“Million Dollar Baby”: A Physician’s Ethical and Legal Analysis

Definitions are important if the terms are going to be used in a rational argument about an issue. I bring this up because I have seen the misuse of the terms “euthanasia” and “assisted suicide” with regard to the controversy about the ending of “Million Dollar Baby”. I would like to explain the words as physicians and lawyers and ethicists use them today.

Euthanasia means essentially a easy, good and painless death. The way this term is used in modern practice is that as a beneficent action to a acutely or chronically ill patient, a person, most likely a physician, hopefully on the request of a patient who has the mental capacity to make a life and death decision, will administer a lethal chemical, for example, into the patients body and cause the death. I would like to stress two points. One is why I wrote “hopefully”. Euthanasia is unlawful in the United States. Euthanasia as performed in the Netherlands is legally tolerated but only on the request of the patient. However, there are many reports from that country suggesting that this procedure is being carried out on incompetent adults and children. The other point is that the death which occurs with euthanasia is not caused by the patient’s underlying illness but by the action of the person administering the chemical. If any person attempts euthanasia in the United States, as I understand it, the act may represent a homicide regardless whether the patient approved the act. As an example, March 26, 1999, a jury in Michigan found Dr. Kevorkian guilty of second-degree murder and delivery of a controlled substance, for administering a lethal injection to a Thomas Youk, an ALS sufferer.

Assisted Suicide term as used in the United States is a death by the administration of a lethal dose of barbiturates, for example, by the patient themselves. The act that makes the suicide assisted is that the prescription for the lethal dose was written by a physician. The patients themselves decide when or even whether to take the pills and the physician is usually not with the patient when the patient takes the pills. Assisted Suicide is illegal in every state of the United States except the state of Oregon. There, the physician has to meet a set of criteria to issue such a prescription to a patient requesting to die. The assistance is in the form I noted above and not by providing the patient with a gun or other means to self-inflict death. I am not sure if there is the same uniform penalty in all states regarding a physician who is found to have assisted a suicide in the states other than Oregon. Perhaps some lawyer visitors here can answer that.

In the case of “Million Dollar Baby” what Clint Eastwood’s character did was to personally, as a non-physician, facilitate the death of a patient who requested death but was physically unable to perform the act. Unfortunately an explanation of exactly what he did is complicated by the fact that Clint's character first turned off the ventilator and though he was doing this at the request of the patient, the order for the ventilator was written by a physician and a physician must write an order to discontinue the unwanted treatment. If Clint’s character or any family member went into an ICU and pulled the plug of the ventilator out of the wall on their own, this might well represent manslaughter or a homicide. In addition, Clint’s character did not perform the termination of ventilator life-support as per the standard of medical practice which is to provide sedation by barbiturate or tranquilizer or narcotic just prior to removal to reduce the chance that the conscious patient would suffer the terrible discomfort of suffocation caused by the rapid accumulation of carbon dioxide in a person who is not breathing and before death occurs because of lack of oxygen. Now if a patient dies when, in clinical practice, the life-support is removed, the death can be ethically and legally considered as the patient dying from the underlying disease that led to the life-support. If the death is accelerated by the administration of the sedation medication, it is ethically accepted as the “double effect” principle (See the ADDENDUM below for criteria) since the intent of the administration of the medication was to relieve suffering from the suffocation with a drug known to relieve suffering and the acceleration was possibly expected but NOT intended. However, Clint’s character administered a dose of adrenalin which pharmacologically would not be expected to sedate but to accelerate or cause death and if the intent was to accelerate death or cause death to prevent suffering then the “double effect” principle would not pertain and the patient’s death might not have been due primarily to shutting off the ventilator.(Read the ADDENDUM below and decide for yourself if all the criteria for "double effect" were met.) Was this act euthanasia? Possibly. Would it be legal in the U.S.? No. Homicide in the U.S.? Possibly. Was the act assisted suicide? Not by definition. Unfortunately there was no legal determination since Clint’s character just walked out of the room and left the hospital and the story with no communication to the nurses on duty or the doctor. An unethical and unlawful ending to a tragic story that could have been made simpler, ethical and lawful by the carrying out of medicine’s long established and standard operating procedures for termination of unwanted life-support treatment. ..Maurice.

ADDENDUM: What are the criteria for "Double Effect"? All the following 5 conditions must apply to the act:
1) The Act is GOOD or MORALLY NEUTRAL
2) Only the GOOD effect is intended
3) The GOOD effect is NOT achieved through the BAD effect
4) There is NO ALTERNATIVE way to achieve the GOOD effect
5) There is a PROPORTIONALLY GOOD reason for running the risk

Clint, Congratulations on Your "Baby" BUT..

With tonight's Acadamy Awards winning by Clint's "Million Dollar Baby" for best actress, supporting actor,director and the best movie, Clint Eastwood deserves a round of applause and congratulations. BUT there is an issue to be settled. And that is the ending of the film. This evening I wrote to Clint my suggestions in the Comment section of my last post regarding a better ending which would promote better ethics understanding by everyone. However, I thought instead of my ideas being buried there, I would put a clone if it here as another posting so if Clint was around he could more readily access it. :-) ..Maurice.

First I would like to congratulate Clint on the Oscar winnings of his picture tonight. I think it was a very good movie.. but you know.. it could have been excellent and contributed constructively to the ethical education of the public and avoided the bad press of the "right to lifers" if the last part of the movie was handled differently.

Clint, may I talk to you directly here? I have thought of the best ending for your movie which would have kept the quality of the ending in keeping with the great quality of the first parts.
Keep the traumatic quadriplegia in the scenario. I think it is a realistic and emotionally important contrast to all the previous progressively upbeat winning. But.. first do away with the need for amputation without disclosing the patient's truely informed consent. Also the pictured lesion looked trivial and didn't appear, as I recall, in an anatomic area subjected to pressure.
More importantly, change the ending to a detailing of a conflict in decision-making by the patient herself.
Have her discuss the issue with her doctor. Have him be supportive and talk to her about the ethics of autonomous request for termination of life support but not directing her one way or another. Or maybe have him express to others how he feels about the position he is in... possibly having to turn off the ventilator. Have a physical rehabilitation representative present to give the patient the rehab view of the situation. Clint, you can give her loving support but you are uncertain whether she should leave you. Are you sure what is in her best interest? And how would your own interest enter into how you would talk to her about her decision? And then end the film with all the uncertainty of what she will finally decide and let the audience think it over as they leave the theater. This kind of indecisive ending might be the best mental exercise for the audience to think about the ethics and I don't think would impair the uplifting story preceeding it.

I leave it to my visitors to suggest their own endings. ..Maurice.

"Million Dollar" Ethical Lapse of Reality

I received the following e-mail from a physician, whom I don't know, but he appears to be very concerned about the ending of "Million Dollar Baby" and the ethical misinformation the public is receiving and wants everyone involved in ethics to spread his word. Since what he writes actually mirrors my own evalution of the movie which I saw, I thought it would be appropriate to put up on my blog virtually his entire e-mail communication for my visitors to read and be educated.

To all persons involved in ethics,

I hope you will help to correct a very unfortunate mistake that is
being made in the media. I hope there is time. The public's views on
end of life issues is harmed, with needless suffering for patients.

This was not a case in which euthanasia or assisted suicide had any
role whatever!

Crucial point of "Baby" missed: the patient has the right to refuse therapy!

The nation is buzzing with news about "Baby", but somehow the most
important point has been missed. Since the patient had the right to
refuse therapy, the dilemma of this movie could not happen. All
commentators are letting this simple fact fly by them.

Please, someone needs to set the record straight. Patients have a
right to refuse therapy! This movie's dilemma is not real in any
sense. The religious activists are wrong. The disability debate is
wrong. The commentators are completely wrong.

