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Medical Futility Laws and Policies: Are They Making a Difference

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Medical Futility Laws and Policies: Are They Making a Difference

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  1. Medical Futility Laws and Policies: Are They Making a Difference Thaddeus M. Pope, J.D., Ph.D. Widener University Law School Summit Hospital (Nashville, TN) December 4, 2009

  2. Futility laws and policies vary dramatically in effectiveness.

  3. Compare basic types of laws: • Content • Effect

  4. What is a medical futility dispute?

  5. Causes of inappropriate medicine Surrogate demand Defensive medicine Vague standards Physician religion Physician anti-death

  6. Provider wants to continue • Law requires continue • Family wants to stop • Family wants to stop

  7. Patient • Advance directive • Proxy • Agent • Surrogate • Conservator • Health care provider “Continue to treat” “Treatment is inappropriate”

  8. Some family wants continue • Some providers want continue • Family would stop if informed • Some family wants to stop • Some providers want to stop • Family wants to continue

  9. Strange family dynamics • Unavoidably imperfect communication • Greater access to medical information (e.g. Internet)

  10. Externalization • Costs • Guilt

  11. “religious grounds were more likely to request continued life support in the face of a very poor prognosis” Zier et al., 2009 Chest 136(1):110-117

  12. Rom Houben

  13. Communication and mediation usually work

  14. Prendergast (1998) • 57% surrogates immediately agree • 90% agree within 5 days • 4% continue to insist on LSMT

  15. Garros et al. (2003) 2d Unresolved

  16. Fine & Mayo (2003)

  17. Hooser (2006) 2922

  18. section 2.037

  19. Earnest attempts . . . deliberate over and negotiate prior understandings . . . • Joint decision-making should occur . . . maximum extent possible. • Attempts . . . negotiate . . . reach resolution . . ., with the assistance of consultants as appropriate. • Involvement of . . . ethics committee . . . if . . . irresolvable.

  20. . . . . • If the process supports the physician's position and the patient/proxy remains un-persuaded, transfer. . . . • If transfer is not possible, the intervention need not be offered.

  21. Consensus Intractable

  22. Mediation occurs in the “shadow” of the law

  23. What motivated unilateral refusal laws?

  24. Avoid patient suffering “This is the Massachusetts General Hospital, not Auschwitz.” “abomination,” “immoral,” “tantamount to torture”

  25. Moral distress

  26. Integrity of the profession

  27. Stewardship

  28. Distrust surrogate accuracy

  29. Exposure to civil liability • State HCDA (incl. fees) • Battery • Medical malpractice • IIED / NIED • Informed consent • EMTALA

  30. Exposure to criminal liability • Homicide Exposure to licensure discipline

  31. Liability averse Litigation averse too Process is punishment

  32. Easier to accede to surrogate demands • Patient will die • Provider will round off • Nurses bear brunt But not happy about it

  33. Massachusetts Medical Society (Nov. 2008) Chilled by legal sanctions Cannot do what think right

  34. “Why they follow the instructions of SDMs instead of doing what they feel is appropriate, almost all cited a lack of legal support.”

  35. 4 Legal Approaches

  36. 4 Basic Approaches • UHCDA model (e.g. TN) • Texas model • Ontario model • New Jersey model

  37. UHCDA model

  38. New Mexico (1995) Maine (1995) Delaware (1996) Alabama (1997) Mississippi (1998) California (1999) Hawaii (1999) Tennessee (2004) Alaska (2004) Wyoming (2005)

  39. Tenn. Code 68-11-1808(e) “A health care provider . . . may decline to comply with . . . health care decision that requires medically inappropriate health care or health care contrary to generally accepted health care standards . . .”