REMINDER: I AM POSTING A NEW TOPIC ABOUT ONCE A WEEK OR PERHAPS TWICE A WEEK. HOWEVER, IF YOU DON'T FIND A NEW TOPIC POSTED, THERE ARE AS OF MARCH 2013 OVER 900 TOPIC THREADS TO WHICH YOU CAN READ AND WRITE COMMENTS. I WILL BE AWARE OF EACH COMMENTARY AND MAY COME BACK WITH A REPLY.
TO FIND A TOPIC OF INTEREST TO YOU ON THIS BLOG, SIMPLY TYPE IN THE NAME OR WORDS RELATED TO THE TOPIC IN THE FIELD IN THE LEFT HAND SIDE AT TOP OF THE PAGE AND THEN CLICK ON “SEARCH BLOG”. WITH WELL OVER 900 TOPICS, MOST ABOUT GENERAL OR SPECIFIC ETHICAL ISSUES BUT NOT NECESSARILY RELATED TO ANY SPECIFIC DATE OR EVENT, YOU SHOULD BE ABLE TO FIND WHAT YOU WANT. IF YOU DON’T PLEASE WRITE TO ME ON THE FEEDBACK THREAD OR BY E-MAIL DoktorMo@aol.com
IMPORTANT REQUEST TO ALL WHO COMMENT ON THIS BLOG: ALL COMMENTERS WHO WISH TO SIGN ON AS ANONYMOUS NEVERTHELESS PLEASE SIGN OFF AT THE END OF YOUR COMMENTS WITH A CONSISTENT PSEUDONYM NAME OR SOME INITIALS TO HELP MAINTAIN CONTINUITY AND NOT REQUIRE RESPONDERS TO LOOK UP THE DATE AND TIME OF THE POSTING TO DEFINE WHICH ANONYMOUS SAID WHAT. Thanks. ..Maurice
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Patients Killing Doctors
A discussion starting on a
bioethics listserv to which I subscribe. The opening of the thread and followed
by 2 responses. Would you want and are you in favor for your physician to have a gun available in his or her office accessible for self-protection? ..Maurice.
The current issue of the New Yorker (Aug.
25, 2014) has a man-bites-dog story "Under the Knife" (pp. 30-35)
about an epidemic of doctor-killings by Chinese patients Physicians, of course,
have been (mostly inadvertently) killing patients throughout the history of
medicine. With a few notable exceptions ( e.g., Gabrielle Zerbi 1455-1505/9 who
was killed by the sons of one in retaliation for the death of one his patients
a Turkish Pasha), patients have seldom retaliated in kind.
This happens in the United States as well.
There seem to be three major categories
The "political murder" of doctors who perform
The murder of psychiatrists.
The murder of doctors because of the patient's believe that the doctor caused a
Then I suppose one must also include what Grace Paley called "the little
disturbances of man" where patients kill doctors over broken hearts. e.g.
Dr. Herman Tarnower,
And maybe another category, related to chronic care of end-stage organ failure.
Nephrologist in MA shot over dialysis scheduling issue. Left paraplegic
Transplant surgeon in FL shot by patient.
Does anyone believe this will not be seen increasingly with "open carry"
laws, and people bringing semi-automatic weapons on errands?
Graphic: From Google Images
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
Graphic: From Google Images and modified by me with ArtRage.
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.
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.
"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.
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.
NOTICE: AS OF
TODAY AUGUST 24, 2014 "PATIENT MODESTY: VOLUME 68 WILL BE CLOSED FOR
FURTHER COMMENTS. YOU CAN CONTINUE POSTING COMMENTS ON VOLUME 69
Graphic: "Changing Course" (my title) From Google Images
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.
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.
AS OF TODAY AUGUST 3, 2014 "PATIENT MODESTY: VOLUME 67 WILL BE
CLOSED FOR FURTHER COMMENTS. YOU CAN CONTINUE POSTING COMMENTS ON VOLUME 68
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.
"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.
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.
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.
find out if my surgeon is involved in a POD?
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.
‘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
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.
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
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.
From Wikipedia, the
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.According
to philosopher Michael Marder, the
idea that plants should have rights derives from "plant
subjectivity", which is distinct from human personhood. Philosopher Paul Taylor holds that all life has inherent worth and argues for respect
for plants, but does not assign them rights. 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.
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. 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
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. 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
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
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.The
single-issue Party for Plants entered candidates in the 2010 parliamentary
election in the Netherlands. 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
In 2012 a river in New Zealand was legally
declared a person with standing (via guardians) to bring legal actions to
protect its interests.
Stone, Christopher D. (2010). Should Trees Have
Standing? Law, Morality, and the Environment (Third ed.). Oxford
University Press. ISBN 0-19-973607-3.
Stone, Christopher D. (1972). "Should Trees Have
Standing--Toward Legal Rights for Natural Objects". Southern
California Law Review 45: 450–87.
Hall, Matthew (2011). Plants as Persons: A
Philosophical Botany. SUNY Press.ISBN 1-4384-3428-6.
Michael Heidelberger Nature from within: Gustav
Theodor Fechner and his psychophysical worldview 2004, p. 54
Graphics: Photographs taken by me June 12 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
NOTICE: AS OF TODAY JULY 14 2014 "PATIENT MODESTY: VOLUME 66
WILL BE CLOSED FOR FURTHER COMMENTS. YOU CAN CONTINUE POSTING COMMENTS ON VOLUME67
"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
The Ethics of Delay: A Good or a Bad?
The following article I wrote for Bioethics.net
reproduced here with permission.
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
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
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
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
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
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
Is there time in an ER situation to make that determination of
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
Do physicians working in the ER agree with that respect of the
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.