Swank's doctor should have removed the ventilator when she refused
therapy. Do you know anyone who would print my op-ed?

The public is poorly served by this very unfortunate distortion. All
persons have to live through the deaths of their loved ones, and we
all face dilemmas at the end of life. Unless the perceptions
generated by this movie are corrected quickly, the suffering of dying
patients and their loved ones will become much more difficult to bear.

I hope you can get this out to the public. Good luck!

This movie also distorts Catholic values terribly. Pope Pius XII
settled this question back in 1952.


+++++++++++++++++++++++++++++++++++++++++++++++++++++


Movie-Inspired Debate Over "Euthanasia" Is Absurd
"Million Dollar Baby" Deserves An Oscar -
But The Medical Ethics Debate Has Gone Off The Track


By James J Murtagh, M.D.

[... Note:James Murtagh has spent 20 years as Intensive Care
Unit physician at a major Southeast hospital.]

When they open the envelope for "Best Picture" at the Oscars next
week, I'll be rooting hard for Million Dollar Baby - the dazzling new
Clint Eastwood film about a woman left paralyzed after sustaining a
neck injury during a boxing match.

Because I like the movie so much, it's no fun to
report that both the film and its critics have made a major mistake:
they forgot that it's illegal for doctors to treat alert, rational
patients against their will. Somehow, the film distorts the medical
aspects of end-of-life decision-making almost beyond recognition.

Indeed, the movie's depiction of Hilary Swank's
character (the Baby) as paralyzed on a ventilator and begging a
friend to "pull the plug"- by sneaking into the hospital, turning off
her respirator and giving her a shot of adrenaline - completely
ignores the reality of routine medical ethics. Where was the
patient's doctor? That doctor had a moral, legal and religious duty
to honor the patient's wishes!

No one has to guess what Swank wants. She's not
unconscious, she's not a vegetable, she's not depressed. She's
depicted as completely rational. Which means that her wishes must be
obeyed. As a matter of fact, failing to honor a patient's
instructions for these end-of-life procedures is actually illegal -
and theoretically could result in criminal prosecution of any doctor
who insisted on keeping a patient alive artificially against the
patient's will.

Unfortunately, the medical premise of Million Dollar Baby is
dead wrong, because Baby could have refused the ventilator without a
quibble, merely by asking. Since the famous Karen Quinlan case 30
years ago, U.S. doctors have been totally prohibited from insisting
on unwanted therapy against a patient's wishes.

Pope Pius XII, himself, understood as much in 1952, when he
condemned "extraordinary means" to maintain life against the will of
patients. The major religions are in agreement. I have worked with
chaplains and rabbis of all faiths to help patients make these
decisions - and most of the priests I work with have written advanced
directives to ensure they are never placed on a ventilator against
their will.

Gray areas do arise when a patient is unconscious, however.
Difficult ethical cases come up all the time. But a rational, talking
patient could have refused the ventilator, the IV fluids, medicines,
surgery - or a dozen other treatments needed to stay alive. Is the
film really suggesting the doctors took the patient to surgery to
remove a leg, in order to save her life without her consent? Had Baby
refused the operation, she would have died from infection, and she
would have spared the Eastwood character his torment, and her own
attempt to end her life by biting her tongue.

Apparently unaware of this medical reality, the creators of
Baby came up with a thoroughly Orwellian and barbaric plot twist in
order to solve a non-existent problem - by having Eastwood sneak into
Baby's hospital room to pull the plug.

But if the movie's depiction of a typical ventilator scenario
was absurdly unrealistic, the talk-show and op-ed page debates that
have followed it seem even more ludicrous. While conservatives Rush
Limbaugh and Michael Medved huff and puff about "the sacred right to
preserve life" and disability activists protest the depiction of
Baby, nobody seems to have grasped a key fact: This is a total
non-issue in American hospitals today!

Like most ICU doctors, I learned a great deal about
end-of-life decisions during 20 years of caring for people. I do my
best to treat pain and depression in these patients, while also doing
everything I can to show them that life can be worth living. More
than once over the years, I found myself referring to the inspiring
example set by paralyzed actor Christopher Reeve, who lived a rich
and creative life on a ventilator, while also becoming a hero to
millions. Like Reeve, severely disabled scientist Stephen Hawking
and scores of other disabled Americans are honored precisely because
they've made the decision to soldier on, despite pain and obstacles.

Nonetheless, disabled patients - like all other
patients - enjoy the right to refuse therapy. Jehovah's Witnesses are
permitted to refuse life-saving blood, and all patients are free to
refuse life-saving surgery. To insist otherwise would be to
transform the ICU unit into Orwell's "Big Brother" - a tyrant who
would ride roughshod over a patient's innate right to allow nature to
take its course, and to die in dignity.

Like most people, I sometimes found myself wondering
during my earlier years: What would happen if I became severely
disabled? Would I choose to turn the ventilator off? And then it
actually did happen, several years ago. Suddenly I faced the same
questions that had confronted Reeve and many other disabled patients.
Fortunately, I recovered, but I will never forget walking in the
shoes of a critically ill patient.

Anyone walking in the shoes of severely disabled
patients would find it truly terrifying. Some states of life are
worse than death. I applaud Reeves and others who continue
life-sustaining therapy - but if any person had decided otherwise, I
certainly wouldn't have wanted medical staffers forcing tubes down
throats and keeping person's alive against their will.

As a medical doctor and a patient, I've been given a
rare glimpse into both sides of this important public issue. And
that experience has taught me a crucial lesson: We need to focus on
real problems at the end of life-and not on the boogey man!

I am very afraid that patients seeing this film will be
misled on their real options, and will wind up fearing Frankenstein
ventilators run amok.

As both doctor and patient, I urge all of us to ignore the
medical distortions contained in this film - and to treat it as an
opportunity to explore the deep and searching questions that will
face us at the end of life.

Maurice's Comments: I fully agree Where was the patients physician? Where was the ethics committee to help educate the patient and physician (and, by the way, the viewing public) on the well established ethics and law? Where was the advocate of the disabled, the rehabilitation therapist to provide the patient with factual information of what could yet be done to help her live maybe a worthwhile life if she elected not to turn off the ventilator? Where was the chaplain to support her spiritually during this difficult decision-making time and perhaps get an understanding of her religious motivations? It certainly didn't require a friend to facilitate her death if this was not a lapse of reality. ..Maurice.

Organ Donation: Who, How,Why and also What are the Ethics? (5)

There is a source of organs for transplant that represents one of the highest forms of humanistic altruism and that is an organ donation from a living donor. But there are real ethical and psychologic concerns about this action and it is on this topic that I would like to conclude my series on organ donation.
You first need to read the article in Virtual Mentor in which reporter Chris Fusco wrote about his series of articles in the Chicago Sun-Times where he describes his experiences as a living donor of part of his liver. In Virtual Mentor there is a link to the Sun-Times where you can access these articles. The following is a brief excerpt from the start of the Virtual Mentor article which sets the beginning of his journalistic endeavor.

