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					Bioethics Outline - McVety Style
  1. The Professional Ethos as a Means of Regulation
       a.   Havighurst – Health Care Law and Policy, 288-311
  2. Professional Education as a Means of Regulation
       a.   Bosk – Forgive and Remember, Chapter 2 (handout)
                 i. When deaths and complications disturb the surgical expectation of success,
                    those involved are compelled to find good reasons to account for failure. The
                    failure to sustain orderly surgical activity varies in intensity as a threat to a
                    subordinate’s competence, depending on how rudely expectation are breached,
                    how frequently an individual breaches expectations, and how easily, if at all, the
                    action may be reversed.
                ii. This section explores the meanings that are negotiated in the wake of breached
                    expectations, relates these meanings to the division of labor, and explores how
                    these meanings are fateful for those involved.
               iii. A surgeon’s attempts to explain preventable failure may be divided into four
                    categories:
                         1. technical error
                         2. judgment error
                         3. normative error
                         4. quasi-normative error
       b.   TECHNICAL ERROR
                 i. When a surgeon makes a technical error, he is performing his role
                    conscientiously but his skills fall short of what the task requires. Technical
                    errors are expected to happen to everyone but rarely. They are expected to
                    happen to everyone because surgeons understand that theirs is at best an
                    imperfectly applied science.
                ii. There are always complications from unfamiliar techniques. A resident may
                    make a mistake after a procedure. If these things didn’t happen to him, he
                    wouldn’t need schooling, he would already be a professor of surgery.
               iii. Mistakes happen, even ‘dumb ones’ . That is part of the profession. The job of
                    the doctor is to try to minimize these mistakes.
               iv. For an error to be defined as technical, two conditions must be met-
                         1. The error has to be speedily noticed, reported, and treated. Given the
                              inevitability of problems, their speedy report underscores a
                              houseofficer’s conscientiousness and his concern for the patient; it pays
                              tribute to the norms of clinical responsibility at the same time that
                              events themselves mock these norms. A slow discovery on the other
                              hand would lead the attending (teacher) to suspect more than a
                              technical error; they may begin to think that there is a moral lapse
                              occurring.
                         2. Mistakes must not be made frequently by the same person to be
                              technical. When an individual makes mistakes frequently he cannot
                              legitimately claim that a momentary lapse occurred. Attendings would
                              not accept such a claim because frequent failure puts doubt in the
                              subordinate’s efforts to learn to solve these mistakes.
                v. The training system of housestaff is set-up in such a way as to minimize
                    mistakes by ‘beginners’. Attendings always watch over housestaff as they do
                    procedures to make sure all mistakes are minimized. Also, housestaff only
                    progress if they have completed easier procedures without mistakes.
               vi. Control of work and supervision is most intense during the early stages of the
                    training year and relaxes as training proceeds and subordinates gain exposure to
                    and experience with new techniques.
        vii. An important part of the subordinate’s training is learning to discriminate
              between situations which he can and cannot handle. A request for aid is always
              honored. Surgical housestaff learn to operate in much the same way that small
              children learn to ride bicycles. An unseen hand supports their efforts. The hand
              is withdrawn by stages and the novice finds himself operation on his own.
c.   JUDGMENTAL ERRORS
           i. A judgmental error occurs when an incorrect strategy of treatment is chosen.
              These errors are also unevenly distributed through the division of labor.
              Subordinates who have only little discretionary power make few and relatively
              minor judgmental errors.
          ii. In these cases judgment is not always incorrect in any absolute sense; the
              surgeon, given the clinical evidence available at the time, may have chosen an
              eminently reasonable course of action, but the result, forces the surgeon to
              consider whether some alternative might have been more profitably employed.
        iii. Physicians understand that textbook principles of care have to be compromised
              to meet the immediate situation, that results and not the elegance of a clinical
              blueprint separate acceptable from unacceptable practice.
         iv. The two most common judgmental errors that attendings make (since attendings
              are more likely to make these type of errors)-
                   1. overly heroic surgery
                   2. failure to operate when the situation demands
          v. Overly heroic surgery involves the decision to operate when the patient cannot
              tolerate the procedure. This decision to operate is a surgeon’s commitment to
              his skills; it is also a moral decision about what ‘tolerable’ risk is and a decision
              about what the proper role of a physician is – whether he is charged with merely
              sustaining life or whether he may subject his patients to great risk in order to
              upgrade the quality of life.
         vi. A second common judgmental error of attendings is the failure to establish a
              clear-cut plan of action for chronic problems. For most these patients,
              secondary problems make operation impossible. These types of errors are not
              often marked by death, but by a waste of precious medical resources.
        vii. Judgmental errors can happen to housestaff too. When this happens, they
              review their entire course of action to see where they might have acted
              differently. Attendings encourage this and see it as a symbolic act of the
              subordinate’s determination to learn.
       viii. When housestaff make judgmental errors, these are not seen as large
              deficiencies. Indeed they are treated like technical errors, as long as they are
              taken care of quickly. This is a time to reinforce learning techniques.
         ix. Attendings are also insulated from negative impacts associated with judgmental
              errors.
                   1. Their professional accomplishments protect them from the imputation
                        of defective judgment; any failure must be weighed against many
                        successes, research publications, and the like.
                   2. Second, operating on difficult cases that others would not handle is a
                        pride of place. This is seen as heroic and pro-active.
d.   NORMATIVE ERRORS
           i. A normative error occurs when a surgeon has, in the eyes of others, failed to
              discharge his role obligations conscientiously. Technical and judgmental errors
              are errors in a role; normative errors signal error in assuming a role.
          ii. These errors are not distributed throughout the division of labor but are almost
              exclusively subordinate errors. Normative error occurs when, in the attendings
              judgment, a houseofficer’s conduct violates the working understandings on
              which action rests.
        iii. When a normative error occurs, the mistake renders it impossible to consider the
              person making it – in legal terms – a just a reasonably prudent individual.
 iv. The largest clinical rule attendings try to push into the mind’s of their housestaff
     is the ‘no surprises’ rule. Superordinates expect their subordinates to inform
     them of all changes, however small, in the service’s status.
          1. Despite tensions and the resulting temptation for the subordinate to go
               it on his own (rather than call an attending to inform him of what has
               occurred), the no-surprises rule is the overarching principle by which
               normative errors are defined.
