Rejection of Life-Sustaining Emergency Treatment in a Hospital Emergency Room

	This thread is about the patient telling the Emergency Room doctor: "I refuse to have any emergency life-saving treatment" and then what? Let's start out with a Case reviewed by the Massachusetts Supreme Judicial Court and with the conclusion of that Court. Shine v. Vega, 429 Mass. 456, 709 N.E.2d 58 (Mass. 1999) Civil action commenced in the Superior Court Department on March 19, 1993.
	The case was tried before Margaret R. Hinkle, J.
	The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
	In this wrongful death case, we must resolve the conflict between the right of a competent adult to refuse medical treatment and the interest of a physician in preserving life without fear of liability. In 1990, an invasive procedure, intubation, was forcibly performed on Catherine Shine (Catherine), a life-long asthmatic in the midst of a severe asthma attack. Dr. Jose Vega, an emergency physician at Massachusetts General Hospital (MGH), initiated the intubation without Catherine's consent and over her repeated and vigorous objections. In 1993, Dr. Ian Shine, Catherine's father and the administrator of her estate, brought a multi-count complaint against Dr. Vega and MGH seeking damages for tortuous conduct and the wrongful death of his daughter. He alleged that Catherine was traumatized by this painful experience, and that it led to her death two years later. On that occasion, Catherine again suffered a severe asthma attack but refused to go to a hospital because, it was claimed, she had developed an intense fear of hospitals. Her father alleged that Catherine's delay in seeking medical help was a substantial factor in causing her death.
	At trial the defendants took the position that, confronted with a life-threatening emergency, Dr. Vega was not required to obtain consent for treatment from either Catherine or her family. A Judge in the Superior Court agreed, and charged the jury that no patient has a right to refuse medical treatment in a life-threatening situation. She also instructed that in an emergency the physician need not obtain the consent of the patient or her family to proceed with invasive treatment. A jury returned verdicts for the defendants on all counts. Dr. Shine appeals from the judgment entered on the jury verdicts, and from the denial of his motion for judgment notwithstanding the verdict or a new trial. He contends that the trial Judge incorrectly instructed the jury that (1) a patient's right to refuse medical treatment does not apply in an "emergency" medical situation; (2) it is not a battery for a physician to treat a patient without obtaining consent if the treatment is necessary to prevent death or serious bodily harm; and (3) it is not false imprisonment forcibly to restrain a patient in a life-threatening situation. He also challenges the Judge's ruling excluding certain notes Catherine made concerning her treatment at MGH. We transferred the case here on our own motion. We conclude that the instructions were erroneous, and that the errors were prejudicial. We vacate the judgment and remand the case to the Superior Court for a new trial. The Massachusetts Supreme Court referred the case back in order for the jurors to make a decision as to whether Catherine had the capacity to make her own decision regarding how she wanted to be treated by the emergency room physician. If she had capacity then her decision would have been final and any treatment beyond her decision would have been illegal even if the physician considered the incubation a life-saving procedure.  The statement given to the jurors by the judge in the Superior Court was in error since any patient who has capacity to make their own medical decisions can make binding decision which must be followed regardless whether the treatment is emergent and life-threatening. The "emergency exception", the right of a physician to provide life-saving emergency treatment to a patient without specific consent by the patient and without moral or legal penalty,  has the limitation that the patient's current state prevents the patient from making an informed decision or that there is no clear evidence from some advance directive or true substituted judgment by a surrogate that that treatment would be unwanted by the patient. A case discussion and commentary on this issue was written by Dr. Stephanie Cooper in the June 2010 Virtual Mentor.  She writes " Decision-making capacity [DMC]  can be altered or obscured by pathophysiological conditions, such as acute physical or mental illness, traumatic brain injury, severe pain, pain medications, substance use (withdrawal or overdose), and emotional factors, including stress, denial, and suicidal ideation. Certainly, a comatose patient, a severely demented patient, or an intubated, head-injured patient lacks decisional capacity. Under the “emergency exception,” immediate intervention can proceed without informed consent in order to prevent death or serious disability. The emergency exception is based on the presumption that a reasonable person would consent to treatment to preserve life and health if he or she were able. Conversely, the patient who is alert, communicative, and comprehends the situation has the ability to direct his or her health care. The grey areas lie in between. In actuality, decision-making capacity is more often questioned when the patient refuses recommended medical treatment. While the factors mentioned above may limit the patient’s decisional capacity, it is essential that the emergency physician not equate presence of an impairing condition with the lack of decision-making capacity Similarly, disagreement with the physician’s recommendation is not grounds for determining that the patient lacks decision-making capacity. In the emergency setting, there are limitations on determining DMC. When faced with medical emergencies requiring urgent action and decision making, the emergency practitioner does not have the luxury of time to consult psychiatric professionals, an ethics committee, or hospital legal counsel. Truly emergent situations are by definition time-limited, and the practitioner must assess DMC as best as he or she can. The culture of emergency medicine is to preserve life at all costs. In the immediacy of illness and injury, survivability and outcome cannot be predicted. Consequently, emergency physicians typically 'on the side of life'" But to do so poses legal risks. I recently posed a series of questions on this matter to a physician who teaches emergency medicine and has experience in that specialty.  Here are my questions and the physician's responses: Is there time in an ER situation to make that determination of capacity? It is a difficult task. Does a surrogate who can make substituted judgment have the same decision-making power in the ER? Only if they have an advance directive or have the legal power through a surrogate decision making law. Do physicians working in the ER agree with that respect of the patient's decision or do they have to be "educated" if they refuse? Lots of ED docs think they can “err on the side of life” and let the ICU docs sort out the decisions. Lots of education needed. Enough said.  I encourage my visitors to express their understanding of what is the function of a hospital emergency room and what is expected by the patients and what  my visitor  might expect in terms of  emergency life preserving treatment .  ..Maurice. Graphic: From Google Images and modified by me with Picasa3.