When journalists have opportunities to escape their newsrooms and report stories first hand—to spend days, weeks, or even months with their subjects—they usually chomp at the bit to take them. In most cases, I would, too. But this story was personal. It was August 17, 2000, when my childhood friend Mark Mucha told me that he had liver cancer and might need a living-donor transplant to save his life. Four of my friends and I ended up on the short list to be Mark’s liver donor, and, after nearly 4 months of waiting, I was selected. Adding to the drama was that Mark was a new dad, and that my wife Jennifer was 8 months pregnant with our first child when Mark and I went into surgery on December 12, 2000. We were both 28. … The problem was that this story did not have a happy ending. Mark died on March 25, 2001, after a series of complications that included my liver failing him and a second transplant not working, either

The problem with living donors compared with dead donors is that both parties are alive and aware of the gift and the donor and the recipient may each have their own good feelings of what has happened but each may also have their own uncertainties about it too. If both parties remain separated and anonymous to each other some of the psychologic issues of the transplant will be moot but even if they had not met, there may be a drive in both to finally meet and express their feelings to each other. Some of the feelings that have been discussed by those studying living donor transplants have to do with a feeling of duty by the recipient to, in some way, pay back the sacrifice of the donor. Remember, no money has changed hands or is legal as part of the transplant. Even, though initially the donation represented an altruistic gesture, the donor may eventually expect something back from the recipient. But what is the “something”? This may lead to an unhealthy relationship developing between these two individuals and even their families unless these hidden feelings are brought out. Would it be ethically more beneficent to both parties if the transaction was handled as a sale of a commodity? Yet this idea of selling organs brings up a host of other ethical issues regarding issues as simple as whether the human body parts can be considered commodities. Also what impact selling organs would have on from where the organs would be coming? For example, would this lead to those people who were financially poor to be the more likely population to take the physical risks of surgery and loss of an organ or tissue rather than those financially well off? And would this be just? Would selling organs stimulate a “black market” of organs and be associated with criminal behavior?

What about the situation as described in the story by Chris? The liver tissue that Chris donated “failed” Mark. Think of what a donor might consider if this should happen. Was it the donor’s failure or was the recipient not compliant in some way and caused this to happen? And what about a perhaps unrealistic guilt a recipient might have about this failure.

Another issue about living donors is the greater possibility that the donor will be aware of the specific recipient and that the chances for a directed donation would be more likely depriving those in need on a waiting list for that organ.

These are just some of the issues along with those in my previous posts that have been of concern regarding organ donation. And now for the "Why" regarding the continued dependence on organ donation. At present there is no simple and more permanent way to substitute organ function. Ideally, the answer to the problem of providing life supportive treatment to those whose vital organs have failed them is to eliminate organ transplantation entirely. After all this procedure is only available to a small fraction of those in need. The preservation of a transplanted organ may require a lifetime of compliant complex medical management. What would be best if we can’t prevent even premature organ failure by specific approaches would be to study and try to develop organ repair and regrowth with the use of human stem cells based on their suspected potential value. If this was possible, organ donation along with its limitations and ethical concerns would become an extinct procedure. ..Maurice.

Organ Donation: Who, How,Why and also What are the Ethics? (4)

The organ donation, procurement and transplant process is fairly well established in the United States. The UNOS (United Network for Organ Sharing) has representative organizations in all parts of the country to actually make the contact to donors and find the appropriate recipients. There are numerous policies to keep the process fair and just. However, there are some areas of ethical concern that remain. In the process of getting consent for the donation of organs, great care is taken by all institutions that conflict of interest is avoided. Specifically, that means that the patient’s physicians and other hospital caregivers avoid talking with family about organ donation of their family member who by procurement criteria might be a potential candidate. A representative of the organ procurement organization, who has no responsibility for patient care, talks to the family about possible donation. In this way, there is less chance that it would appear that the patient’s medical team is involved in the procurement and therefore might be attending to the interest of obtaining an organ and not the interest of the patient. It is the patient’s physician or representative who pronounces death and not the procurement team. The costs of procurement are borne by the procurement organization.

With regard to consent, response of the family may at times be very conflicting. This particularly occurs when there is a written directive by the patient to donate organs after death and the family then refuses to follow the directive. In this case, often the family’s decision against donation trumps the patient’s request and the procurement organization will tend to obey the family. This decision by the organization may be related to legal concerns regarding the family’s legal authority over the body of the deceased. Though written statements of the patient’s property is carefully followed by legal process, the patient’s body and what is done with it appears to be the responsibility of the family. This creates an ethical concern regarding the autonomy of patient requests. It is very important that people who wish to donate organs after death make their wishes very clear by, in addition, communicating this directly to their families rather than solely depending on some written document or check off on a drivers license.

Whereas, some years ago, in an attempt to be sure that the vital organs were going to get adequate oxygenated blood flow during the period between termination of life-support and death, procedures were carried out which could have been interpreted as actively hastening the patient’s death. This was an ethical “no-no” since it was felt that if the patient was to die it should be due to the underlying illness and not because of something done to better the organ survival. The policy is that nothing be done as part of the procurement process until the patient is pronounced dead. However, in patients who are to be non-heart beating donors (see my first posting on the subject) there is debate as to when death actually occurs. For example, is the patient really dead after 2 minutes of the heart not beating or after 5 or 10 minutes? There is still even some argument by some neurologists and other specialists about whether the patient is really dead after brain death has been pronounced since even with mechanical ventilation support, the heart may continue beating for hours or occasionally longer but eventually will stop. Certain secretions and endocrine and other metabolic activities can be detected for days. However, no patient recovers life. A logical suggestion has been made that the criteria given in these situations regarding whether death has really occurred should be revised to say simply that they meet ethical and legal requirements for organ procurement since there is no recovery of life when the criteria are met.
More later about ethics of organ donation. ..Maurice.

More on Schiavo: Florida’s “Starvation and Dehydration of Persons with Disabilities Prevention Act”

In today’s news, the Florida Circuit Court judge George Greer has extended a stay of the Terri Schiavo case for 2 days to decide whether to prolong the stay further for additional medical tests or follow the termination order of the previous stay by the State Appeals Court allowing the husband to direct the physicians to remove Terri’s feeding tube. However, don’t be surprised if the Florida legislature rushes to complete and the governor signs into law HB 701 2005 filed Feb 4 2005 and reviewed in three House committees on Feb 18th. The act was to be titled "Starvation and Dehydration of Persons with Disabilities
Prevention Act.",and as summarized on the Florida House of Representatives website ”Declares that an incompetent person is presumed to have directed health care providers to provide the necessary nutrition and hydration to sustain life; prohibits a court, proxy, or surrogate from withholding or withdrawing nutrition or hydration except under specified circumstances; provides that the presumption to provide nutrition and hydration is inapplicable under certain circumstances; conforms provisions to changes made by the act; declares that the act supersedes existing court orders otherwise applicable on or after the effective date of the act.” (A pdf copy of the act can be accessed at this link.)

I suspect that the Florida legislature and Governor Jeb Bush are out to prevent the discontinuing of Terri Schiavo’s tube feedings. But this act, seemingly to change years of court rulings for one patient, may nullify the results of ethical and legal consensus regarding the authority of a legal surrogate to provide substituted judgment in medical decision-making.

(Note: My previous posting on the Schiavo case was on January 24, 2005.)
..Maurice.

Organ Donation: Who, How,Why and also What are the Ethics? (3)

In the last post, I quoted UNOS ethics committee from their white paper presenting a view for discussion about having convicted criminals as recipients of organ donations. I have found the following UNOS statement which was published by their News Bureau to clarify their stand on the issue of organ recipients. I presume this statement, dated February 6, 2002, represents their present stand. ..Maurice.

UNOS Statement
February 6, 2002 Contact: UNOS News Bureau (804) 327-1432
Prison Status and Organ AllocationRecent news coverage of a prison inmate in California receiving a heart transplant has sparked interest across the country. The United Network for Organ Sharing feels that some clarification on how the nation’s organ sharing system works would be helpful.

· The United Network for Organ Sharing (UNOS) coordinates the nation’s Organ Procurement and Transplantation Network (OPTN) under contract with the US Department of Health and Human Service.· The OPTN was created in 1986 under the auspices of the National Organ Transplant Act (NOTA). NOTA is a federal law, which outlawed the sale of human organs. It also specifies that the OPTN establish medical criteria for organ allocation. Medical criteria for organ allocation include compatibility of the donor and the recipient and medical urgency.