          2. The definition of what a surprise is can be highly debated. Basically it
               comes down to what an attending feels is a surprise. A surprise for an
               attending is any violation of the principle of full and honest disclosure.
               A surprise for the attending carries with it the implications that a
               housestaff member was lazy, negligent, or dishonest.
          3. Normative breaches are breaches of the etiquette governing the role
               relations between attending surgeons and housestaff. A normative
               error in turn carries with it the implication that a fundamental breach of
               etiquette governing the role relation between doctor and patient has
               occurred. Physicians are expected to treat conditions as they arise or to
               make certain that they will be treated before he moves on to other tasks.
               This is serious because of the liability involved.
  v. There are two other types of surprises that are treated as normative errors.
          1. A house member’s inability to get along with nurses is a failure that
               attendings treat as normative. It violates the tacit assumption that one
               will not let personality intrude on clinical care.
                    a. Housestaff failure to maintain good working relations on the
                         ward is a serious mistake; it indivates that a subordinate lacks
                         the skills necessary to run a surgical team. A housestaff
                         member who quarrels with support staff is blamed for placing
                         his own needs above those of patient care. There are always
                         ways of dealing with improper nursing, quarrelling is not
                         among them.
                    b. Complaining like this means that a subordinate is not ready to
                         be asked for help. In this case the whole set of controls built
                         into task performance by the division of labor and norms of
                         clinical care breaks down. A subordinate will later violate the
                         no surprises rule when there are subordinates under him,
                         which is unforgivable.
          2. A second serious error is similar to inability to work agreeably with
               nurses, that is, the inability to secure the cooperation of patients and
               their families. To housestaff fall the problems of informed consent, of
               gaining patient’s cooperation preoperative and postoperative. A failure
               of these tasks is an indication that a subordinate cannot control the
               normal troubles of his environment. All of this creates extra work for
               the attending. This is different from judgmental error or technical
               error, because it is so easily avoidable.
 vi. Although normative errors occur for both attending and housestaff, subordinates
     are the only ones that are criticized and punished for it. There is never a good
     reason for normative errors because it means something else is coming in front
     of patient care.
vii. Attendings escape blame for their normative errors for three reasons-
          1. privileges of rank insulate them from many of the pressures that hurt
               housestaff. Because of their rank they are not accountable to anyone
               day to day.
          2. Credentials are a presumptive moral licensing.
          3. Although the attending is the legally responsible agent for patient care,
               the division of labor does not always reflect this. Thus, division of
                        labor insulates the attending from the normal traumas of the job and
                        they are less likely to have normative lapses.
       viii. Normative errors are taken seriously by housestaff and attendings. Housestaff
             fear normative error much more than they do other type of error. They fear
             normative error destroy their credibility, hurt recommendations and may carry
             other negative sanctions.
        ix. Normative errors show a break in the respect of proper lines of authority which
             can carry serious weight.
         x. A technical or judgmental error then says something to an attending about a
             recruit’s level of training; a normative error says something bout the recruit
             himself. This is a way for attendings to differentiate between housestaff.
             Legally this is a larger problem because it means a failing of the system that
             could carry large future ramifications. The rule of thumb for attendings apply
             here is, even the most technically incompetent can be trained for something – he
             will rise or sink to his own level of proficiency. But the morally bankrupt
             represents a threat to the surgeons and must be treated as a serious problem
e.   QUASI-NORMATIVE ERRORS
          i. Normative errors are breaches of standards of performance that all attendings
             share: quasi-normative errors are eccentric and attending specific. Each
             attending has certain protocols that he and he alone follows. A subordinate who
             does not follow these rules mocks his superordinate’s authority. His behavior is
             a claim that his judgment is adequate as his superior’s: and even though in no
             absolute sense can one claim that a mistake has been made, a subordinate who
             makes a quasi-normative error risks his reputation as a recruit.
         ii. This is trust and loyalty based. Some attendings approach a problem in one
             fashion with very good results: others have equally good results with a
             competing approach. Attendings believe that housestaff are on their services to
             learn their approach to the surgical management of diseases.
        iii. In any actual case, the attending who is responsible for the patient’s care is the
             one who says whether one approach is correct or not. The subordinate who
             favors and intiates another attending’s approach over the one on whose service
             he is working opens himself up to severe criticism.
        iv. Compliance with attending dictates, however open to debate they are, is an
             indicator that a subordinate is a responsible member of the team who can be
             trusted. Attendings feel that the subordinate who makes quasi-normative errors
             is also likely to make normative errors: his behavior does not inspire trust.
         v. When a normative breach is made, a double error is involved; standards of
             clinical care are breached and the etiquette governing role relations among
             attendings and housestaff is breached. When a quasi-normative error occurs,
             clinical care may be correctly administered and the general etiquette of role
             relations may even be followed. In this instance, the subordinate is wrong for
             all the right reasons; his fault is that of hubris: he tried to act like an attending.
        vi. Quasi-normative errors are serious mistakes for subordinates to make; for them
             to damage a subordinate, however, he must make them on more than one service
             or he must make them blatantly. It is a way of showing what the proper
             alignment of roles is, of communicating to housestaff that the yare in the
             hospital not so much to treat patients as to learn to treat them.
f.   EXOGENOUS SOURCES OF FAILURE
          i. Surgical intervention can fail for a number of other reasons that do not implicate
             the competence of a surgeon in any direct way.
         ii. First, there is failure from disease.
                   1. Sometimes the best efforts of surgeons cannot cure those in the more
                        advanced stages of terminal illness. These deaths indicate to surgeons
                        what the limits of their skills are: and they are seen as inevitable.
                        Heroic care only goes to salvageable patients. Non-salvageable
                           patients are allowed to die from their diseases. These two classes of
                           patients help determine the allocation of scarce healing resources.
              iii. Second there is patient procrastination or non-cooperation.
                       1. Often surgical intervention fails because patients neglect to report
                           symptoms until too late. Here, the patient must share responsibility for
                           the outcome with the surgeon. The necessity for ‘informed consent’
                           often compromises what the surgeon would like to do.
              iv. Third, there is nursing and support staff error.
                       1. Often a failure can be traced to the mistakes of nurses and others
                           involved in direct patient care. Medication gets failed to be passed
                           properly, etc. Even though housestaff is in charge of support staff,
                           these are seen as errors that go along with the environment and are
                           somewhat expected.
               v. Fourth, there is machine malfunction.
