Bioethics Discussion Blog





Sunday, August 24, 2014

Patient Modesty: Volume 69

As we continue on communicating about all the issues of patient modesty, I find that I may have been suggesting a wrong approach for my visitors to help resolve these issues: "speaking up"  to physicians and the medical system. "Up" suggests that the patient is somehow less significant and is inferior in the patient-doctor/medical system relationship.  And I don't believe this is true. Even though the patient may be the one who is ill, to meet the medical system's professional responsibilities, the system cannot act alone and must give equal attention to the patient as to their own personal and operational interests.

So, as we move forward on this blog thread, working out ways to communicate the needs of those who write here, let's change the suggestion to "speak to..." as part of a more level "speaking field" rather than the wrong view of "speaking up".

But as we begin Volume 69, let's remember that we have had 9 years and 68 volumes to "moan and groan" about the painful issues that are seen but now is the time to change the discourse to one of presenting a positive approach to attaining the needed relief by showing how the participants here plan and have already started to change the system to meet their goals.   

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

Sunday, August 03, 2014

Patient Modesty: Volume 68

As I have previously noted on this long running thread, there appears to be a metamorphosis from repeated descriptions in various details of personal physical modesty experiences and injuries to more generalized conversations with a philosophical, ethical or legal point of discussion. It is these latter postings which will be more directed toward discussing ways to actually change the medical system, either piecemeal or overall, to prevent or mitigate the possibilities that such personal experiences as noted in previous Volumes will happen.  It is my opinion now, whether or not the experiences written here are statistical outliers, the problems previously described on this thread and the potential consequences are of sufficient importance that changes in the medical system should be made. ..Maurice.

ADDENDUM 8-9-2014 
The following Comments by Doug Capra and followed by myself, I think are important and pertinent in setting the goals of this blog thread after 9 years of presentations here. 

At Saturday, August 09, 2014 12:39:00 PMBlogger Doug Capra said...
"P.S.- I just thought of an explanation why many of our writers here over the past 9 years have stopped writing or have stopped visiting here. Could it be that all they have seen here is personal experiences and argument with me but absolutely no constructive approaches or attempts to make the necessary changes. Can't you all do more? ..Maurice."

That's precisely it, Maurice. For me, most of this thread is same old, same old, same old. Occasionally, someone provides the URL for an interesting article. Sometimes there's an interesting insight. I know there are some on this thread who are really doing things. I applaud them. I check this thread every once in a while, but I just don't have time to go through the repetitions to get to the new.
I'm on two hospital boards, one a governing board, and I'm on a standing committee for another hospital. I'm trying to work on the inside as a patient advocate. Working with doctors and nurses and with the crisis issues most hospital are dealing with these days, has given me insight into what's discussed here. I've gained great respect for most doctors and nurses. I make no excuses for blatant medical abuse and modesty violations. But more people on this thread need to get into the trenches and work from there.
We talk about trust and good relationships with doctors, nurses, mid-levels, cna's and patient techs. If we really mean that, we need to understand that it's about the relationship, not about any one individual. Frankly, it's not all about the patient. It's about the relationship.
That doesn't mean the patient must tolerate abuse or blatant violations of modesty. But, like everything else in life, if you don't speak up and fight, you'll occasional be taken advantage of.
I hesitated to even post this -- because I know some here will want to debate with me. I don't have time for that. I'm too busy with other projects. But I will always work to defend a patient dignity. You can be sure of that.
At Saturday, August 09, 2014 1:48:00 PMBlogger Maurice Bernstein, M.D.said...
And following up with Doug Capra's "we need to understand that it's about the relationship, not about any one individual. Frankly, it's not all about the patient. It's about the relationship", how can the relationship be improved from both sides, the patient and the medical system and its providers? Education. Education to and for both sides which is still missing. What education?

The System needs to be educated about all of these concerns based on experiences which have been written here over the years and what have been the limitations both practical and psychologic limiting communication and to what degree the System's responses have been inappropriate and inadequate (or even surprisingly the opposite).

