Thaddeus Mason Pope

The Courts, Futility, and the Ends of Medicine

On August 13, 2010, the Appellate Division of the Superior Court of New Jersey declined to rule in the matter of Betancourt v. Trinitas Hospital, a case that raised questions about the limits of medicine in patients with advanced illness. In declining to rule, the judges wrote that resolving such issues in “the context of overheated rhetoric in the battlefield of active litigation” would not positively contribute to the policy debate around medical futility. These comments raise important questions about whether there is a role for the courts in helping to shape the boundaries of medical practice near the end of life. One view is that courts should not provide guidance on medical futility disputes. Texas has formalized this belief into law. The Texas Advance Directives Act bars substantive judicial review when intractable conflict arises between clinicians and patients or their surrogate decision makers. It gives physicians and hospital committees authority to unilaterally withdraw life-sustaining treatment when they believe attempts to extend a patient’s life are inappropriate. The state medical associations in California, Washington, and Wisconsin have considered resolutions supporting similar legislation. Another view is that he possibility of appeal to the courts should be preserved because courts have an important role in ensuring fair deliberations between parties (e.g., families and physicians) of unequal power. Both perspectives neglect a complexity: although judicial intervention is undesirable for the vast majority of decisions in medicine, preserving the possibility of appeal to the courts in medical futility cases may have beneficial effects at the societal level that are distinct from the benefits sought in individual cases. This viewpoint presents a justification for the limited judicial role in intractable futility disputes and delineates three potential benefits of preserving this option.

Clinical Criteria for Physician Aid in Dying.

Abstract More than 20 years ago, even before voters in Oregon had enacted the first aid in dying (AID) statute in the United States, Timothy Quill and colleagues proposed clinical criteria AID. Their proposal was carefully considered and temperate, but there were little data on the practice of AID at the time. (With AID, a physician writes a prescription for life-ending medication for a terminally ill, mentally capacitated adult.) With the passage of time, a substantial body of data on AID has developed from the states of Oregon and Washington. For more than 17 years, physicians in Oregon have been authorized to provide a prescription for AID. Accordingly, we have updated the clinical criteria of Quill, et al., based on the many years of experience with AID. With more jurisdictions authorizing AID, it is critical that physicians can turn to reliable clinical criteria. As with any medical practice, AID must be provided in a safe and effective manner. Physicians need to know (1) how to respond to a patients inquiry about AID, (2) how to assess patient decision making capacity, and (3) how to address a range of other issues that may arise. To ensure that physicians have the guidance they need, Compassion & Choices convened the Physician Aid-in-Dying Clinical Criteria Committee, in July 2012, to create clinical criteria for physicians who are willing to provide AID to patients who request it. The committee includes experts in medicine, law, bioethics, hospice, nursing, social work, and pharmacy. Using an iterative consensus process, the Committee drafted the criteria over a one-year period.

Reason-Giving and Medical Futility: Contrasting Legal and Social Discourse in the United States with the United Kingdom and Ontario, Canada

Disputes regarding life-prolonging treatments are stressful for all parties involved. These disagreements are appropriately almost always resolved with intensive communication and negotiation. Those rare cases that are not require a resolution process that ensures fairness and due process. We describe three recent cases from different countries (the United States, United Kingdom, and Ontario, Canada) to qualitatively contrast the legal responses to intractable, policy-level disputes regarding end-of-life care in each of these countries. In so doing, we define the continuum of clinical and social utility among different types of dispute resolution processes and emphasize the importance of public reason-giving in the societal discussion regarding policy-level solutions to end-of-life treatment disputes. We argue that precedential, publicly available, written rulings for these decisions most effectively help to move the social debate forward in a way that is beneficial to clinicians, patients, and citizens. This analysis highlights the lack of such rulings within the United States.

Voluntarily Stopping Eating and Drinking Among Patients With Serious Advanced Illness—Clinical, Ethical, and Legal Aspects

Patients with advanced illnesses sometimes request that physicians help hasten their death. Increasingly in North America and Europe, legal options allow physicians to perform this role. Among death-hastening options, the spotlight has been on physician-assisted death. However, voluntarily stopping eating and drinking (VSED) is also a course that patients may choose. Although VSED theoretically does not require physician involvement, clinician participation is critical in terms of initial assessment and ongoing management. In this review, we examine both clinical issues in assessing patients who are considering VSED and the clinical challenges that may emerge during VSED. We also explore some of the underlying ethical and legal considerations for physicians who either care for or decline to care for these patients. Physicians who care for seriously ill patients should be prepared to respond to patients’ requests to participate in VSED.

Brain Death: Legal Obligations and the Courts

Brain death, or death determined by neurologic criteria, has been legally adopted in all U.S. states for decades. Despite its long-established history, a lack of clear understanding has led to disputes requiring a legal forum for resolution. Recently, physicians and hospitals across the country have been impacted by a growing number of disputes about brain death. The authors offer clinicians a historical perspective on the evolution of brain death as a legal cause of death in the United States. They then review the more common legal categories of disputes encountered, including representative court cases for each. This overview provides physicians with a general legal perspective on brain death so they may better appreciate the pertinent issues if and when later confronted.

Brain Death: Legal Duties to Accommodate Religious Objections

First, Luce 1 states that New York allows families to reject the concept of determining death entirely by neurologic criteria. Th is is incorrect. Yes, in 1986, New York considered legislation that would have permitted families to reject DDNC. Th is legislation would have carved out a religious “exception,” such as New Jersey later did in 1991. But the New York legislation failed. Instead, the New York Department of Health promulgated regulations mandating hospitals to provide only “reasonable accommodation” of religious and moral objections.