· Social criteria such as celebrity status, wealth, or prison status, are excluded from medical criteria and therefore are not permitted in consideration of organ allocation. Federal law permits use of medical criteria, not social criteria in organ allocation policies.

· The transplant community allows the evaluation of prisoners for transplant candidacy because prison status is a social worth distinction, not related to medical treatment of disease. Based on medical criteria, transplant programs decide whether to accept any individual patient for treatment. The evaluation does not include social criteria such as criminal or prison status, employment or wealth. It does include the likelihood of survival and of patient compliance with long term medication requirements to prevent rejection.

· Being listed on the UNOS national patient waiting list for organ transplant does not guarantee any candidate an organ

· The OPTN/UNOS Ethics Committee is on record as saying that criminal or prison status, in and of itself, should not restrict consideration of a potential transplant candidate. Prison status is most often temporary. Most prisoners eventually get out of jail through due process. A decision to provide or withhold lifesaving medical treatment for a prisoner is permanent and may not come under any due process.

Organ Donation: Who, How,Why and also What are the Ethics? (2)

One of the ethical issues that face the transplant program in the United States involve “who”gets to donate an organ and “who” gets to receive the organ. Of current ethical concern pertaining to “who” gets to donate is the condemned prisoner on death row. The other ethical concern pertaining to “who” gets to receive the organ is the convicted criminal. There are other ethical “who”s which I will note later.

There is always discussion with regard to increasing the pool of potential organ donors. There has been a suggestion made for a proposal or law which would allow a prisoner condemned to die to have the sentence changed from death to life imprisonment by, for example, a kidney donation. The concerns are summarized in white papers written by the ethics committee of UNOS (United Network for Organ Sharing), the U.S. government designated organ procurement network. The committee wonders whether the “proposals would be coercive to particular classes of individuals--minorities and the poor” which may well represent the classes most likely found on death-row. Further, “would the reduction in sentence apply to the offer to donate, or would it only be honored if the act of donation took place? If the act of donation would exclusively qualify for the reduction in sentence, then the law or policy would discriminate against individuals found to be medically unsuitable to donate organ.” Additionally, concern is expressed about the reaction of jurors deciding punishment if they were aware of the possibility of trading an organ for reduction of sentence from death to life in prison. “…potential jurors could be influenced and ultimately impose the death penalty more often with a potential societal benefit in mind. Jurors might hope that the convicted persons would choose to trade their kidney for their life. This would present a gross inequity for those unable or unwilling to donate a kidney and who might otherwise have not received a death sentence.” Another issue would be if physicians were involved in the execution process itself in order to procure healthy organs for transplant. This would represent unprofessional and unethical behavior on the part of those physicians. Can you think of some more ethical problems with prisoners as organ donors?

With regard to convicted prisoners receiving organs, the UNOS ethics committee paper reminds us of the view that “convicted criminal status should be irrelevant in the evaluation for candidacy as a potential transplant recipient. This position assumes that convicted criminals have been sentenced only to a specific punishment, i.e., incarceration, fines, or probation. However, the convicted criminal has not been sentenced by society to an additional punishment of an inability to receive consideration for medical services. This argument also emphasizes that criminals not sentenced to death are expected to return to society and be deemed worthy of equal treatment in the receipt of other items/services distributed by society.” However, the medical and psycho-social criteria that are used to evaluate any potential recipient for organ transplant would equally apply to the prisoner.

Finally, I might add a couple more “who”s to the list of ethical issues that have been written about regarding organ transplant. Should a parent give permission for their minor child, who may be at an age without the capacity to make their own decision, to donate a kidney for a needy sibling? And with regard to “who” gets the organ, if the recipient is specifically designated by the donor to receive the organ, should this trump other worthy patients on a transplant recipient list? Should a patient use the Internet to try to directly contact potential donors and bypass the UNOS system to obtain the needed organ? And if you were a Supreme Court justice and because you were a Supreme Court justice, would you expect to get a kidney, bypassing others on the list? To the last question, the answer from UNOS is a resounding “NO”. Although the example of a justice is not mentioned, all patients on the list are to be justly evaluated. ..Maurice.

Organ Donation: Who, How,Why and also What are the Ethics? (1)

The need by the sick for donated vital organs far exceeds the supply. Through the years the supply was provided primarily by certain organs obtained from freshly deceased patients and from live donors who altruistically donated a kidney, part of a lung or part of a liver as example. For the most reliable organs to be obtained after transplantation into a sick patient, the organ needs to have maintained good circulation and oxygenation and therefore should be removed as soon as possible after death or better while the donor is alive as in the case of the live volunteer.

In order to increase the numbers of organs available, the concept of brain death was developed. This condition is identified if there is neurologic evidence of complete and irreversible absence of function of the whole brain including the brain stem where respiration and cardiovascular control is located amongst other functions. A brain dead patient is therefore considered dead and even though the heart may still be beating for a while and while respiration is being maintained by machine, organ procurement can be ethically and legally begun with the previous permission of the patient and/or the family.

Finally, another source for organs has gained popularity given, as stressed by ethical consensus in recent years, that care is taken to conform to strict ethical boundaries. This source is termed non-heart beating organ donation. The valuable aspect of this source is that the donor patient can be kept alive until the surgeons are ready to procure the organs and therefore the organs will be in better condition than from a patient whose death was spontaneous and maybe unwitnessed. The non-heart beating organ source is a patient who is terminally ill and by advance directive has declared that he or she did not want to be maintained on life-support if there was no hope for recovery and the either the patient or family agreed to an organ donation. In this case, even without organ donation, the patient’s life-support such as ventilator and blood pressure maintaining medications would be at some point removed and the patient would then die. In the case of organ donation, the point in time when the life-support is removed is determined when the surgeons are ready to procure the organs. While the surgeons are standing by, the life-support is terminated and then the patient is observed for the heart to stop beating. When this occurs, there is a wait of from 2 to 5 or even 10 minutes and if the heart does not resume, the patient is considered dead and the operation to obtain the organs begins. If the patient’s heart continues to beat, the patient is usually watched for another hour and if no cardiac arrest has occurred by then, any attempt of procurement is abandoned and the patient is returned to the ward for comfort care until death occurs.

I will discuss in my next posting some of the ethical issues involved with organ donation including brain death and the non-heart beating donation. Can you think of some of them yourself? ..Maurice.

Dying Slowly and Finding "What a most delicious piece of fruit"

A monk was being chased by a panther when he found himself on the edge of an embankment. His eyes rapidly scanned the bank. He saw a rope which he believed would serve as his escape route. He quickly began his descent, but looking down he saw a second panther waiting below. He looked up again, this time to see a mouse gnawing on the rope. He stopped. In front of him and within arm's reach he saw a ripe strawberry. He picked and carefully placed it in his mouth. 'What a most delicious piece of fruit,' he said.

Wayne Holst starts his book review of "What Dying People Want: Practical Wisdom for the End of Life", by David Kuhl in Western Catholic Reporter October 2002 with that Zen Buddhist lesson. Continuing, Holst writes:

'The moment someone is told that their illness will likely result in death, time changes,' writes David Kuhl. It is an occasion unlike any other.

Kuhl, a Soros Faculty Scholar for the Project on Death, specializes in helping people better understand the experience of dying and bereavement. He is committed to influencing change in the way our culture treats death.

The author, a Vancouver-based physician, believes that - dreaded as it is - the realization of impending demise can actually transform the experience of dying into a special time.