The patients, on the other hand, need to be educated by the System as to the current realities, practicalities and limitations of the System. (One reality is the unprofessional or "criminal" physician that can "pop up".) But both patients and the System need to be aware of the facts in order for the trust on both sides be strengthened and maintained.

With the education to both sides, then there can be a real chance for some creative cooperation to mitigate or even fully resolve the issues and problems related to each of the parties.

That is why, the next step here is to formulate ways to educate the System from the individual healthcare provider to the institutions. And, hopefully, with the help of Doug in his institutional relationship and position and mine in medical education can, in our ways, encourage the System to provide better education about their "current realities, practicalities and limitations" of the System.

You know, knowledge can be potentially therapeutic, as with all "therapy" if properly applied. ..Maurice.


Graphic: "Changing Course" (my title) From Google Images

Monday, July 14, 2014

Patient Modesty: Volume 67

 So with Volume 66 reaching some 170 postings, we should move on to this Volume 67.  What is special on starting this new Volume is the fact that Artiger  joined us in Volume 66.  Artiger is a male physician (surgeon) verified by the Medscape medical website, where we both participate, who has provided us  with the long-needed professional input and education from the outside of this blog.  It appears that those writing to this thread have found his comments of interest and has accepted his presence here.  I have no idea how long Artiger will stick around but as long as he decides to do so, I will find him most welcome as a significant contributor to the ongoing discussion.  Here is Artiger's last posting from Volume 66. ..Maurice.

Misty, participating in this blog simply reinforced my current practice. I work on the assumption that everyone cares about modesty. If you'll go back to my original comments (posted by Maurice on June 26 at 7:30am), you'll see what I am thinking about during an examination or procedure. When discussing breast incisions with women, I tell them about where the scar will be, and my method of closure to achieve the best possible cosmetic outcome. Many of them tell me that they don't care what it looks like, and I respond by telling them that I care what it looks like.

I certainly understand if a female patient wants to drive another 100 miles or more to see a female surgeon. Like I said, I've got plenty more here that come to see me because of the service and courtesy I provide, not to mention how quickly I get them in to see me or get their procedure scheduled. Some people care more about that than gender. As an example I may have already mentioned, in an area we used to live, my wife drove 100 miles (past 2 female OB/gyn's) to see my best friend from medical school. Why? Because he gave her the best in care and service. I didn't have to convince her, seeing him was her idea. Never bothered either of us in the slightest, even when we would go visit them socially or take trips with them.

Don, yes, discussing these issues and concerns are about half of the office visit. Although we don't shave (we use clippers) we don't remove any more hair than necessary, just enough to allow for a clear field for the proposed incision. As for catheters, that is always discussed ahead of time as well. Catheters are useful but they are not without their risks, and they are not to be taken lightly.

No, the referring providers usually don't cover these things (they really wouldn't have a clue where to begin, I'll tell you candidly), as it's not their place to do so. That is what the office visit with me is for. If they could discuss all these things adequately then they could just call and schedule the procedure. I have never felt comfortable doing it that way, but there are a lot of places where you can get a colonoscopy without ever meeting the person who will do it. That's another part of my office visit that I feel is important...I want the patient to know me, who I am, what I look like, have all of their questions answered, and be comfortable with me as their surgeon.


Thom, Robert A.: Paré. Photograph. Britannica Online for Kids. Web. 14 July 2014.  
Ambroise Paré was a French army surgeon in the 1500s who invented compassionate ways to handle wounds and hemorrhages. The painting was done by Robert A. Thom in about 1954.

Tuesday, June 17, 2014

"P in a Pod":(Physician Owned Distributorship): Physicians as Investors and Distributors in the Gadget Placed in Your Spine

If you have chronic back pain and your doctor refers you to an orthopedic surgeon who tells you that he or she can relieve the pain by inserting an appliance in your spine, there is a worry that the surgeon may be offering the surgery mainly for the surgeon's financial interest in that very appliance. 

What is "Physician Owned Distributorship" (POD) and what is its significance to medical practice and the ethical and lawful behavior of the profession?  To get some insight into the POD and its current status, what follows is an explanation as copied from an investigation published by Radio Station KPCC as part of the station's full presentation of the issue.