Instead of Handshake Hazard: Namaste, Salaam Gestures or Bumping Elbows?

Of course, we all teach our medical students from year 1 that the handshake with the patient is a  classic professional act to develop and preserve the doctor-patient relationship. The basis for teaching our students is that an initial handshake is, as I wrote in the thread "A Doctor's Touch" in July 2008, "the handshake, provides the first connection with the patient. It can be represented as the marking of a beginning doctor-patient relationship which is hopefully to continue to the benefit of the patient. The quality of the handshake tells each party, at the onset, something about the other." But these days with greater spread of infection attributed by studies in part related to hand to hand contact, despite emphasis to attend to hand washing, there is an argument in favor that the professional handshake with the patient is now anachronistic and should be  eliminated.  But what, less infectious but yet courteous behavior is there  to replace the handshake?

A recent article on this subject in a May 15 2014 issue of the online Journal of the American Medical Association discusses the hand shake which " has evolved over centuries into its currently profound cultural role. Artifacts from ancient Greece suggest that the handshake began as a general gesture of peace, revealing one’s open palm as a symbol of honesty and trust. The custom and technique of this open-palm gesture subsequently evolved into the modern form of the handshake, now representing an international symbol of greeting/departure, reconciliation, respect, friendship, peace, congratulations, good sportsmanship, or formal agreement."

So what might be an alternative, infection-free, method for expressing a physician's greeting to and acknowledgment of the patient? This excerpt from the JAMA article provides some alternatives: " Infection-conscious alternatives to the handshake may be found in a variety of secular and religiously based gestures from around the world. Some well-established gestures include the familiar hand wave (using an open palm, and practiced widely as an informal greeting/departure gesture) and placement of the right palm over the heart (as practiced in the United States while facing the American flag). Practiced predominantly in the Far East, the bow symbolizes reverence and respect but can also have a variety of secular/religious meanings and may signify greeting/ departure, humility, obedience, submission, apology, or congratulations. The Namaste gesture, practiced for centuries throughout South Asia, has become increasingly prevalent in yoga practice throughout the world. By placing the hands, palms together, against the face or chest, and tilting the head forward, the gesture symbolizes respect and may carry religious significance among Hindus and Buddhists. In Thailand, the wai gesture functions similarly. The salaam (peace) gesture—wherein the right palm is placed over the heart, sometimes with subtle bowing—has been practiced among some Muslims and generally represents a symbol of greeting/departure and respect."

But will these substitutes including even the doctor wearing surgical gloves or any of  the popular Western actions such bumping elbows (safe?), or giving a thumbs up sign in any way substitute for a warm handshake?  I think the best physical connection is made by the extended arm of the physician with the open palm awaiting the similar action by the patient and with, as we teach our medical students, washing hands properly with soap and water just before making contact with the patient and then again on moving on to the next patient.  What do you think about the current value of the handshake between doctor and patient? Should it be easily abandoned in the name of safety?...Maurice.

Graphic: From Google Images

Drug Screening of Physicians: Violations of Personal Privacy vs "Peace of Mind"

Yesterday, I received the following e-mail from Ed:

"Dr Bernstein, as a retired USAF pilot and current airline pilot who has been subjected to random drug screening for my entire professional career, why aren't medical providers who have easy access to legal drugs as well as the same to access to illegal drugs as the rest of society, subject to random drug screening? The public literally places their lives in our respective hands and it seems both professions have a ethical, moral, and legal obligation to ensure reasonable efforts are made to identify those who abuse drugs. I think this would make a great topic for your blog."

It was.. and here it is.

I wrote Ed back "Good topic for consideration. The question is not the moral, ethical or legal aspects of testing but in the physician population alone, what are the studies and statistics which confirm that such testing would make a significant difference in overall patient safety vs the validity and the economics of a test result?  An airline pilot, in daily work, may have hundreds of lives beyond his/her own at immediate highly significant risk whereas a physician's risk pool is limited to his one patient with less significant risk. ..Maurice. "

We must find the statistics to compare physicians to airline pilots with regard to drug intoxication, frequency of incidence and outcome in terms of risks to lives and health in their daily professions. In reality, the testing of physicians for drug use is already occurring in U.S. hospitals both on staff admission and also randomly. If the statistics show that drug use by physicians is minute and the consequences of such addiction is also minute, then the questions are whether such testing is simply a way to provide society and the patients some "peace of mind" and whether that benefit is sufficient to ethically permit violation of a physician's personal privacy and its professional consequences  for that patient comfort.

If statistics will show that there is a difference between the risks to patients vs passengers, would you agree that there should be a difference between physicians and airline pilots in the way society handles the drug-use issue for safety and "peace of mind"?  ..Maurice.  

Graphic: From Google Images modified by me with ArtRage 3.