Posted on November 26, 2019 at 12:43 AM
by Craig Klugman, Ph.D.
A world-famous leukemia oncologist lands in the hospital with occlusion to her coronary arteries and a damaged left side of her heart. During surgery, Melendez mentions that the damage is worse than expected and they should update the power of attorney, who is the patient’s ex-husband. Park informs Melendez that the two haven’t spoken in two years and that he was not coming. Park has also tried to track down a sister who says she doesn’t know her sister and can’t serve. Murphy says that this is a good situation because “family members are the least qualified people in the room to make medical decisions”. Melendez says that her heart is so damaged that the only possible decision is a heart transplant.
While some studies have shown that surrogate decision-makers usually make a different decision than the patient would choose, the law holds that a designated decision-maker gets to make choices for a patient. However, a surrogate who refuses to decide lacks the authority to appoint someone else. Park is doing the right thing, finding other family members who might be able to serve as the surrogate decision-maker. In the absence of such a person, state laws differ on how to make choices. In some, there should be a discussion with a clergy, in others a good friend, in others executor of the estate, and in others the physician has to pick someone. In an emergency, a physician (in some places two physicians) choose, but otherwise, there may be a hospital policy or practice on how to make these choices. In the long run, a guardian will need to be appointed by a court. In this case, the surgery can cease, the patient can recover and doctors can ask the patient herself. Without a heart in hand, there is not much to be done in the moment. Park visits the ex-husband who talks about how his ex-wife was never around in his life but he shows up to the hospital anyway. Although she lived her life alone and was not close to anyone, her husband showed up and stayed next to her while she died.
Sophie is a sick (congenital heart defect) infant abandoned by her father who leaves her in the hospital with a DNR order. The baby’s aunt wants to initiate adoption but that will take time. The surgeon is not comfortable doing the surgery with a DNR order in place. Manning goes to Goodwin who says the DNR has to hold because the father left instructions, “My little girl has suffered enough and if the good lord decides to take her we should let him”. The hospital attorney says, “Both legal and the ethics committee have said this DNR is valid and they won’t approve emergency guardianship.”
In reality, DNR orders are often temporarily held for surgeries. Ideally, this happens after a conversation with the physician and patient/family. But in many hospitals, there is simply an unwritten (and unethical) policy that DNRs are not honored during surgery (otherwise it can cause a hit to a surgeon’s scores). Let’s also realize that this case is about heart surgery and so stopping the heart is necessary to the procedure. To follow the DNR means that they cannot restart the heart—it has to beat spontaneously on its own even after the surgeon has stopped it. Clearly, this is a ridiculous situation and no one can or should do heart surgery without the ability to restart the heart after they have stopped it. The DNR is a physician’s order (not a patient/guardian demand or a patient/guardian order). Goodwin should have gone to a judge (with the physician’s recommendation and evaluation) for an emergency order to permit the surgery (this is not guardianship but rather permission to save a child’s life). The ethics committee decided wrongly, especially since dad disappeared, leaving the baby alone in the hospital after making his statement. The aunt wants to adopt the baby and wants the baby to live and she is present and available (in the Illinois surrogacy act, a surrogate has to be available in order to serve (dad is not available) and with mom deceased, the aunt would be next on the surrogate list). Also realize that emergency guardianship is not something that can be granted by the legal department nor the ethics committee; such a move requires a judge’s order. In this scenario, the aunt has the power to make the decision, at least, in Illinois where this show is supposed to take place.
In another storyline, Choi puts together a chain transplant when two patients need a kidney transplant but neither of their living donors are matches for them. Instead, the donors are matches for the other patient. What happens, however, when one of the recipient patients dies after the harvest from a donor has begun and the donor’s husband withdraws consent? Goodwin announces during the surgery that the kidney should be reimplanted and cannot be transplanted. With the patient kept under anesthesia and the kidney on ice, a meeting is held where Goodwin asks who “owns” the kidney. The hospital attorney responds that he does not know because this is a unique situation: “I need to consult with ethics.” Later, Goodwin reports that legal says once the kidney has left the body, the hospital becomes its caretaker. She then says that ethics thought the kidney should go to the original patient determined by the donor: The husband’s direction will not be followed.
In reality, this is a risk of chain transplants—it only takes one person to break the chain. I do applaud this show which began with seeing ethics as a punishing police force (which it is not) to seeing it as a consulting body (which it is). What the show gets wrong is the idea that consent is a one-time event and that it is binding. When the donor gave consent, there was a certain set of facts. The husband withdrew consent because that set of facts had changed. Absent being able to wake up the donor and ask what she would want, as long as the legal surrogate is making a decision in line with the donor’s values, then the most recent consent (or lack thereof) should be honored. With their child now dead (and presumably the donor entered the chain to get her child a kidney) would the woman still donate her kidney? Maybe she would and maybe she wouldn’t. But the change in facts is enough to lend doubt and thus the only insight available is the husband’s (legal surrogate’s) decision. The kidney should be reimplanted (if that’s even possible).