What is a POD?
A POD is a Physician Owned Distributorship. Under this business model, a doctor is an investor in, and distributor of, the devices or hardware he may put into his patients. Multiple doctors can have a financial interest in one POD.
Is that business arrangement legal?
In and of itself the arrangement is legal, but the Department of Health and Human Services’ Office of Inspector General has concluded that PODs are “inherently suspect under the anti-kickback statute.” It issued fraud alerts about PODs in 2006 and in 2013.
Can I find out if my surgeon is involved in a POD?
Currently, your physician is under no legal obligation to disclose that information. The Sunshine Act, a provision of the Affordable Care Act, does require that each year, certain medical device makers and distributors disclose to the Centers for Medicare and Medicaid Services ownership or investment interests held by physicians or their immediate family members. The law requires the Centers to post online the first batch of information it received by September.
Does the ‘Sunshine Act’ require my doctor to inform me that he is involved in a POD?
No. You will have to ask on your own, or search that Centers for Medicare and Medicaid Services website when it is published. The Centers say the site “will be organized and designed to increase access to and knowledge about these relationships and to provide information to enable consumers to make informed decisions.”

Yes, there are laws preventing physicians from referring their patients to facilities in which they own and invest for laboratory services or procedures. The Federal regulations called Stark (after Pete Stark, congressman who was its primary sponsor) can be summarized as follows: A physician may not make a referral to an entity for the provision of a designated health service (“DHS”) for which Medicare payment may be made (and the entity may not present a claim for services provided as a result of such a referral) if the physician or an immediate family member has a financial relationship with the entity unless either the referral or the financial relationship is “excepted” from the statute’s coverage.  To read more about Stark regulations, here is the link to a paper by Homchick and Looney which explains its current status.

Please read the excellent KPCC article about this unsettled and unsettling issue and then return back here and write what you would you think about Physician Owned Distributorship and its implications regarding providing the least expensive but the best in medical care.  Balancing the right of private investment by any person versus the need for unbiased decision-making and care by your physician, how do you size up POD, ethically, legally and if you were the patient with that back pain and were told "I have just the operation that can fix it"? ..Maurice.

Graphic: From Google Images and modified by me with ArtRage and Picasa3.

Thursday, June 12, 2014

Can a Tree Experience Hurt?: If It Can, Do Ethics and Law Apply?

I was visiting a well known botanic garden in Southern California today, taking pictures of all the beautiful flowers when I saw this tree shown above in the pictures I took.  Honestly, what I saw, a tree apparently being pulled by straps out of its normal posture, pained me as I projected myself as if I were that tree.  Of course, I am not that tree but then this got me thinking about the bioethics of what had been done to the tree.  (First of all, I want to admit that I have no idea how long the straps were in place or for what future duration and what the gardeners were intending to accomplish with the straps since I haven't talked to the garden management. Finally, I am not sure that trees experience "hurt".)

Bioethics is not just about the ethics of humans and animals, healthy or with disease but it is also about ethics dealing with the plant kingdom. A current example of ethical concern is genetically modifying plants, including those we eat. And the question that came to me was whether what was done to the tree was unethical, that is, failing to meet the ethical standard for the principles of beneficence (to do good) and non-malificence (avoiding causing harm). But, though what I saw "hurt" me, the questions were whether the tree, a living creature of the plant kingdom was, in its own way, appreciating some "hurt" and with some ethical significance. Was the tree recognizing discomfort? Was the purpose of the straps to benefit the tree (which might be considered ethical) or to re-position the tree for its appearance to the benefit of the viewing public?  The latter might be considered unethical if the tree experienced "hurt".

To try to answer my concerns, as I often do, I go to Wikipedia to get a bit of help.  I found the article on Plant Rights which I have, as is permitted, reproduced below.  I would be most interested in the viewpoints of my visitors and perhaps they have found additional information regarding the science answering the question as to whether trees can "feel" or "express distress" to physical discomfort.  If they can, should they have themselves certain "rights" both legally and ethically? The question is either fascinating or just "dumb".  Tell me what you think...Maurice.