                       1. Some failures occur because of breakdowns in the enormous
                           technology that supports care in the modern hospital.
3. Defining Death – Dresser, Bioethics and Law (1-62)
     a.   Because of medical advancement, the moment at which an individual dies, indeed, the
          definition of death itself, has to some extent become a matter of human control and
          choice. As a result, phenomena that were once dictated to natural forces are now the stuff
          of philosophical, legal, social and policy analysis.
     b.   Some analysts contend that permanent cessation of the capacity for consciousness marks
          the onset of human death, but the law has rejected this view. At the same time that the
          law has refused to equate permanent unconsciousness with death, however, courts and
          legislatures have developed rules permitting withholding or withdrawing of life
          sustaining measure from permanently unconscious individuals.
     c.   The advent of artificial methods of maintaining respiration and the need for viable organs
          for transplantation triggered an expansion beyond the traditional circulatory-respiratory
          criteria to encompass determination of death according to whole-brain criteria. This
          expansion permitted death to be declared in individuals whose heart and lung functions
          were artificially maintained. It also permitted organ retrieval from such individuals whit
          the consent of the individuals next of kin. The whole brain formulation is now legally
          accepted in all states.
     d.   NOTE ON BASIC CONCEPTS RELEVANT TO END OF LIFE DECISIONMAKING
                 i. The guiding theme is that such decisions are properly controlled by the
                    individual whose life and physical well-being are at stake, as opposed to the
                    state, health professionals, family members or anyone else. People assign
                    varying importance to prolongation of life, avoidance of suffering, preservation
                    of functioning, and other quality of life considerations, they must be permitted to
                    decide in accord with their personal beliefs and values.
                ii. Legal analyses have relied on a variety of categories to guide policy on forgoing
                    life-sustaining treatment. Although the classifications are sometimes cited as
                    helpful in resolving treatment dilemmas, they often become a substitute for
                    analysis by serving as accessories in a process of conclusory reasoning.
                         1. For example early in the policy development process, a distinction was
                              sometimes made between so-called extraordinary treatment, which
                              could be forgone at the patient’s or surrogate decision maker’s request
                              and ordinary treatment which was deemed mandatory in virtually all
                              cases. (In re Storar, Sup. Ct. 1980).
                         2. This distinction lost favor because the same technology could be
                              classified as extraordinary or ordinary depending on its availability, and
                              that should not be the determining factor in determining a patient’s
                              well-being. (In re Quinlan)
                         3. This distinction was borne out of Roman Catholic Theology, where a
                              specific intervention was classified depending on its expected benefits
                         or burdens for the patient. The problem with this was who decided
                         what was defined as a benefit or burden. (Barber v. Superior Court)
        iii. A second set of distinctions commonly invoked is based on the different legal
              and moral significance assigned to-
                   1. affirmative acts that cause a person’s death
                   2. failures to intervene when a person’s life is threatened by natural forces
                         or the acts of another.
         iv. In this framework, affirmative acts are labeled killing and failures to intervene
              referred to as allowing to die.
          v. According to this analysis it is permissible for health professionals to forego life
              sustaining treatment on the theory that the yare simply allowing the patient to
              die or allowing nature to take its course anyway.
         vi. This method is very ambiguous. The ambiguity inherent in this passive/active
              distinction is further heightened when one performs an act within an overall plan
              of non-intervention, such as when a doctor writes an order not to resuscitate a
              patient. (In re Conroy).
        vii. The act omission distinction also overlooks the fact that physicians’ omissions
              can sometimes be culpable and an appropriate basis for liability. This is because
              physicians have a duty to act to benefit their patients. Thus, physicians risk civil
              liability if they fail to administer beneficial life-sustaining treatment in
              emergencies or when patients request treatment.
       viii. Accordingly many argue that the key issue is not whether a case involves an act
              or omission on the part of a physician, but whether treatment is forgone because
              the patient or surrogate refused it or for some other acceptable reason.
e.   FORGOING MEDICAL NUTRITION AND HYDRATION
           i. Courts and legislatures formulating policy on life sustaining treatment generally
              have not assigned significance to the specific procedure to be forgone. An
              exception is medical nutrition and hydration, which has sometimes been singled
              out as meriting a special approach.
          ii. Some analysts contend that the failure to provide nutrition and hydration to
              patients was tantamount to giving the patient a lethal injection, on grounds that
              death from dehydration or starvation was produced by a cause independent of
              the patient’s underlying illness or injury.
        iii. Beginning in 1982 courts began holding that separate rules were not required for
              decisions on withholding or withdrawing nutritional support. (See Barber v.
              Superior Court). This stemmed from courts not believing that forgoing
              nutritional support was independent from the patients underlying illness (no
              shit).
         iv. Concern about the patient’s potential for suffering underlies some of the
              hesitance about forgoing nutritional support. Yet competent terminally ill
              patients who refuse such support when they become unable to eat and drink
              report that they are comfortable. These patients may actually experience less
              discomfort than those receiving nutritional support for the latter are subject to
              the procedure’s side effects and complications.
f.   DEFINING DEATH
           i. Until the 20th century two formulations of death were used.
                   1. One focused on movement of the so called vital liquids that marked a
                         living creature. This included the flow of air.
                   2. The other formulation was based on Christian belief that immaterial
                         essence or soul as the core of the living human being defined life.
          ii. Death can be defined on a continuum. Some used to think that death occurred
              when the body started to actually decay. Now a days we define death much
              further down the continuum. Ultimately, law and public policy will incorporate
              the definition deemed to have the strongest moral, social and practical
              justification.
        iii. The Failure of the Whole Brain Function – Youngner and Bartlett
         1. A formulation about death consists of a concept or definition of what it
            means to dies, operational criteria for determining that death has
            occurred and finally specific medical tests that show whether the
            criteria have been fulfilled.
iv. Death formulations – President’s Commission on Defining Death
        1. The interrelationships of Brain, Heart and Lung Functions
                 a. The brain has three sections: the cerebrum, the cerebellum and
                      the brainstem.
                 b. The cerebrum controls higher brain functions such as complex
                      thought, memory and feeling.
                 c. The brainstem is called the lower brain because it controls
                      vegetative functions, swallowing, yawning and sleep/wake
                      cycles.
                 d. Respiration is also controlled in the lower brainstem as well.