Read the entire review. You may also wish to read the book itself. I think to better support the patient, each physician caring for a slowly dying patient needs to have some understanding of how the patient is emotionally and spiritually handling the remaining lifetime. This may be difficult because of the physician's schedule but probably there is more to this difficulty than time. There may be a tendency for a physician to begin to draw away from the dying patient because of associated personal feelings of inadequacy or failure. And this would be terribly unfortunate for the patient because of the patient's need at this time for comfort support both physical and emotional. This period in the patient's illness can represent one of the most challenging times for the patient but also challenging for the patient's doctor. The physician's response to the patient's needs at this time will separate those who are simply Dr.Technician from those who are Dr.Marcus Welby,M.D. ..Maurice.

p.s.- To complement this subject you may also want to read the posting about "Telling Bad News". Scroll down to July 18, 2004 for that piece.

Patient: "There is no preparation for a death sentence, is there?"

Doctor: “There is a lifetime.”

For those who die swiftly there is usually the absence of pain and suffering and that is good. For those who die slowly, there is often the burden of pain and suffering which medical science cannot always fully remove. And this is the dark side of dying slowly. But there is a bright side which those who die swiftly never have the chance to experience. The bright side is having some time to review the years of your life which have gone by and perhaps finding meaning to living that you never really experienced previously. Dr. William G. Bartholome, M.D., a pediatrician and ethicist had a chance to die slowly with his esophageal cancer and he wrote about the bright side. (“Living in the Light of Death,” Bulletin 45(2): 52, University of Kansas Medical Center, April 1995)

To live in the bright light of death is to live a life in which colors and sounds and smells are all more intense, in which smiles and laughs are irresistibly infectious, in which touches and hugs are warm and tender almost beyond belief. To live in this awareness of who, what, and where I am is to live more fully than I ever dreamed possible. Life doesn’t seem like a box of chocolates; it seems like endless servings of incredibly rich chocolate mousse.
I had not known this kind of living before. I wish that the “final” chapter in all your stories will be one in which you are given the gift of some time to live with whatever illness proves to be your fatal illness. But even more, I wish that you could discover what I now know — that this is the only way for us humans to live!

Dr. Bartholome died August 2nd 1999. ..Maurice.

p.s. (Added 2-26-05) For those who would like to learn more about dying from the aspect of the dying patient, the family, physicians and hospice care, click
here to go to NPR and "All Things Considered" for transcripts and audio (you need RealPlayer). This location contains the beginning segment of a week-long presentation of death and dying produced in 1997.

The Ethics Committee Consortium: Working Together to Make Better Ethics

Believe it or not, even though clinical ethics has been around as a formal discipline for well over 20 years and many ethical issues are more or less settled both ethically and legally, there are still areas of ethical consternation. Most hospital ethics is the pervue of a committee (usually called the hospital ethics committee) now specifically required for hospital federal certification. I have described the history, composition and function of the hospital ethics committee in my posting of December 17,2004. Each committee in each hospital in the U.S. creates its own policies or guidelines, in their own terms, to deal with numerous situations which may arise from "do not resusitate" to organ donation to withdrawal of life support. If any of these issues ever went to court because of a conflict which could not be resolved within the hospital, each policy and guideline would be specifically scrutinized by the court and then perhaps compared with those from other hospitals. This potential for court scrutiny and the possiblity that some legal error might be found to the detriment of the hospital's case has become of more concern when yet controversial issues persist such as the definition of futility.

To mitigate against this possibility is one of the motivating forces that has led to the development of ethics consortiums in which a number of hospital ethics committees within a geographic area have come together to meet and present to each other their issues and the actions taken. Besides disseminating experiences, these consortiums are able to work together to try to form a consensus regarding policies and guidelines for these still controversial issues. If this is sucessfully completed and utilized by all the hospitals participating, such consensus documents would be expected to represent a standard of acceptable ethical decision-making if a conflict is taken to court.

As an example of such an active consortium, I am participating as representative of my local hospital in the Southern California Bioethics Committee Consortium where over 50 hospitals in the Southern California area are members. Each representative reflects their committee members who comprise mixed professional disciplines and include community (not hospital affiliated) members. The current issue is who should be the surrogate decision maker for incompetent patients who have no family, friends or anyone else who knows the patient and could be a surrogate. Hopefully, if we all can come to a consensus our final guidelines on this topic will bear more legal clout and ethical comfort than a document written by each hospital alone. ..Maurice.

“Bedside Rationing”: Is It Ethical? Would It be Effective?

There has been much discussion in recent years about “bedside rationing”. These discussions really involve the issue of what is the ethical role of the physician. Is it to provide the best treatment to the patient with only the patient's beneficence in mind or is it also to consider the societal implications of medical care and to withhold certain treatments to specific patients because of costs or scarcity, thus perhaps providing beneficence to society in general? After all, one may argue, that it is society who has given physicians their special privileges and therefore physicians should also be responsible to society.

In an excellent journal review of the issue of bedside rationing, Renee Witlen writing in Virtual Mentor first considers the views of P.Ubel, R,Arnold "The unbearable rightness of bedside rationing: physician duties in a climate of cost containment".( Arch Intern Med. 1995;155:1837-1842). She then presents opposing views. Here is an excerpt from the beginning of the Virtual Mentor article. I would strongly advise my visitors to click on the link above to read the entire piece.

In their 1995 article, 'The Unbearable Rightness of Bedside Rationing: Physician Duties in a Climate of Cost Containment,' Drs Peter Ubel and Robert Arnold assert that physicians should engage in bedside rationing in order to contain rising health care costs. They define bedside rationing as 'physicians"actions to withhold beneficial care from patients that physicians were free to offer them" and confine their discussion to rationing done "either without patients being aware of the rationing or, less often, with patients being aware but being given no choice". Many physicians and ethicists have rejected this role for physicians in the belief that physicians must advocate for the individual patient, even acting, if necessary, against the "apparent interests of society as a whole". Ubel and Arnold contend that if bedside rationing is conducted correctly, it is morally acceptable and, in conjunction with rationing decisions at higher levels of health care organizations, constitutes the only viable way to contain health care costs in the short and medium term.

Do you think that bedside rationing is fair and would be effective only in countries that have national health plans, where there is a more uniform allocation of healthcare resources as compared to our USA private/governmental forms of healthcare delivery? Let me know what you think. ..Maurice.

Gaming the System and Following The AMA Principles of Medical Ethics: What is Ethical?

In order to understand the professional dilemma faced by a physician we should first look at the AMA Principles of Medical Ethics (2001)

Preamble:
The medical profession has long subscribed to a body of ethical statements developed primarily for the benefit of the patient. As a member of this profession, a physician must recognize responsibility to patients first and foremost, as well as to society, to other health professionals, and to self. The following Principles adopted by the American Medical Association are not laws, but standards of conduct which define the essentials of honorable behavior for the physician.
I. A physician shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights.
II. A physician shall uphold the standards of professionalism, be honest in all professional interactions, and strive to report physicians deficient in character or competence, or engaging in fraud or deception, to appropriate entities.
III. A physician shall respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interests of the patient.
IV. A physician shall respect the rights of patients, colleagues, and other health professionals, and shall safeguard patient confidences and privacy within the constraints of the law.
V. A physician shall continue to study, apply, and advance scientific knowledge, maintain a commitment to medical education, make relevant information available to patients, colleagues, and the public, obtain consultation, and use the talents of other health professionals when indicated.
VI. A physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical care.
VII. A physician shall recognize a responsibility to participate in activities contributing to the improvement of the community and the betterment of public health.
VIII. A physician shall, while caring for a patient, regard responsibility to the patient as paramount.
IX. A physician shall support access to medical care for all people.

