Death Panels are Alive
5 years ago Bernard W Freedman, JD, MPH 2
In a major medical center in California a 74-year-old patient who suffered a stroke had been in a coma and on a ventilator for one month. There were a variety of complications and comorbidities. According to his physicians the patient was not in a persistent vegetative state, but in a coma. The physicians recommended that the son and surrogate decision maker, consent to withdrawing the vent and allowing his father to die peacefully. His son was also admonished that if he did not consent he would then have 10 days to get his father out of the hospital or his father would be removed from the ventilator without his consent and allowed to die.
Though the father’s chances of recovery were slim, his son decided to wait to see if his father would slip further, either into a persistent vegetative state or begin to show signs of improvement. The physicians and hospital disagreed with the son and did not feel that he was acting in his father’s best interest.
In California, a hospital has the right to refuse to provide what they believe to be “medically ineffective health care or health care contrary to generally accepted health care standards applicable to the health care provider or institution.”(Probate Code Section 4735). If the hospital refuses to provide further care they must “immediately make all reasonable efforts to assist in the transfer of the patient to another health care provider …” (Probate Code Section 4736).
In response to this threat the son quickly found three skilled nursing facilities willing to take his father. However, they would only do so if he had a tracheostomy, rather than being intubated. The son asked the hospital put in a tracheostomy. Tracheotomies are performed thousands of times a day all over the country, and are generally performed after a patient has been intubated longer than 21 days. Nevertheless, the physicians, with the support of the attorneys for the hospital, refused. By refusing they decided to ignore the hospital’s statutory duty under these circumstances to immediately make “all reasonable efforts to assist in the transfer.” Instead they renewed their threat to the son that the vent would be removed if his father wss not gone from the hospital by the 10th day.
On day 6, of the 10-day inflexible window, a transferee hospital was found that would take the patient albeit intubated. The transferee hospital advised, however, that it would take 3 – 5 days to accomplish the transfer; possibly exceeding the 10-day window by 1-2 days. Accordingly, a repeat demand was made that any order to terminate life sustaining treatment be cancelled pending, the now arranged for, transfer. The request was refused. One physician, however, treating the patient advised the son that the order cannot be cancelled but that it will not be carried out either. It is my viewpoint that this treating physician could not cancel the order because of hospital policy in such circumstances.
The patient was transferred late on the 10th day.
How could this major medical center have handled this better?
They could have followed the law. If a physician or hospital is of the opinion that a surrogate decision maker is not acting in the best interest of the patient, they can ask the court to relieve him or her as the decision maker. (California Probate Code Section 4766). Yet, lawyers for the hospital knew that such a request to the court would require disclosure of the underlying facts, probably including medical records and declarations from the consulting physicians supporting their recommendations. Lawyers for the hospital chose not to bring the actual facts before the court.
So, we are left with the conflict between law and medical decision-making.
It is here that the description of this incident as a “death panel” seems appropriate. Specifically, the hospital lawyers would have to demonstrate that continued life sustaining care was “contrary to generally accepted health care standards” of their hospital and show that the son was not acting in his father’s best interest. Instead of following the law the hospital and its physicians chose to keep things in the dark and resort to repeated and unnecessary cruel threats.
Alternatively, they could have followed the law and “immediately make all reasonable efforts to assist in the transfer” by performing the tracheostomy and enabling the transfer to a skilled nursing facility. This, it seems, would have satisfied the decision of the hospital to have the patient discharged and the son’s decision to allow his father more time until the medical picture became clearer.
Why not meet their legal obligation to bring this matter before the court?
Interestingly, such steadfast positions, such as the ones made by the hospital here, are not the product of hasty and impulsive thinking, but rather well thought out policy. In this instance, the medical center saw fit to secretly declare themselves outside and above the law and empower themselves to make not only medical decisions but legal decisions as well; an arrogant and audacious policy. In doing so they violated their patient’s trust, inflicted significant emotional turmoil on his son and acted contrary to the high standards of professionalism in the practice of medicine.