                      Destruction of the brain’s respiratory center stops breathing
                      which deprives the heart of oxygen. This will cause the heart
                      to stop as well. The traditional signs of life – respiration and
                      heartbeat – disappear; the person is dead. The vital signs
                      traditionally used in diagnosing death thus reflect the direct
                      interdependence of respiration, circulation and the brain.
                 e. The artificial respirator and life support system has changed
                      the simple picture. Provided the lungs have not been too
                      badly damaged, the machine can keep people alive.
                 f. The criteria for determination of death
                            i. An individual presenting the findings in either section
                                (a) cardiopulmonary or section (b) neurological is
                                dead. In either section, a diagnosis of death requires
                                that both cessation of functions, as set forth in section
                                1 and irreversibility as set forth in subsection 2 be
                                demonstrated.
                                     1. An individual with irreversible cessation of
                                         circulatory and respiratory functions is dead.
                                              a. Cessation is recognized be an
                                                   appropriate clinical exam.
                                              b. Irreversibility is recognized by
                                                   persistent cessation of functions
                                                   during an appropriate period of
                                                   observation and/or trial of therapy.
                                     2. An individual with irreversible cessation of
                                         all functions of the entire brain, including
                                         the brainstem is dead.
                                              a. Cessation is recognized when
                                                   evaluation discloses findings of i
                                                   and ii
                                                          i. Cerebral functions are
                                                              absent (there must be deep
                                                              coma, that is , cerebral
                                                              unreceptivity and
                                                              unresponsive. Medical
                                                              circumstances may require
                                                              the sue of studies such as
                                                              EEG or blood flow study
                                                              to confirm this) AND
                                                         ii. Brainstem functions are
                                                              absent (reliable testing of
                                                              brainstem reflexes
                                                                        requires a perceptive and
                                                                        experienced physician
                                                                        using adequate stimuli.
                                               3. Irreversibility is recognized when evaluation
                                                    discloses findings of a, b and c.
                                                         a. The cause of coma is established
                                                              and is sufficient to account for the
                                                              loss of brain functions, AND
                                                         b. The possibility of recovery of any
                                                              brain functions is excluded AND
                                                         c. The cessation of all brain functions
                                                              persists for an appropriate period of
                                                              observation and/or trial of therapy.
         v. The Uniform Determination of Death Act [UDDA]
                  1. This was established 1981 to convey that the heart-lung and brain
                       criteria are simply two ways of assessing the same state. The Act
                       reads-
                            a. An individual who has sustained either (1) irreversible
                                 cessation of circulatory and respiratory functions or (2)
                                 irreversible cessation of all functions of the entire brain,
                                 including the brain stem, is dead. A determination of death
                                 must be made in accordance with accepted medical standards.
                  2. Some would just have total cessation of brain function be the true test.
                       The point is that, when cessation of lung-heart occurs, then really the
                       brain dies too, so that should be the final determination.
                  3. Despite ongoing debate over its legitimacy, the whole brain
                       formulation of death has achieved widespread acceptance among
                       medical and legal professionals. More than half of the states have
                       adopted the UDDA and all states have adopted some version of the
                       whole brain formulation through either statute or court decision.
g.   HIGHER BRAIN FUNCTIONS FORMULATIONS OF DEATH
          i. In the 80’s people started to support a totally different formulation of death
             based away from the vital fluids concept. Proponents were fixated on brain
             functions essential to human life, as the layperson would describe it.
         ii. This concept of death is based on irreversible loss of the capacity for mental or
             social functioning. If a group of hypothetical human beings had irreversibly lost
             the capacity for consciousness or social interaction, they would have lost the
             essential charter of humanness and according to this definition they would be
             dead even if they had capacity of integration of bodily function.
        iii. Rationality, consciousness and social interaction are all foundation tests of what
             make us human and so they would define this concept of death.
        iv. The president’s commission rejected the higher brain function formulation for
             these reasons-
                  1. there is no general agreement among philosophers, physicians and
                       laypersons regarding the mental or social capacities that are essential to
                       human life.
                  2. the essential capacity argument also supports the unacceptable position
                       that human beings with severe dementia or other cognitive impairment
                       should be labeled dead.
                  3. because individuals with irreversible cessation of higher brain functions
                       can breathe without mechanical assistance, treating such persons as
                       corpses would depart too radically from the traditional concept of
                       death.
                  4. cessation of higher brain functioning cannot be determined with the
                       degree of certainty we should demand of a legal definition of death.
         v. There is an ongoing argument when ‘brain-birth’ occurs and at that point a fetus
             should have rights. This is the point that a fetus’ has a brain forming to have
             higher brain function. Check out page 37 of the course pack.
        vi. Anencephaly is a condition which the brain, skull and scalp fail to fully develop.
             Although they may have totally normal organs, usually all higher brain functions
             are gone or non-existent. In the mid-80’s physicians and parents began
             campaigning to create laws that would allow these infant’s organs to be
             harvested. So far this has not had much success.
h.   SOCIAL AND POLICY IMPLICATIONS OF DEFINING DEATH
          i. Defining death is important because when someone is dead, certain previously
             unacceptable behavior becomes permissible. This includes termination of all
             medical treatment, possible retrieval of organs, etc.
         ii. Focusing on whole brain death as real death presents problems because it fosters
             a suspicion that we have this formulation only because of the utilitarian desire to
             obtain organs for transplant.
        iii. Two advantages of the traditional vital signs were their accessibility to
             measurement (not only to the medically trained) and their obvious connection to
             the reality of death as perceived in everyday life.
                  1. The whole brain signs of life and death are less well comprehended by
                       non-specialists and they measure functions that are less clearly
                       manifest.
                  2. Attitudes toward death change over time…that is preciously why the
                       new definition of death should therefore supplement rather than
                       supplant the existing legal concept.
                  3. Normal human contact does not involve the analysis of which life
                       functions are so essential that a person should not survive without
                       them. The whole brain formulation breaks with how we define people.
                       If we can see them breathing, then we believe they are alive. We have
                       been conditioned to associate eve the most mundane physiologic
                       functions with life.
        iv. Strachan v. Kennedy Memorial Hospital (1998)
                  1. This appeal poses important issues concerning the duty of health-care
                       providers to turn over to the next of kin a family member’s dead body.
                       P son’s body had been maintained on a life support system even after
                       the parents had demanded that the system be removed following the
                       unanimous conclusion of several physicians that the young man was
                       brain dead.