How can a physician resolve upholding the standards of professionalism including avoiding engaging in fraud and deception (Principle II) and at the same time “while caring for a patient, regard responsibility to the patient as paramount” (Principle VIII)? Physicians have argued that when a patient needs a test or treatment and the insurance company obstructs then “gaming the system” is deserved in order to do the best for the patient. One could respond, why not respect the law and follow Principle III by trying to change the system. Well, what about that patient that needs attention now? It is a difficult dilemma and as you can see by the study in AJOB noted in my last posting both physicians and patients appear to be motivated to engage in gaming.

Another ethical concern which places a professinal conflict between Principle VIII and the Principles of VII and IX is related to the suggestion that because of the need for cost containment and sheparding of scarce resources there should be encouragement of bedside rationing. I’ll put up a resource discussion on that topic later. ..Maurice.

Lying to Insurance Companies: The Desire to Deceive among Physicians and the Public

Read the abstract below of the article "Lying to Insurance Companies: The Desire to Deceive among Physicians and the Public" by Rachel M. Werner, G. Caleb Alexander, Angela Fagerlin, Peter A. Ubelin the Fall 2004 issue of The American Journal of Bioethics 4(4):53.

Abstract
"This study examines the public's and physicians' willingness to support deception of insurance companies in order to obtain necessary healthcare services and how this support varies based on perceptions of physicians' time pressures. Based on surveys of 700 prospective jurors and 1617 physicians, the public was more than twice as likely as physicians to sanction deception (26%versus 11%) and half as likely to believe that physicians have adequate time to appeal coverage decisions (22%versus 59%). The odds of public support for deception compared to that of physicians rose from 2.48 to 4.64 after controlling for differences in time perception. These findings highlight the ethical challenge facing physicians and patients in balancing patient advocacy with honesty in the setting of limited societal resources. "

If you were the patient's physician who by professional standards of medical care needed a test or procedure but which required your time taken to make an appeal to an insurance company and you knew that your appeal may be rejected because the findings would not meet the company's requirements, would you take a risk of defrauding the insurance company with false history or physical findings which would make acceptance of the request more likely?
After all, you might rationalize, your doing this for the medical and financial benefit of your patient.

But what if you are a patient with the same scenario. Would you ask your physician to deceive your insurance company for your own benefit?

I will write more about this professional ethical and legal issue later.
..Maurice.

More on Conflict of Interest: Wearing Two Hats: Clinician and Researcher

For those of my visitors who would like to read more about the ethical conflicts of interest which can occur when the same individual is both a clinician and a clinical investigator, I would recommend reading the article written by KATRINA A. BRAMSTEDT, PhD in
CLEVELAND CLINIC JOURNAL OF MEDICINE VOLUME 71,NUMBER 11 NOVEMBER 2004 titled "A Guide to Informed Consent for Clinician-Investigators". In it she describes the potential conflicts and also provides a guidline to obtain informed consent from the patient-subject. This may help mitigate some of the ethical issues but I think not all of them since it may be difficult for the clinician/investigator to fully divest one responsibility for another. I have excerpted her comments about conflict of the dual role of the physician-investigator below. To read the entire article in pdf format go to Cleveland Clinic Journal of Medicine.

An innate conflict also exists when one person
is both physician and clinical investigator,
especially when subjects are drawn from the
physician’s own pool of patients. In this situation
the physician assumes the dual role of
both caring for patients and performing
research on them, two functions that may
conflict. Several ethical issues may arise as a
result of outlooks of both the physician and
the patient.
Coercion to enroll or stay in a study.
One danger is that a physician may aggressively
recruit research subjects to the point of
coercion and may not fully inform patients of
the study’s risks or other treatment options.
The potential for a problem is especially great
when the sponsors of a study offer financial
bonuses to investigators for rapid enrollment.
In the case of Guckin v Nagle, a surgeon
who also functioned as a clinical investigator
recommended an experimental intervention
as “the best therapeutic alternative” for a
patient’s occasional fecal incontinence. The
patient’s anal sphincter was permanently
damaged when the radiofrequency device
overheated and failed to shut off automatically.
The consent form did not indicate that the
procedure was part of a clinical trial, nor did it
mention alternative treatments. The patient
argued that she was a victim of “therapeutic
misconception,” that is, she believed that the
intervention would directly benefit her based
on the information provided by the surgeon
and the consent form.
In the case of adverse events occurring
during a study, a physician-investigator may
be tempted to choose an intervention that
keeps the individual enrolled rather than one
that is clinically the most appropriate.
Patient confusion about the dual role. A
patient may feel obliged to enroll in a study to
“help” his or her doctor in return for the care
the doctor provides. Patients may also feel that the doctor would not be offering study
participation unless it were safe or to their
benefit.
Patients are especially vulnerable when
they are desperate for treatment or if they
lack health insurance. In such cases they may
seek out research studies as a form of health
care.

..Maurice.

Conflict of Interest on Wearing Two Hats: Clinician and Researcher

I have posted here (Jan 8 2005, Dec 23, 26, 13 2004) about situations where physicians play professionally two roles (wearing “two hats”) and the need to be concerned about the potential conflict of interest this raises. On the blog Respectful lnsolence Orac writes about his experience as a physician and also a scientist in the “two hat” role. The discussion centered about academic and financial issues. I added a comment about another possible conflict of interest between the role as a clinician and a clinical researcher with regard to the relationship to the patient-subject. Obviously, a physician who does purely laboratory research will not experience this conflict. I wrote:

I may have missed it in reading all the text on this topic but isn't a discussion of the "two hat" conflict of interest of the physician/researcher with regard to the issue of the patient's informed understanding the research study yet to be considered here? By being a physician, even not the primary treating physician, doesn’t the patient expect a beneficial treatment from you and not an unknown or ambiguous treatment or no treatment at all within a study that both you and the patient participate?
Also are you not under a professional duty as a physician to provide care and avoiding maleficence. And yet as a researcher, your professional duties in clinical research do not require you to provide any treatment but to try to assure that the results of the study will be meaningful and worth the risks which are to be kept to a minimum. The responsibilities of each role, independently, might be understood by a patient-subject but can the role of those who are wearing "two hats" also be understood and accepted?

..Maurice.

The fMRI Studies:The Ethical Decision Process: Reasoning vs Emotions

I presented to ethicists on a bioethics listserv my last posting about the fMRI study results documenting in neurophysiological terms that ethical decision-making involves emotions to varying degrees in addition to reasoning. I thought my visitors might be interested in reading their responses which follow:

I don't think that these studies present a problem for moral philosophy
or even the rationalist tradition in moral philosophy. Rather, they
demonstrate a misunderstanding of basic moral philosophy on the part of
the researcher. There are two related fundamental flaws, as I see it,
with this study and studies like it, and that is that 1) they are merely
descriptive in nature, whereas most moral philosophy is normative and
2), they misunderstand the basic nature of most moral philosophy they
aim to criticize. This study describes how average people DO evaluate
moral problems...the study says nothing about how moral problems OUGHT
to be evaluated. If we want to focus on the rationalist tradition, Kant
would be the standard bearer, and he readily admits that most do not
make their moral evaluations based upon reason, but rather inclination,
emotion, etc. Thus, if anything, this study would support Kant's
conjectures about how most people evaluate moral dilemmas, but say
nothing about whether Kant is right regarding how moral dilemmas should
be evaluated. Put another way, if a similar study were done using fMRIs
of those same study subjects regarding the evaluation of the results of
fMRIs, I suspect we would see an entirely different result than if we
performed the same tests on the researchers. In my own case, I imagine
you would get the fMRI equivalent of crickets chirping...very little
activity at all. Does that mean that the evaluation of fMRIs is done in
the areas of the brain associated with blank stares, crickets chirping,
and the evaluation of Jackson Pollock paintings (in my case, sorry, I
just don't get them!)? Of course not. These studies make a gigantic
leap from is to ought, without even attempting to provide us an account
for why that leap is justified...at least Hume offered an account.