Plant rights
From Wikipedia, the free encyclopedia
Not to be confused with Plant breeders' rights.
Plant rights are rights to which plants may be entitled. Such issues are often raised in connection with discussions abouthuman rights, animal rights, biocentrism, or sentiocentrism.
On the question of whether animal rights can be extended to plants, philosopher Tom Regan argues that animals acquire rights due to being aware, what he calls "subjects-of-a-life". He argues that this does not apply to plants, and that even if plants did have rights, abstaining from eating meat would still be moral due to the use of plants to rear animals.[1]According to philosopher Michael Marder, the idea that plants should have rights derives from "plant subjectivity", which is distinct from human personhood.[2][3][4][5][6] Philosopher Paul Taylor holds that all life has inherent worth and argues for respect for plants, but does not assign them rights.[7] Christopher D. Stone, the son of investigative journalist I. F. Stone, proposed in a 1972 paper titled "Should Trees Have Standing?" that if corporations are assigned rights, so should natural objects such as trees.[8][9]
Whilst not appealing directly to "rights", Matthew Hall has argued that plants should be included within the realm of human moral consideration. His "Plants as Persons: A Philosophical Botany" discusses the moral background of plants in western philosophy and contrasts this with other traditions, including indigenous cultures, which recognise plants as persons—active, intelligent beings that are appropriate recipients of respect and care.[10] Hall backs up his call for the ethical consideration of plants with arguments based on plant neurobiology, which says that plants are autonomous, perceptive organisms capable of complex, adaptive behaviours, including the recognition of self/non-self.
Scientific arguments
In the study of plant physiology, plants are understood to have mechanisms by which they recognize environmental changes. This definition of plant perception differs from the notion that plants are capable of feeling emotions, an idea also called plant perception. The latter concept, along with plant intelligence, can be traced to 1848, when Gustav Theodor Fechner, a German experimental psychologist, suggested that plants are capable of emotions, and that one could promote healthy growth with talk, attention, and affection.[11] The Swiss Federal Ethics Committee on Non-Human Biotechnology analyzed scientific data on plants, and concluded in 2009 that plants are entitled to a certain amount of "dignity", but "dignity of plants is not an absolute value."[12]
Legal arguments
When challenged by People for the Ethical Treatment of Animals to become vegetarian, Timothy McVeigh argued that "plants are alive too, they react to stimuli (including pain); have circulation systems, etc".[13][14] The Animal Liberation Front argues that there is no evidence that plants can experience pain, and that to the extent they respond to stimuli, it is like a device such as a thermostat responding to sensors.[15]
In his dissent to the 1972 Sierra Club v. Morton decision by the United States Supreme Court, Justice William O. Douglas wrote about whether plants might have legal standing:
Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes... So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life...The voice of the inanimate object, therefore, should not be stilled.
Samuel Butler's Erewhon contains a chapter, "The Views of an Erewhonian Philosopher Concerning the Rights of Vegetables".[16]
The Swiss Constitution contains a provision requiring "account to be taken of the dignity of creation when handling animals, plants and other organisms", and the Swiss government has conducted ethical studies pertaining to how the dignity of plants is to be protected.[17]The single-issue Party for Plants entered candidates in the 2010 parliamentary election in the Netherlands.[18] Such concerns have been criticized as evidence that modern culture is "causing us to lose the ability to think critically and distinguish serious from frivolous ethical concerns".[19]
In 2012 a river in New Zealand was legally declared a person with standing (via guardians) to bring legal actions to protect its interests.[20]
1.      Regan, Tom (2003). Animal rights, human wrongs: an introduction to moral philosophy. Rowman & Littlefield. p. 101. ISBN 0-7425-3354-9.
3.     Marder, Michael (2013). Plant-Thinking: A Philosophy of Vegetal Life. Columbia University Press. ISBN 978-0-231-16125-1
4.      Marder, Michael (April 28, 2012). "If Peas Can Talk, Should We Eat Them?"The New York Times.
5.      Marder, Michael (May 8, 2012). "Is Plant Liberation on the Menu?"The New York Times.
7.      Vesilind, P. Aarne; Gunn, Alastair S. (1998). Engineering, ethics, and the environment. Cambridge University Press. p. 94. ISBN 0-521-58918-5.
8.      Stone, Christopher D. (2010). Should Trees Have Standing? Law, Morality, and the Environment (Third ed.). Oxford University Press. ISBN 0-19-973607-3.
9.      Stone, Christopher D. (1972). "Should Trees Have Standing--Toward Legal Rights for Natural Objects". Southern California Law Review 45: 450–87.
10.   Hall, Matthew (2011). Plants as Persons: A Philosophical Botany. SUNY Press.ISBN 1-4384-3428-6.
11.   Michael Heidelberger Nature from within: Gustav Theodor Fechner and his psychophysical worldview 2004, p. 54

