latest Twist in an Agonizing Journey (The New York Times)

The long journey for Connie Yates and Chris Gard, whose infant son, Charlie, cannot breathe or move on his own, appeared to have come to an end last week. The courts had ruled that the baby’s rare genetic condition was incurable and that the only humane option was to take him off life support. The couple announced that they were getting ready “to say the final goodbye.” Then Pope Francis and President Trump weighed in, offering statements of support and thrusting a global spotlight onto a heart-rending case that has become a cause célèbre in Britain.

June 20, 2017 10:58 am

Trump ‘simply does not care’ about HIV/AIDS, say 6 experts who just quit his advisory council (Washington Post)

The first hints of an uncertain future for the Presidential Advisory Council on HIV/AIDS came last year, when Donald Trump’s presidential campaign refused to meet with advocates for people living with HIV, said Scott Schoettes, a member of the council since 2014. That unease was magnified on Inauguration Day in January, when an official White House website for the Office of National AIDS Policy vanished, Schoettes said. Last week, he and five others announced they were quitting the Presidential Advisory Council on HIV/AIDS, also known as PACHA.

June 6, 2017 9:00 am

Superantibiotic is 25,000 times more potent than its predecessor (Science)

The world’s last line of defense against disease-causing bacteria just got a new warrior: vancomycin 3.0. Its predecessor—vancomycin 1.0—has been used since 1958 to combat dangerous infections like methicillin-resistant Staphylococcus aureus. But as the rise of resistant bacteria has blunted its effectiveness, scientists have engineered more potent versions of the drug—vancomycin 2.0. Now, version 3.0 has a unique three-pronged approach to killing bacteria that could give doctors a powerful new weapon against drug-resistant bacteria and help researchers engineer more durable antibiotics.

June 5, 2017 9:00 am

Unsafe delivery of measles vaccine kills 15 children in South Sudan (CNN)

In a remote village in South Sudan, 15 children died from severe toxicity caused by contaminated measles vaccines, government health investigators said Thursday. The National Adverse Events Following Immunization Committee, supported by the World Health Organization, and UNICEF vaccine safety experts examined the cases and those of 32 other children who suffered fever, vomiting and diarrhea.

May 1, 2017 9:00 am

Human vaccine data release jump-starts biotech’s bid for RNA drugs (Science)

The executive team at Moderna raised a cheer today after publishing their first early snapshot of human efficacy data that demonstrate their messenger RNA tech works — at least on the first try. The biotech tested their H10N8 flu vaccine on a small group of 31 subjects, looking at their response in two different measures. All demonstrated a sufficient immune response to fight off the virus in the first measure, and all but 3 in the second, for a total of 23 who received the vaccine.  None of the 8 subjects who received a placebo responded.

April 10, 2017 9:00 am

First medical diagnosis often incomplete or outright wrong, study finds (The San Diego Union-Tribune)

When your doctor gives a diagnosis of a complicated disease, it often pays to get an independent second look, according to a study from Mayo Clinic published Tuesday.

April 3, 2017 9:00 am

Donald Trump believes the solution to the opioid crisis is talk (Vox)

President Donald Trump will soon sign an executive order to tackle what he’s called the “total epidemic” of opioid abuse and addiction. The main objective of the order is to create a commission that’s tasked with publishing a report on what to do about America’s deadliest drug crisis ever.

March 28, 2017 9:00 am

Dying patients want easier access to experimental drugs. Experts say that’s bad medicine (Watertown Daily Times)

DeBartoli walks with difficulty and falls frequently. He’s losing his ability to breathe on his own. Now the 55-year-old from Tracy, Calif., has pinned his hopes on an experimental drug made by Genentech — and a new “right-to-try” law that allows desperate patients to take medications before they’ve been fully vetted by the Food and Drug Administration. The measure’s newest fan is President Donald Trump, who said the FDA’s caution in granting dying patients access to some medications had “always disturbed” him. But for all its populist appeal, the push for right-to-try laws has raised the ire of ethicists, drug safety experts and a former FDA commissioner.

March 16, 2017 9:00 am

Should hospitals — and doctors — apologize for medical mistakes? (Washington Post)

Spurred by concerns about the “deny and defend” model — including its cost, lack of transparency and the perpetuation of errors — programs to circumvent litigation by offering prompt disclosure, apology and compensation for mistakes as an alternative to malpractice suits are becoming more popular.

March 13, 2017 9:00 am

Employees who decline genetic testing could face penalties under proposed bill (Washington Post)

Employers could impose hefty penalties on employees who decline to participate in genetic testing as part of workplace wellness programs if a bill approved by a U.S. House committee this week becomes law.

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