Many people explain that they make moral decisions based on a "gut feeling"
or
instinct. In Aristotelian terms, we would say that the individual, at some
point, used reason to determine the proper action in a particular situation.
Over time, the same choice was made and eventually it became a habit, what
the
person terms a gut feeling. Biologically, the first few times one encounters
a
dilemma, that choice would take place in the reasoning part of the brain,
but
after a while, once it becomes habit and gut feeling, then its processing
would take place in the more emotion-centered parts of the brain.

For a good account of decision making based on reasoning vs "gut feeling",
an excellent read is the best-seller "Blink" by Malcolm Gladwell. He outlines
how many judgments are made quickly, using "thin-slices" of experience, in
which the reasoning process occurs, but does so out of the awareness of the
judgment-maker.

Very few ethicists have thought that ethics is wholly contained in the
activity of "pure reason." I think, rather, that there is a widespread
idea that, first, only creatures capable of reason can be moral agents,
and second, that the practice of ethics is a quintessentially rational
activity, characterized by the production and criticism of reasons
either for or against various courses of action. Ethics seems to involve
a sort of judgment which answers to reason. Nobody should be surprised
if strong emotions accompany or are associated with ethical convictions.
What would be surprising is to find that such convictions are impervious
to reasons.

As you can see by the comments above, the role of emotions in moral judgment is not unexpected by these professionals. Though confirming the role of emotions in judgment, I am not sure what these fMRI studies do to advance the understanding of the judgment process. Are there any congnitive neurophysiologists out there to respond? ..Maurice.

Watch Out! A fMRI is Watching You!

As a segue from the topic of the last posting, I would like to write about research into the neurophysiology of the various decisions and pronouncements made by ethicists themselves. And I really don’t see ethicists talking or writing about this yet. Using fMRI technique and with the background of knowledge regarding functional to anatomic correlations of brain processing, information is being developed about how people make ethical/moral decisions from a neurophysiological point of view.

For example, here is an abstract of a Sept. 14 2001 paper in Science titled
"An fMRI Investigation of Emotional Engagement in Moral Judgment " by
Joshua D. Gree et al.:"The long-standing rationalist tradition in moral psychology emphasizes the role of reason in moral judgment. A more recent trend places increased emphasis on emotion. Although both reason and emotion are likely to play important roles in moral judgment, relatively little is known about their neural correlates, the nature of their interaction, and the factors that modulate their respective behavioral influences in the context of moral judgment. In two functional magnetic resonance imaging (fMRI) studies using moral dilemmas as probes, we apply the methods of cognitive neuroscience to the study of moral judgment. We argue that moral dilemmas vary systematically in the extent to which they engage emotional processing and that these variations in emotional engagement influence moral judgment. These results may shed light on some puzzling patterns in moral judgment observed by contemporary philosophers."

I have presented this only as an example of what is currently going on in neurophysiology regarding ethical decision-making. I pose these questions to ethicists or anyone making ethical/moral decisions (which virtually all of us do): What do you think about it? Do you feel uncomfortable about these scientists scrutinizing you? Do you think that the outcome of studies such as the one exampled here will be useful? Will it cause us to be more cautious regarding accepting ethical principles or the results of ethical decision-making? Will fMRIs be used, for example, to separate those ethicists who excessively use their emotions to form their conclusions? A lot of questions.. but I would be most interested in your answers. After all.. it is all about YOU and all of you. ..Maurice.

New Neurologic Study: What is its Medical and Ethical Significance?

Read this science article in today's issue of the New York Times. It describes a study published in the current February 2005 issue of the journal Neurology. The study involved testing for metabolic brain activity using MRI imaging on two men who had traumatic brain injury and were in a "minimally conscious state"(MCS)(1) and comparing the responses to various stimuli with normal men and women. What was found was that there was evidence, on exposure to a recording of a familiar voice speaking, of patterns of metabolic activity in the temporal lobes of the traumatized patients that was similar to those of the normal subjects. By the anatomical location, the study suggested that there was active processing of language there possibly similar in some respects to normals. It is not clear what this all means but the New York Times article provides quotes from specialists who wonder if patients in MCS might be able to hear those who speak to them and may have some understanding though they may not be able to express what they hear. Also the experts wonder if this kind of MRI study technique may lead to more definitive diagnosis of the degree of neurologic impairment present beyond simple observation of behavior. The New York Times article relates the comments of the experts: " But they said the study did open a window on a world that has been neglected by medical inquiry. 'This is an extremely important work, for that reason alone,' said Dr. James Bernat, a professor of neurology at Dartmouth.

Dr. Bernat said findings from studies like these would be relevant to cases like that of Terri Schiavo, a Florida woman with brain damage who has been kept alive for years against her husband's wishes. In that case, which drew the attention of Gov. Jeb Bush and the Legislature, relatives of Ms. Schiavo disagreed about her condition, and a brain-imaging test - once it has been standardized - could help determine whether brain damage has extinguished awareness."

Unfortunately, it is not clear by the current research study whether the activity seen on MRI does tell, if any, how much and what quality of awareness is present.
In relation to the Schiavo case, a patient clinically disgnosed as in a permanent vegetative state (PVS)(2), the study did not involve PVS patients. Therefore what immediate consequences this report has on this case is unknown. However, since much of the significance of this study is unknown and there is no current treatment to reverse the anatomic and functional damage in PVS or MCS, it is my opinion that this will not change the ethical decision based on substituted judgment and supported by the courts in that case. ..Maurice.

1. Minimally Conscious States: Patients in minimally conscious states posses sleep-wake cycles and limited, inconsistent but definite awareness of self and environment (e.g., avoiding unpleasant stimuli, uttering intelligible sounds or reaching for objects in a way that adjusts for their size and location)

2.Vegetative States: The Multi-Society Task Force on Persistent Vegetative State (PVS), which included representatives from many of America’s most prestigious neurology associations, has defined the vegetative state as a condition of complete unawareness of self and environment, accompanied by sleep-wake cycles and either total or partial preservation of areas of the brain controlling automatic functions like heart activity and reflexes. PVS patients may cry or smile but these actions are reflexive and do not reflect true awareness.

My Blastocyst Poem

I think what is ignored in all the discussion about personhood for a blastocyst is the need for the proper culture media to grow and develop to make use of that alleged personhood. Well, I thought I might express it in a simple little poem--which I wrote.

“Home Grown”

by Maurice Bernstein, M.D.


I wish
that blastocyst
in the Petri dish
was my son or daughter.

I know
that blastocyst
can’t grow
without a home called mother.

..Maurice.

Blog Chatter: Lost Frozen Embryo

Gosh! I am impressed how the lost frozen embryo case in Illinois has stirred up such a host of opinions on the blogs. So many different takes. You can read them all if you have time on
Technorati.com.

Here is an analogy that I find very very interesting. It is written in Emily's Journal:

"A frozen embryo destroyed in a Chicago fertility clinic was a human being whose parents are entitled to file a wrongful-death lawsuit, a Cook County judge ruled Friday.'.........I stole this quote from a friend's journal, who got it from the Chicago Sun Times.
WOW.
The parallels between abortion issue and the slave issue of so long ago are just too close. Lets see. First, the argument is/was, 'Are they people?'....some have admitted 'Yes, but does that matter?'. Indeed, two arguments very strong in the slavery times. Now, here is where the parallels are even more close. In Congress so long ago, the Southern states said, 'our slaves should count in the population counts.' The Northern states said, 'But you do not treat them like people when you don't want to'. So, we see a little hypocracy....only people when it is convenient for them to be so. FINALLY, the three fifths compromise was reached. 'A slave would be counted as three fifths a person'.....often treated like less than human.
SO IT IS ONLY A HUMAN IN A CASE WHERE IT IS WANTED? "

Well.. what can anyone say to that? If a blastocyst is WANTED by society to be a living person than it IS a living person. If there is no science to support that it is a living person or not then it is NOT a living person. Gosh! How simple. Thanks Emily for the concept. ..Maurice.