                  2. The patient shot himself through the head in an apparent suicide. He
                       was diagnosed as brain dead by a few doctors. The doctors asked the
                       parents (the plaintiffs) if they could harvest the patient’s organs since
                       his body was being kept alive through use of an artificial respirator
                       unit.
                  3. Ps decided they did not want the patient’s organs to be harvested and so
                       they told the doctors to take him off the machines and let his body die.
                       The doctor’s could not take him off the machines until the hospital
                       administration gave them the ok.
                  4. The administration said that the doctors should do a few EEGs to insure
                       that the patient was indeed brain dead. Also they should get a release
                       from the parents. After doing this, the hospital disconnected the patient
                       from the machines and turned the body over the parents.
                  5. Plaintiff’s (the parents) instituted action against the hospital based on
                       two separate duties owed by the defendants to the plaintiff’s. The first
                       resting on a duty to have in place procedures for the removal of the
                       plaintiff’s son from the life-support system on the plaintiff’s request.
                       The other based on a duty to release to the parents their son’s dead
                       body.
                                    a.   However, there should only be one issue in this case – the duty
                                         to act reasonably in honoring the family’s legitimate request to
                                         turn over their son’s body.
                                    b. There is a quasi-right to the body of a dead family member,
                                         and so the question is, when technically was the son dead?
                                         Was it when he was pronounced brain dead or when he was
                                         taken off the machines?
                          6. Traditionally death was defined by irreversible cessation of
                               cardiopulmonary function. With advances in technology and organ
                               harvesting, many states have adopted new definitions of death
                               incorporating brain death. In the criminal context, brain dead is
                               considered true death. And other courts have also adopted this version
                               of death. Therefore, we will hold that the plaintiff’s son was dead
                               when he was first pronounced brain dead, not when he was taken off
                               the respirators.
                          7. The court determines that there was ample evidence to support the
                               jury’s conclusion that defendants violated their duty to honor plaintiffs’
                               legitimate request to turn over their son’s dead body.
                  v. Some philosophers argue that the whole brain definition of death is motivated
                     only for the use of organ harvesting and research.
                 vi. The whole brain definition is somewhat more complex because it is unclear
                     when the brain is entirely dead. There are subtle nuances that differentiate
                     between each case, and so this makes it more difficult to give an exact
                     declaration that someone is dead.
                vii. Some argue, therefore, that the conception of death should be based on what the
                     individual feels or next of kin. If this does not happen, then there is a general
                     legal definition that could be followed.
                          1. Given individual religious beliefs, some states have altered their rules
                               concerning the pronouncement of death to include these beliefs. In
                               these cases death shall be declared and time of death fixed solely upon
                               the basis of cardio-respiratory criteria rather than on brain death (New
                               Jersey Statute).
4.   Decisions on Life-Sustaining Treatment: Competent Patients -
     Dresser (63-97)
        a.   McKay v. Bergstedt
                 i. Bergstedt is 31 year old mentally competent quadriplegic who wanted to
                    confirm his right to die.
                ii. The P suffered from quadriplegia because of a diving accident that occurred
                    when he was ten. After seeing his father become ill and suffer from imminent
                    death, the P decided he wanted to be released from a life of paralysis held intact
                    by the life sustaining properties of a respirator. His infliction is non-terminal as
                    long as he stays on the respirator.
               iii. The record shows that physicians have certified that he will always be
                    quadriplegic and that mentally he understands the nature and consequences of
                    his decision.
               iv. The P wanted an ordering permitted the respirator to be removed, that he be
                    given a sedative to ease the pain as he die, that the person removing the
                    respirator be absolved of liability and that his death record show he died of
                    natural causes rather than suicide.
                v. Because many individuals find themselves facing a terminal condition
                    susceptible to indefinite suspension by medical intervention the question arises
                    with increasing frequency and fervor concerning the extent to which persons
                    have the right to refuse an artificial extension of life. Courts considering the
                    question that the answer is to be found in balancing the interest of the person
                    and the state.
           vi. The state interests are as follow-
                     1. the interest of the State in preserving the sanctity of all life
                     2. the interest of the State in preventing suicide
                     3. the interest of the state in protecting innocent third persons who may be
                          affected be the death of the party seeking relief
                     4. the state’s interest in preserving the integrity of the medical profession
                     5. the state’s interest in encouraging the charitable and humane care of
                          those whose lives may be artificially extended under conditions which
                          have the prospect of providing at least a modicum of quality living.
          vii. Under common law there is a strong right of people to do what they want with
                out restraint.
                     1. however, courts have found that the right to refuse medical treatment is
                          not absolute.
                     2. Also something to weigh is the constitutional privacy interest a person
                          may have to withhold or withdraw medical treatment.
         viii. The court then goes through and evaluates all of the State interests listed above
                against the interests the P would have in having the machines taken away. In the
                end, the court finds the state interests uncompelling and sides for the P.
           ix. The dissenting opinion focuses on what a natural death is, and how the ventilator
                had become part of the P’s life.
            x. One of the biggest issues here and in many cases like it (Bouvia and Cruzan)
                deals with what should be considered suicide and what should be considered the
                patient’s right to refuse treatment. This also brings up the difference between
                terminally ill and non-terminally ill. Some have tried to argue that only
                terminally ill patients should be able to refuse life saving medical treatment.
b.   The Legal Status of Three Types of Treatment Refusals Remains Uncertain:
             i. Oral Nutrition and Hydration
                     1. This debate has often focused on the question whether such
                          interventions are medical or not.
                     2. The current moral presumption is that medical procedures may be
                          forgone while non-medical ones may not.
                     3. Oral feeding is normally not assumed to be medical. But this can be
                          painful, and so the debate rages on.
            ii. Operating Room CPR
                     1. It is legally appropriate for CPR not to be given to people where this
                          would prolong the agony of the dying patient.
                     2. What happens when that same person that has declined CPR goes into
                          surgery and then needs it? Physicians think that they should provide it
                          in this case because the doctor is the ‘cause’ of need for the CPR
                          because of the surgery.
          iii. Another area that is somewhat confusing is where medical care must be given to
                someone outside the medical setting.
                     1. These are situations where doctors encounter someone in medical
                          trouble just by happenstance outside of a medical setting.