Physician Power to Declare Death by Neurologic Criteria Threatened

BackgroundThree recent lawsuits that address declaration of brain death (BD) garnered significant media attention and threaten to limit physician power to declare BD.MethodsWe discuss these cases and their consequences including: the right to refuse an apnea test, accepted medical standards for declaration of BD, and the irreversibility of BD.ResultsThese cases warrant discussion because they threaten to: limit physicians’ power to determine death; incite families to seek injunctions to continue organ support after BD; and force hospitals to dispense valuable resources to dead patients in lieu of patients with reparable illnesses or injuries.ConclusionsPhysicians, philosophers, religious officials, ethicists, and lawyers must work together to address these issues and educate both the public and medical community about BD.

Brain Death Forsaken: Growing Conflict and New Legal Challenges

Thomas Paine wrote The American Crisis during the American Revolution. He made the following observation: “To argue with a man who has renounced the use and authority of reason... is like administering medicine to the dead.” Like much of Paines writing, this was powerful rhetoric. Paine wanted to metaphorically illustrate futility. But the metaphor does not seem quite as cogent, today. Not only is “death” a far fuzzier concept than it was in 1778, but many advocate that administering medicine to “the dead” may have some value. The determination of death by neurological criteria, commonly known as “brain death”, has been legally settled for nearly forty years. However, that consensus has become increasingly unraveled. On the one hand, one might think that a “backlash” to brain death is nothing new. After all, a medical and ethical academic debate over the conceptual coherence and ethical legitimacy of brain death has been stewing for decades. On the other hand, recent developments are materially different. Particularly over the last two years, the slow simmer of an academic debate has now begun to boil over into a legal conflagration. The eminent neurologist and ethicist, James Bernat, estimated that “critics and skeptics have not gained much traction with lawmakers.” While true for decades, that assessment is no longer accurate. Critics and skeptics of brain death have moved their arguments from the pages of books and journals to the pages of complaints and motions. They have been using the courts to successfully challenge prevailing and long-standing brain death principles. In other words, what has long been an intellectual and scholarly debate is now increasingly framed as a question of law and public policy. The legal status of brain death is no longer merely a subject for more scrutiny and deliberation. It is now a target for fundamental reassessment of settled practices. In his classic 1897 essay, The Path of the Law, Oliver Wendell Holmes, Jr. warned against blind imitation of the past and called for enlightened skepticism toward the law. He described the first step of this critical examination as pulling “the dragon out of his cave and on to the plain and in the daylight,” so that “you can count his teeth and claws and see just what is his strength.” The purpose of this article is to get the brain death dragon further out of his cave by summarizing and analyzing three legal attacks on brain death. Section I establishes the legal status of brain death. As codified in the Uniform Determination of Death Act (UDDA), brain death is legal death everywhere in the United States. Moreover, the implications of this status are clear. Clinicians have no treatment duties after brain death, except for: (1) a religious opt-out in New Jersey, and (2) temporary duties to accommodate objecting families in three other states. While the law is settled, family resistance is growing. Section II describes the leading reasons for family-clinician conflict. The rest of the Article describes three new court challenges to the legal status of brain death. Section III describes a challenge that contends that prevailing medical criteria do not measure what the law requires. Laws in every state provide that an individual is dead, if that individual has sustained “irreversible” cessation of “all” functions of the “entire” brain, including the brain stem. But the diagnostic tests that clinicians now normally use are not designed to, and cannot, evaluate or ascertain the satisfaction of these rather categorical and absolute standards. Section IV describes a challenge that contends that clinicians need surrogate consent to administer the apnea test. The apnea test is a key component of brain death assessment. While families have almost no rights to demand treatment after death, they have effectively used their rights before death. Families that have successfully objected to the apnea test have been able to prevent clinicians from determining brain death. Consequently, they have successfully prevented clinicians from declaring the patient dead and withdrawing organ-sustaining treatment. Section V describes a challenge that contends clinicians must indefinitely accommodate religious objections to brain death. The general rule is that clinicians have no duty to continue physiological support after brain death. But this presents a profound problem for patients with religious objections. For these individuals, the denial of physiological support violates fundamental values. Only New Jersey has legislatively granted a complete religious exemption. Some lawsuits contend that exemption is required by constitutional principles. In sum, U.S. society is grappling with three types of court challenges to brain death. Moreover, these challenges are new, so we do not yet have much definitive guidance. Because medical treatment conflicts surrounding brain death increasingly escalate to the courts, we need answers. I reach three conclusions. First, state legislatures should amend brain death laws to align with medical practice. Second, families should be able to refuse consent to the apnea test, only temporarily, pending transfer. Third, it is premature to expand religious exemptions.

Certified Patient Decision Aids: Solving Persistent Problems with Informed Consent Law:

The legal doctrine of informed consent has overwhelmingly failed to assure that the medical treatment patients get is the treatment patients want. This Article describes and defends an ongoing shift toward shared decision making processes incorporating the use of certified patient decision aids.

Facebook Can Improve Surrogate Decision Making

A significant body of empirical literature powerfully demonstrates that surrogates frequently fail to accurately and faithfully make the same treatment decisions that the patient would have made for herself, if she still had capacity (Pope, 2010). This inaccuracy is sometimes due to emotional and psychological barriers. But is also often due to the surrogate’s ignorance of the patient’s preferences. This article summarizes the challenges of using social media as well as the three opportunities it presents including (1) identify the right surrogate, (2) preventing the patient from becoming unbefriended, and (3) encouraging advance care planning.