More about Lost Frozen Embryos

Linda MacDonald Glenn, LLM writing in the November 2004 issue of
Virtual Mentor created a scenario, based on a real case, that is strikingly similar to the case from Illinois presented in my last posting. Go to the link above to read the entire article. However, she writes:

This scenario is based in part on a case brought in Rhode Island in 1995. A Superior Court issued a decision this past summer [2004] that frozen embryos were not "persons" within the meaning of the wrongful death statute and therefore could not be considered "victims" or "potential children." The court did not permit the plaintiffs to seek compensation for negligent infliction of emotional distress because the plaintiffs (1) did not witness the actual loss or destruction of the embryos, and (2) they did not suffer any physical manifestation of the emotional distress.

The Court, however, did hold that the frozen embryos were a form of "irreplaceable" property and allowed the plaintiffs to proceed with a claim for loss of "unique property." Despite the "informed consent" document [which included the disclaimer that "a laboratory accident in the Clinic may result in the loss or damage to one or more of said frozen embryos." ], the Court found that there remained a question of fact as to whether or not the plaintiffs were truly informed, that is, whether they fully understood "the possible risk associated with the loss or destruction of their pre-embryos." This aspect of the case has been remanded to the trial court and parties for further discovery and is still pending.

I suspect the Illinois law (see my last post) which apparently is similar to that in some other states will be eventually found to be in error by higher courts. ..Maurice.

Frozen Embryo Destroyed: Wrongful Death or Breach of Contract?

The state of Illinois defines human life as beginning
at conception.

"Without in any way restricting the right of privacy of a
woman
or the right of a woman to an abortion under those decisions, the General
Assembly
of the State of Illinois do solemnly declare and find in reaffirmation of the
longstanding policy of this State, that the unborn child is a human being
from
the time of conception and is, therefore, a legal person for purposes of the
unborn child's right to life and is entitled to the right to life from
conception under
the laws and Constitution of this State. (720 ILCS 510/1) (from Ch. 38,
par. 81 21)"

In view of the law, this news item excerpted from the Chicago Sun Times is disconcerting and has significant implications.

February 5, 2005

BY STEVE PATTERSON AND ABDON M. PALLASCH Staff Reporters

A frozen embryo destroyed in a Chicago fertility clinic was a human being whose parents are entitled to file a wrongful-death lawsuit, a Cook County judge ruled Friday.

Attorneys on both sides of the abortion issue said it was the first such ruling they had heard of as the country debates whether stem cells derived from embryos can be used in research and medicine.

Alison Miller and Todd Parrish hoped to conceive a child with help from the Center for Human Reproduction, but the one fertilized egg the couple created was thrown out 'in error' by a clinic worker.

Friday, Judge Jeffrey Lawrence II said 'a pre-embryo is a 'human being' ... whether or not it is implanted in its mother's womb' and the couple is entitled to seek the same compensation awarded to other parents whose children are killed.

'Philosophers and theologians may debate,' he wrote, 'but there is no doubt in the mind of the Illinois Legislature when life begins. It begins at conception.'"

What do you think about this legal decision? Wouldn't it be considered more reasonable to consider the act of the clinic as a breach of contract or malpractice? ..Maurice.

Jokes, Issues and Actions

I just can't get away from jokes! In the previous postings, we have considered what might be the effects of jokes, enjoyable or upsetting. However,whatever else jokes do, jokes also often put into a concise yet amusing format important issues which are worthy of serious discussion and perhaps action.

Here is a medical joke or is it a auto-mechanic joke or is it requesting that we consider an ethical principle such as justice. Read the joke and then you frame it as you think about it. I got it from Aarons Jokes and it is simply called "Dr vs. Mechanic".

Morris was removing some engine valves from a car on the lift when he spotted the famous heart surgeon Dr.Michael DeBakey, who was standing off to the side, waiting for the service manager.

Morris, somewhat of a loud mouth, shouted across the garage, "Hey DeBakey...Is dat you? Come over here a minute."
The famous surgeon, a bit surprised, walked over to where Morris was working on a car. Morris in a loud voice, all could hear, said argumentatively, "So Mr. fancy doctor, look at this work. I also take valves out, grind 'em, put in new parts, and when I finish this baby will purr like a kitten.

So how come you get the big bucks, when you and me are doing basically the same work?"

DeBakey, very embarrassed, walked away, and said softly, to Morris, "Try doing your work with the engine running."

..Maurice.

Jokes About Ethics and Exposing Its Cracks

OK. This joke from the UK website awordinyoureye
is not about illness but about ethics. I can accept this without feeling upset.

Issy was the proud co-owner of the local dry cleaners. One day, during dinner, whilst he was finishing his chicken soup, his 9year old son Sam asked, "Dad, what’s ethics?"
Issy thought for a while, put down his spoon, looked at Sam and replied, "Okay, let's suppose someone comes into my shop and gives me his business suit to dry clean. Then suppose I find a £20 note in his trouser pocket?"
Sam looked expectantly at his father.
"So," Issy said, "to answer your question, Sam, do I tell my partner I found the money? That's ethics".

Do my visitors have any more jokes about ethics? Ethics deserves it! Remember, ethics should not necessarily be looked at as a perfect monolithic doctrine as some might think it is. Jokes about ethics might expose some of the cracks which would be therapeutic for this discipline. Right? ..Maurice.

Making Fun of Illness? Think Again

Yesterday, I ended my posting with "Do you think it’s ethical to make fun of an illness and thus the anonymous ill patient? Do you see any benefit for the ill patient to hear the joke? Do you think that joking about illness is the human way of dealing with something perhaps over which we have no control.. and it's OK?" Dr. James Baker of Mental Notes thoughtfully found an answer to my questions after reading my posting. He wrote:

"When I read this, and ponder its ending query,
what comes to mind is this;
and this...
and this...
and this and this and this..
And I think to myself,
is not the answer to the query so darn obvious?"

Go to Dr. Baker's blog for the links to the blogs of this and this and this and this and this and this. I think you will see his obvious answer. ..Maurice.

The Ethics of Making Fun of an Illness

The DSM-IV classification of mental illness is, I suppose, an important tool that the psychiatrist uses as a help to make a diagnosis. I suspect that the pages of the document are well turned in every psychiatrist’s office. Well.. as a change of pace in contrast to the rather serious mood of my recent postings, I decided to offer another way of defining the various mental illnesses. I found the following humorous interpretation of psychiatric behaviors at Aha! Jokes

Psychiatrist phone
Hello. Welcome to the Psychiatric Hotline
If you are obsessive-compulsive, please press 1 repeatedly.
If you are co-dependent, please ask someone to press 2.
If you have multiple personalities, please press 3, 4, 5, and 6.
If you are paranoid-delusional, we know who you are and what you want. Just stay on the line so we can trace the call.
If you are schizophrenic, listen carefully and a little voice will tell you which number to press.
If you are manic-depressive, it doesn't matter which number you press. No one will answer.
If you are anxious, just start pressing numbers at random.
If you are phobic, don't press anything.
If you are anal retentive, please hold.

You may wonder what this all has to do with bioethics. There are many jokes around about illness. Do you think it’s ethical to make fun of an illness and thus the anonymous ill patient? Do you see any benefit for the ill patient to hear the joke?
Do you think that joking about illness is the human way of dealing with something perhaps over which we have no control.. and it's OK?

Oops! I’m getting serious again! ..Maurice.