                     2. What happens when these people have recorded a non-resuscitation
                          instruction?
c.   It is conceivable that courts could find a third party’s interests above the interests of the
     person refusing treatment (if this means they will die).
             i. This could happen if a parent tried to refuse treatment when they would leave a
                child an orphan (courts have found this not to be the case)
            ii. This could happen if a pregnant woman tried to refuse a blood transfusion that
                would save her and her fetus (court’s have been slowly saying that the woman
                would still have the right to refuse treatment in this case).
          iii. This could happen if a poor man needed to have an amputation but refused. In
                this case Medicaid would then have to pay for his expensive and prolonged care
                     because he refused. Should he be allowed to waste the state’s resources when it
                     is not necessary?
                iv. Also Jehovah’s witness may refuse blood transplants and this has been deemed
                     allowable.
        d. Rarely will the state’s interest override that interest of a dying patient/person.
                  i. Only one place does this really see effect, the prison system. Some prisoners
                     might refuse treatment in order to be moved to a better facility. This is seen as
                     violating the state’s interest in maintaining an orderly prison system.
        e. Bouvia is still alive even though she has been arguing in court that she should be allowed
           to refuse treatment (food tubes). She has been able to eat orally and this has kept her
           alive. In another well publicized case a quadripilegic man won his right to exercise his
           refusal. He has decided not to exercise this right yet.
        f. Along this same line is the case of Georgia v. McAfee. McAfee sought judicial action
           after four years of being dependent on life support. As a result of the publicity he
           received because of the case, he got many job offers, money and an apartment. McAfee
           decided to postpone disconnecting the respirator because his life was ‘turning around’.
                  i. The concern here is that patients will refuse life sustaining treatment because
                     they feel angry, depressed, abandon or worthless in the grip of emotional
                     distress.
5.   Competence To Make Treatment Decisions – Dresser (98-122)
        a. The law formally presumes that all persons over the age of majority are competent to
           exercise the full array of rights that accompany adulthood, including the right to decide
           about medical treatment.
        b. Courts take one of two actions when a patient’ s capacity impaired.
                  i. The court may find the subject incapable of decisionmaking on all matters
                     involving her person and property. In such cases, a guardian is appointed to
                     make all decisions on the subject’s behalf.
                 ii. The court may find a person incompetent to exercise choice in a particular area,
                     and appoint a limited guardian to make decisions in that area alone. The latter
                     approach is increasingly endorsed to avoid disempowering people who retain the
                     capacity for independent decisionmaking in some domains.
        c. Despite the formal requirement for an adjudication of incompetence prior to depriving a
           person of decisionmaking authority, patients are frequently deemed incapable of
           treatment decisionmaking without resort to the courts.
        d. The inquiry into a patient’s decisionmaking capacity sometimes becauins when the
           patient refuses a treatment intervention deemed necessary by the family and health care
           staff.
                  i. Lane v. Candura
                          1. 77 year old patient that suffered from gangrene would not consent to an
                               operation to amputate the leg. Her daughter filed petition in court to
                               seek temporary guardianship with authority to consent to the operation
                               on behalf of her mother.
                          2. The patient has had many operations and does not want anymore
                               because she thinks she is a drain on her family. She is sometimes
                               confused and sometimes very clear in her mindset. She claims that she
                               welcomes death since many things in her life push her towards this
                               (death of her husband, etc.). She knows that without the operation she
                               will die.
                          3. A person is presumed to be competent unless shown by the evidence
                               not to be competent by the petitioner for the guardianship. The law
                               protects a person’s right to make her own decision to accept or reject
                               treatment, whether that decision is wise or unwise.
                          4. Just because she has changed her mind a few times about the treatment
                               does not make her incompetent. No guardianship should be granted in
                               this case.
        e. Standard of legal competence to make Medical Decisions
                   i. Ability to communicate to others
                  ii. Ability to understand the relevant information
                 iii. Ability to appreciate the nature of the situation and its likely consequences
                 iv. Ability to manipulate information rationally
         f. An interesting aspect of this is that there is confusion over the concepts of self-
            determination and well-being. Because people’s interest in making important decisions
            for themselves is not based solely on their concern for their own well-being, these two
            values of patient well-being and self-determination can sometimes conflict.
         g. Candura represents what has become the consensus position on the appropriate definition
            of competence to decide on life-sustaining treatment. There is general agreement that the
            competence examination should assess the patients’s ability to engage in the
            decisionmaking process, as opposed to the rationality or reasonableness of the choice
            itself.
         h. Northern is a case where the patient refused amputation of her feet even though she
            would die if this did not happen. She did not acknowledge that she needed the surgery
            because she refused to believe that something was clearly wrong with her feet. The
            court appointed a guardian to consent to the operation.
         i. There is some debate over how to test competence. Also, whether a judge can better
            measure competence compared to a hospital or whether there should be different tests for
            competence given the type of procedure that is being refused.
6.   Incompetent Patients: Constitutionally Permissible Standards CRUZAN v. DIRECTOR
     (Handout) and Dresser (154-180)
         a. Cruzan v. Director, Missouri Department of Health
                   i. Guardians of patient in persistent vegetative state brought declaratory judgment
                      action seeking judicial sanction of their wish to terminate artificial hydration and
                      nutrition for patient.
                  ii. The supreme court held, the United States Constitution did not forbid Missouri
                      from requiring that clear and convincing evidence of an incompetent’s wishes to
                      the withdrawal of life-sustaining treatment
                 iii. State supreme court did not commit constitutional error in concluding that
                      evidence adduced at trial did not amount to clear and convincing evidence of
                      patient’s desire to cease hydration
                 iv. Due process did not require state to accept substituted judgment of close family
                      members absent substantial proof that their views reflected those of patient.
