Bioethics Discussion Blog: Rejection of Life-Sustaining Emergency Treatment in a Hospital Emergency Room

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Monday, May 26, 2014

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.







10 Comments:

At Thursday, May 29, 2014 4:57:00 AM, Blogger T said...

Even when a surrogate HAS a signed healthcare power of attorney, ER doctors sometimes manage to avoid the 'problem' of having to listen to a surrogate by refusing to allow them back where the patient is, when the patient can't speak. Can't make decisions very well from the waiting room. Like the above case, abuse of power.
TAM

 
At Saturday, June 28, 2014 1:07:00 PM, Anonymous Anonymous said...

Consider this situation: a patient is taken to a psychiatric hospital and seen by a psychiatrist. The patient has aphobia that is severely affecting the patient's health and we'll being and potentially his life.

Upon discharge there is a 99.99% probability that the patient will fall back into the same rituals and be injured (again).

The patient had at one point hidden in a closet for 5 days without food and water... and similar situations. The psychiatrist knows that he can cure this phobia and allow the patient to resume a normal life.

The psychiatrist takes the patient to the parking lot and runs him over with a car. Tha patient is cured of his phobia immediately and has a completely normal mental status despite having fractured bones and internal injuries.

This is the accepted practice for the treatment and most patients suffer none to very little physical harm.

What if the patient refuses treatment and that the psychiatrist deems this phobia "life threatening."

What responsibility does the psychiatrist, hospital, etc. bear to the patient for the physical injuries? Where does "do no harm" come in?

Do not dwell on the silliness of the treatment (I can argue that chemotherapy is just as bad if not worse than getting hit by a car) or the vagueness of the "phobia." Look at the point that I am trying to illustrate.

I am sure that most people (including those in the medical field) would feel that the psychiatrist, hospital is at fault, should have respected the patient's wishes, should have (could have) apply an effective treatment differently.

Again, getting past the ridiculousness of the example or the fact that it could never happen, the opposite occurs hundreds of times a day.

 
At Saturday, June 28, 2014 1:55:00 PM, Blogger Maurice Bernstein, M.D. said...

For a conscious patient to demonstrate the capacity to make their own medical decision has nothing to do with what diagnosis is currently present. It could be cardiac or it could be psychologic or neurologic or whatever. What I am saying is whether the patient is mildly demented or not, the test is how the patient demonstrates, after education, how he or she understands the implications of their current emergent condition with regard to the patient's health and survival. This is found out by having the patient explain back what was learned the relationships. Next the patient demonstrates that he or she understands how the treatment will correct the emergent condition and can repeat back and show such understanding including regarding the risks. Finally, the patient should be able to express a conclusion and explain how the conclusion was reached. Whether the conclusion is acceptable or not to the medical staff has nothing to do with capacity, only the logic of how the conclusion is presented to the staff should determine capacity.
It all has to do with how the patient demonstrates understanding the facts and can express and explain whatever the conclusion the patient makes. Again, capacity for medical decision making is specific to that single and specific medical decision and is not to be determined by any incapacity in any other area of decision-making or personal management. ..Maurice.

 
At Sunday, June 29, 2014 3:52:00 PM, Anonymous Anonymous said...

Maurice,
There are numerous situations where the patient has capacity, but yet the physician does not listen to the patient's wishes (syncope). Although the physician is legally able to disregard the patient's wishes in these situations, I raise the question of "do no harm."

Is this a situation of the "laeesr of two evils?" I also question what responsibility that the physician has to the patient in the aftermath (PTSD).

In the event a patient lacks capacity or is in an emergency situation, does the physician save the life at any cost or act in the patient's best interest?

It seems that physicians (and all medical personnel) refuse to acknowledge that their actions cause mental injury for some patients.

The argument that I hear from the medical side is "I am a professional, I have seen all this before."

I am not a standardized patient. I have not exposed myself to strangers. Therefore that argument invalid.

Part of the problem is the disconnect that physicians are taught in school. This has a practical side to prevent burnout, allow the physician to make unbiased decisions, and not deal with patient death. In the process, patients are dehumanized, and dignity is overlooked.

If you were to take out any description of place, circumstances, intentions, outcomes, etc., and simply describe it from the perspective of the patient, I am sure that narrative will be almost identical to that of a victim of sexual assault.

Although there are no legal consequences for the ED physician, the perspective is the same from that of the patient or victim. This raises the question, are these the only way to examine a patient? If the answer is "yes," then what provisions should me made for the fallout.