Graphics: Photographs taken by me  June 12 2014

Monday, June 09, 2014

Patient Modesty: Volume 66

 The inattention to patient physical modesty in the medical system is just one part of a whole system-wide issue of inattention to the patient.  A good example of such inattention in another area is that of the behavior of the medical system to a physical injury is told by a physician who was injured and describes her experience in a hospital emergency room and later on the wards. While this physician's story is not strictly about medical staff ignoring her modesty, I think it does show major causes for inattention in many areas of medical practice: putting more emphasis to attend to making a diagnosis or just be seen as "doing something" for the patient but, because of workload, available time,need to rush ahead, follow protocol and move on, that attention to the patient as a unique individual with their individual needs and requests is simply ignored.  I think that unless the medical system expands its population of available healthcare providers and these providers are trained to think about the patient as an individual person as themselves, the sad experiences described over the years on this blog thread and the "hurt" (not simply the trauma) that this doctor felt as a patient will just continue onward. ..Maurice.

ADDENDUM:  I changed the graphic today for this Volume in order to emphasize what should be the
theme for the Patient Modesty thread: PATIENT  CENTERED CARE.


Graphic: From Policy and Medicine

Sunday, June 08, 2014

"This is Mine!": Property and Ethical Rights of Your Body by Yourself and Others

Jean-Jacques Rousseau, Discourse on Inequality, 1754  wrote "The first man who, having fenced in a piece of land, said 'This is mine,' and found people naïve enough to believe him, that man was the true founder of civil society."  Of course, property rights has continued through the ages and their defense has let to law suits as well as wars.  The question in recent years as applied to the human body is how property rights are applied to the body or tissues or cells or the genetic DNA of the cells themselves.  I found a very interesting discussion of this issue titled "Whose Body Is It Anyway?  Human Cells and the Strange Effects of Property & Intellectual Property Law" written by Robin Feldman, Professor of Law and Director, Law & Bioscience Project, UC Hastings College of the Law and which can be accessed through this link.

She begins her analysis with the following:

 "There are many aspects of our lives over which we can exercise what can be  called ownership, control, or dominion. However one conceptualizes ownership, it is  clear that people can hold such rights in many things, ranging from more concrete items,  such as automobiles, jewelry, or a plot of land, to more abstract concepts such as our  labor, our writings, our innovations, and even our commercial image.

Whatever else I might own in this world, however, it would seem intuitively obvious that I own the cells of my body. Where else could the notion ofownership begin, other than with the components of the tangible corpus that all would recognize as 'me'?

The law, however, does not view the issue so neatly and clearly. Through the rambling pathways of property and intellectual property law, we are fast approaching the point at which just about anyone can have property rights in your cells, except you. In addition, with some alteration, anyone can have intellectual property rights in innovations related to the information contained therein, but you do not.

I should be clear at the outset that I am talking about property and intellectual
property rights to cells when they are no longer in your body. The sanctity of control over one’s body remains reasonably intact, as long as the cells are attached to you. When cells are no longer attached, however, the legal landscape shifts, and the resulting tableau has a strong effect on the choices one can make with those cells that do remain in the body.