7.   Incompetent patients: Standards For treatment Decisionmaking, Dresser (161-221)
         a. As Cruzan majority noted, state courts adjudicating cases on life-sustaining treatment
            may draw on several sources of law besides the US Constitution. As Bergstedt courts
            consider non-treatment cases typically invoke common law principles on individual self-
            determination and bodily integrity, as well as the states traditional parens patriae
            authority to protect vulnerable persons from harm. State judges may also turn to state
            constitutions and statutes for guidance on resolving such cases.
         b. Cruzan exemplifies a basic problem arising when third parties must make choices about
            life-sustaining treatment for seriously ill incompetent patients. The legal rules and ethical
            principles governing life-sustaining treatment for competent patients are relatively
            straightforward compared to those governing treatment for incompetent patients.
         c. Although a patient’s prior statements may provide some indication of what a patient
            would choose, such statements may not always be helpful or perhaps even appropriate
            guides for treatment decisionmaking.
         d. In re Conroy
                   i. “We hold that life-sustaining treatment may be withheld or withdrawn from an
                      incompetent patient when it is clear that the particular patient would have
                      refused the treatment under the circumstances involved.”
                  ii. The standard we are enunciating is a subjective one, consistent with the notion
                      that the right that we are seeking to effectuate is a very personal right to control
                      one’s own life.
 iii. The question is not what a reasonable or average person would have chosen to
      do under the circumstances but what the particular patient would have done if
      able to choose for himself.
  iv. The patient may have expressed in one or more ways, an intent not to have life-
      sustaining medical intervention. Such an intent might be embodied in a written
      document or living will stating the person’s desire not to have certain types if
      life sustaining treatment administered under certain circumstances.
   v. It might also be evidenced in an oral directive that the patient gave to a family
      member, friend, or health care provider. It might consist of a durable power of
      attorney or appointment of a proxy authorizing a particular person to make the
      decisions on the patient’s behalf if he is no longer capable of making them for
      himself.
  vi. It might also be deduced from a person’s religious beliefs and the tenets of that
      religion or from the patient’s consistent pattern of conduct with respect to prior
      decisions about his own medical care. Of course, dealing with the matter in
      advance in some sort of thoughtful and explicit way is best for all concerned.
 vii. Although all evidence tending to demonstrate a person’s intent with respect to
      medical treatment will be considered, but this value of this evidence must be
      weighed as to what circumstances surrounded the statement.
            1. In the absence of adequate proof of the patient’s wishes, it is naïve to
                pretend that the right to self determination serves as the basis for
                substituted decisionmaking.
viii. The state also has an interest in incompetents and so there are multiple interests
      to be weighed.
  ix. We therefore hold that life-sustaining treatment may also be withheld or
      withdrawn form a patient if either of two best interests tests- a limited-objective
      or a pure-objective test- is satisfied.
            1. Under the limited-objective test, life-sustaining treatment may be
                withheld or withdrawn form a patient when there is some trustworthy
                evidence that the patient would have refused the treatment, and the
                decision-maker is satisfied that it is clear that the burdens of the
                patient’s continued life with the treatment outweigh the benefits of that
                life for him.
                      a. By this we mean that the patient is suffering and will continue
                          to suffer throughout the expected duration of his life,
                          unavoidable pain, and that the net burdens of his prolonged
                          life markedly outweigh any physical pleasure, emotional
                          enjoyment or intellectual satisfaction that the patient may still
                          be able to derive from life.
                      b. This limited objective standard permits the termination of
                          treatment for a patient who had not unequivocally expressed
                          his desires before becoming incompetent, when it is clear that
                          the treatment in question would merely prolong the patient’s
                          suffering.
                      c. Medical evidence will be essential to establish that the burdens
                          of the treatment to the patient in terms of pain and suffering
                          outweigh the benefits that the patient is experiencing.
                      d. This limited-objective test also requires some trustworthy
                          evidence that the patients would have wanted the treatment
                          terminated. This evidence could take any one or more of the
                          various forms appropriate to prove the patient’s intent under
                          the subjective test. In this limited-objective test, however, less
                          evidence will be needed to be sufficient to satisfy this prong of
                          the limited-objective test.
            2. In the absence of trustworthy evidence, or indeed any evidence at all,
                that the patient would have declined the treatment, life-sustaining
            treatment may still be withheld or withdrawn from a formerly
            competent person if a third, pure-objective test is satisfied.
                 a. Under this test, as under the limited-objective test, the net
                      burdens of the patient’s life with the treatment should clearly
                      and markedly outweigh the benefits that the patient derives
                      from life.
                 b. Further the recurring unavoidable and severe pain of the
                      patient’s life with the treatment should be such that the effect
                      of administering life sustaining treatment would be inhumane.
                 c. Subjective evidence that the patient would not have wanted
                      the treatment is not necessary under this pure-objective
                      standard.
                 d. Nevertheless, even in the context of severe pain, life-
                      sustaining treatment should not be withdrawn from an
                      incompetent patient who had previously expressed a wish to
                      be kept alive in spite of any pain that he might experience.
x. Conroy’s three tests track the major standards courts and legislatures have
   adopted in addressing cases on incompetent patients: (1) the advance directive,
   or subjective standard; (2) the substituted judgment or limited-objective
   standard; and (3) the objective standard, typically referred to as the best interest,
   benefit-burden, or reasonable person standard.
        1. The Subjective Standard
                 a. Conroy expresses the judicial consensus regarding the
                      preferred approach to treatment decisionmaking on behalf of
                      incompetent patients.
                 b. State legislators have also expressed their support for the
                      subjective standard by enacting statutes that explicitly
                      authorize the tow types of advance treatment directives
                      mentioned in Cruzan and Conroy.
                 c. Partly because of the ambiguities inherent in instruction
                      directives, the so-called proxy directive had attracted wide
                      judicial and legislative support.
                 d. Most state statutes require witness signatures on written
                      advance directives and disqualify family members and
                      employees of health care facilities.
                 e. The National Conference of Commissioners on Uniform State
                      Laws and American Bar Association have approved the
                      Uniform Health-Care Decisions Act (UHCDA). This has
                      served as the model for several states on advance directive
                      laws.
                 f. Most state laws will not disallow the use of pain medication
                      through advanced directives. The doctor has a duty to provide
                      comfort care despite an advanced directive to the contrary.
                 g. Typically, individuals may freely revoke their advance
                      directives through any behavior consistent with this intent,
                      including verbally, physical destruction, etc. Such revocation’s
                      are valid without regard to the individual’s competence.
                            i. The UHCDA is more strict and requires the person to
                                sign a written document.
                 h. There are four main problems to advanced directives cited in
                      the text-
                            i. Medical therapies might emerge after a directive is
                                made that significantly alter the prognosis for a
                                condition such as Alzheimer’s.
                   ii. A specific intervention might be rejected in a
                       directive mistakenly because the thought that it was
                       generally unsuccessful (like CPR).
                  iii. The competent person is less capable of judging
                       future best interest than current ones.
                  iv. Safeguards in the health care setting that protect
                       competent patients from harmful treatment choices
                       based on transient depression or feelings of
                       abandonment are absent in the advance treatment
                       decisionmaking process.
         i. A new study says that most patients want their advanced
             directives overridden in certain circumstances (61%).
         j. Another problem with advanced directives is that they have a
             problem with being either too specific (so when the time
             comes they are inapplicable) or not being specific enough (as
             to be almost useless).
         k. Proxy directives are endorsed as a means of avoiding the risk
             that instruction directives will be too narrowly-worded or too
             general to be of assistance in the actual treatment situation.