I don't have the answers, but I do know that there is a flaw in the current system. I do believe that it is MY body, and "NO" means "NO."

--Banterings

 
At Sunday, June 29, 2014 4:31:00 PM, Blogger Maurice Bernstein, M.D. said...

Bamterings, I presume you wrote yesterday's comment. In any event, there are legal permissions in diagnosing and treating patients without decision-making capacity (particularly if unconscious) and have no family or other surrogates to make decisions under these conditions. The general decision for such patients is to do what is necessary to maintain life. The idea is that life supportive treatment, if still ongoing, can be discontinued later on the basis of what a now conscious patient with capacity states or if still incapacitated from a legal surrogate speaking for the patient. For those who have no decisional capacity and are "unbefriended" (no family or friends who know them), then in the United States decisions are made though mechanisms set up by the various states. In California, we can form "surrogate committees" to represent only the patient (and no other party) to speak for whatever would be in the "best interest" of and for the patient. The California court system becomes the last and rare resort.

With regard to patients who have full capacity to make their own decisions, there are legal consequences for violating the patient's request. It does, however, require that the request is made known to the attending medical staff. ..Maurice.

 
At Monday, June 30, 2014 1:31:00 PM, Anonymous Anonymous said...

Maurice,

Yes, I made the other comment. Apologies for not signing.

I think the question should be "why is the medical community so reluctant to acknowledge there is a problem.

Take the 2003 case of Brian Persaud in NYC. He was conscious and refusing a specific treatment, yet due to circumstances the physician was legally allowed to disregard his wishes.

Legally is one thing, but you must agree with me that the physician made the wrong decision. Can anyone honestly say that that was the only option for the physician?

Ethically, was a lifetime of PTSD the lesser of 2 evils here?

What bothers me most is the fact that the medical community continues to justify such actions. Proof of this is that nothing has changed in regards to ED protocalls. (I don't know what your views of this incident are.)

Philosophically, nobody can deny that my mind and body are MY property. When you lose this basic human right, we lose our humanity and this becomes the Soviet Union where the needs of the many are paramount and individual (human) rights are disregarded for the good of the group.

If you don't be we are headed in that direction, look at big brother NSA cell phone spying program....

--Banterings

 
At Monday, June 30, 2014 3:10:00 PM, Blogger Maurice Bernstein, M.D. said...

I would say that when the spokesperson for the New York Presbyterian Hospital said "We think the verdict speaks for itself", that statement is meaningless if considered in terms of ED protocols and physician behavior in the case of a patient who was not unconscious. The criteria for capacity for a patient to make their own decisions which cannot be ignored is not made later by a courtroom jury after the fact. It is only made at the time the patient is informed and is determined by step-wise analysis by a physician (as described in my posting 2 days ago). Also the status of capacity is time related since a patient who has capacity to make their own medical decision at one time and then becomes unable to meet the criteria one hour later still has met the criteria initially and that decision must be followed unless the circumstances has so changed that the original decision has become totally irrelevant to the current clinical state. ..Maurice.

 
At Monday, July 14, 2014 9:28:00 PM, Blogger M Banterings said...

Can you say "PATERNALISM?"

I do not know if the physician faced any professional sanctions, but he should have along with everyone else in the bay who witnessed the event.

I would argue that this case started a chain of events caused the American College of Surgeons to reevaluate the utility of the DRE which was reflected in the 8th Edition of ATLS. Unfortunately it stops short of acknowledging that events such as that cause long lasting mental trauma.

In also suspect that the political climate (9/11) may have contributed to the outcome. I can say for certain if this happened today (even in NYC), the outcome would be different.

Maurice, I think that you have also pointed out another issue: the disconnect between the medical (protocols) and the legal system. What recourse is there for review of protocalls?

 
At Monday, July 14, 2014 10:12:00 PM, Blogger Maurice Bernstein, M.D. said...

Banterings, it may be of interest to know that sometimes the lawyers and doctors can get together to solve conflicts. For example, a number of years ago the Los Angeles Medical Association and the Los Angeles Bar Association got together and worked out a protocol for hospitals to use to decide on termination of life support when a patient who has no friends and no family available and is unconscious with no chance of recovery of consciousness requires such a decision to be made. And that protocol has been used. ..Maurice.

 
At Tuesday, July 15, 2014 7:36:00 AM, Blogger M Banterings said...

It does happen, but that is the exception. It should be the rule. But that is a positive sign, it means that there is hope and we seem to be moving in the right direction.

 

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