As so often happens in law, we have reached this point, not by design, but by the piecemeal development of disparate notions. Various doctrinal strands have emerged in isolation of each other, each appearing to solve a particular problem in its own domain. When gathered together, however, the doctrines form a strange and disconcerting picture."

As one can see from her discussion, the answer to my question has been legally muddled over the years.  My question to my visitors here is how do you look at the property rights of your own bodies? Should you have potential control of any cells or tissues removed from your body both when you are alive and even after death?  If the cells or tissues are used by others which end up in financial gain, should you or your  beneficiary also have access to that gain? How far should your exclaiming  "This is Mine" apply? ..Maurice.

Graphic: Photograph taken by me June 7 2014 and modified using Picasa3.

Monday, June 02, 2014

The Ethics of Delay: A Good or a Bad?

The following article I wrote for is reproduced here with permission.



by Maurice Bernstein, M.D.
Delay, something late or postponed, can be looked upon as either ethically good or ethically bad. The difference depends on the basis for the delay, whether it was intentional and, if so, what purpose and what was the outcome. Unintentional delays, may be either a good or a bad depending on its origin and the outcome. Intentional delays may be the result of following the Precautionary Principle. The Principle emphasizes the need to be aware of the consequences of an action or inaction.  If the action is necessary to prevent known harm then the action should be carried out.  On the other hand, if there is no definitive evidence that the action will prevent harm but is likely to produce it or increase its risk, then following the Precautionary Principle, one should avoid or delay the act.
Delay and its ethical consequences is a common experience in medical practice.  It may be the patient who delays a visit to a doctor for a symptom recognized by the patient as possibly representing some serious disorder but the visit is delayed by the patient’s fears of what the doctor may find and so the visit may be postponed to await a spontaneous resolution of the symptom. Following the Precautionary Principle, the patient, considering the symptom as serious should not delay but seek medical diagnosis.  On the other hand, when the patient’s symptom is evaluated by the physician and based on the physician’s experience and the literature, there is reason to consider the symptom trivial and that a CAT scan is unnecessary at this point, delaying the expense, radiation and the ever-present possibility of making an erroneous diagnosis, the physician may settle on delaying further workup and proceeding instead with further observation of the symptom and with attention to the patient’s comfort as necessary. By this approach the delay may be appropriate and ethical.
Interestingly, there have been proposals by professional organizations dealing with guidelines for medical practice that based on studies and following the Precautionary Principle, recommendations including delays or abandoning certain procedures like PSA testing for prostatic cancer, mammography, colonoscopy and screening chest x-rays for lung cancer.
Unintentional delays in diagnosis and treatment may be related to the physician’s inability to readily access appropriately needed diagnostic and consultative resources.  Nevertheless, when delay is not based simply on the Precautionary Principle, it is the professional responsibility of the physician to make an effort to resolve the delay and provide the patient the needed professional services.
In medical care, delay is unethical if it is based not on precautionary concerns or is unintentional but based on self-interest of physician or, indeed, the medical system itself. It is unethical because the goal of medical practice is to provide beneficence, primarily attempting to “do good” for the patient and whatever are the personal benefit for the physician or system is secondary.  If the delay shows no concerns by the medical profession  for the patient and the patient’s symptoms or illness then the delay is a “bad” and is unethical.
Although, all the facts are as yet unknown and yet to be further discovered, there is current public concern in the apparently profound delays in the scheduling, evaluating, diagnosing and treating of war veterans by the United States Veterans Administration hospitals and clinics.  If not accidental but designed specifically to meet the self-interests of the Veterans Administration’s staff and officers, such delays, in terms of the principles of beneficence, non-maleficence and justice would make such behavior considered unethical.
As noted above, delay, itself, in the performance of a professional duty, may be ethically either “a good” or “a bad” and the ethics evaluation must take into consideration all the facts including the rationale presented explaining the delay. However, particularly in medical practice, dealing with humans who may need prompt medical attention to preserve life and provide comfort, delay should never be hidden but always explained and promptly attended to resolve.

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.