             Designated proxies can tailor the patient’s formerly stated
             treatment preferences and values to whatever specific
             treatment dilemma emerges.
         l. There is some studies that people do not use advanced
             directives or they are not consulted during the final stages of
             treatment. Further it does not seem that they have any effect
             on health care spending.
         m. Many state statutes invalidate an advance directive if the
             incompetent patient is pregnant. The constitutionality of these
             provisions remains untested.
         n. In medical emergencies, health professionals are legally
             permitted to treat patients without consent. However
             advanced directives mix this up for obvious reasons.
         o. Although 90% of people support advanced directives, fewer
             than 10% have them. The most popular reason people do not
             have them is because their doctor’s have not brought them up.
2.   The Substituted Judgment Standard (limited-objective test)
         a. In re Quinlan the court permitted the permanently
             unconscious patient’s guardian and family to authorize
             withdrawal of life support if their best judgment was that the
             patient herself would choose this outcome. To make this
             judgment, they were to imagine the decision that would
             emerge if the person were miraculously lucid and perceptive
             of her irreversible condition.
         b. Despite the Quinlan’s court endorsement of the substituted
             judgment test, the patient’s guardian and family had little to
             guide them in their attempt to decide as she would. There was
             some evidence of a passing remark, the court said these were
             too remote though.
         c. This reveals a fundamental source of uncertainty with this test:
             what source of evidence is sufficient to indicate a formally
             competent patient would consent to or refuse certain
             treatment?
         d. The answer might include using facts not related to the
             treatment at hand, like lifestyle choices or religion. However,
             substituted judgment omits an element of explicit, deliberate
             choice, thus this standard lacks the firm foundation in rational
     self-determination that supports the advance directive
     approach.
e.   The absence of an explicit choice, together with the
     imprecision of the evidence supporting substituted judgment
     decisionmaking creates unease about the degree to which
     family members, physicians and other third parties may insert
     their own values and concerns into a decision purporting to be
     what the patient would want. Despite this, two cases have
     tackled it-
           i. Superintendent of Belchertown State School v.
               Saikewicz
                   1. The judge found that Joe Saikewicz at the
                       time the matter arose was 77 years old with
                       an IQ of ten and a mental age of about 2
                       years, eight months. He was profoundly
                       mentally retarded. The record also states
                       that he had leukemia, beside this he was in
                       good physical health. He could not
                       communicate besides grunts and gestures.
                   2. It was the opinion of the doctors that he was
                       not aware of the danger to his life because of
                       the leukemia. Because of his condition
                       Saikewicz had lived in State institutions all
                       his life and he resided in the Belchertown
                       State School since early in his life. His two
                       sisters, the only living members of his
                       family, declined to take part in the court
                       matter.
                   3. The question is whether chemotherapy
                       should be delivered or not. The outcome
                       might give him more pain but extend his life
                       shortly. Concluding that the negative
                       factors of treatment exceeded the benefits
                       the judge ordered that therapy not be given
                       to Saikewicz. The judge ordered that
                       everything be done to ease his pain in
                       suffering during this time.
                   4. Saikewicz died at the school before these
                       proceedings began without pain or suffering
                       from an ailment related to his leukemia.
                   5. The question what legal standards govern
                       the decision whether to administer
                       potentially life-prolonging treatment to an
                       incompetent person encompasses two sub-
                       questions. First does a choice exist for the
                       State in regard to an incompetent’s
                       treatment? Second if a choice exist under
                       certain conditions, what consideration enter
                       into the decision making process?
                   6. We think that principles of equality and
                       respect for all individuals require the
                       conclusion that a choice exists. We
                       recognize a general right tin all persons to
                       refuse medical treatment in appropriate
                       circumstances. The recognition of that right
                       must extend to the case of an incompetent as
             well as a competent patient because the
             value of human dignity extends to both.
         7. To protect the incompetent person within its
             power, the State must recognize the dignity
             and worth of such a person and afford to that
             person the same panoply of rights and
             choices it recognizes in competent persons.
             Statistical factors are not indicative of what
             should be decided. Individual choice is
             determined not by the vote of the majority
             but by the complexities of the singular
             situation viewed from the unique
             perspective of the persons called on to make
             the decision.
         8. The trend in law has been to give
             incompetent persons the same rights as
             others. Recognition of this principal may
             require a court to consent to the withholding
             of treatment from an incompetent individual.
         9. This leads us to the question of how the
             right of an incompetent person to decline
             treatment might best be exercised so as to
             give the fullest possible expression to the
             character and circumstances of that
             individual.
         10. In re Quinlan a New Jersey court held that a
             father as guardian could exercise his
             daughter’s right to privacy and have
             artificial life support removed. This gives
             focus to the above problem.
         11. To put the above discussion in perspective,
             we realize that an inquiry into what a
             majority of people would do in
             circumstances that truly were similar
             assumes an objective viewpoint not far
             removed from a reasonable person standard.
             While we recognize the value of this, we
             should make it plain that the primary test is
             subjective in nature, that is the goal is to
             determine with as much accuracy as possible
             the wants and need of the individual
             involved.
         12. Based on all the facts, it is believed that the
             lower court made the correct decision not to
             go through with treatment since the negative
             factors for the individual outweighed any
             perceived benefits.
ii. In re Spring
         1. The temporary guardian of the ward, Earle
             Spring, an incompetent, and the ward’s wife
             petitioned for an order to remove machines
             sustaining the life of the ward.
         2. The ward has been married to his wife for
             55 years and he has been an outdoorsman
             and traveler.
                           3.   His illness began with an injury and now
                                three times a week he most go to the
                                hospital to have a machine treat his body
                                (like an artificial kidney). He will not get
                                better and if he does not get this treatment
                                he will die.
                            4. He no longer can recognize his family and
                                he has mental deterioration. He no longer
                                speaks sense and is disruptive/aggressive at
                                times. Therefore often he is heavily sedated.
                                His dementia is irreversible.
                            5. It is the view of both the wife and son that
                                the ward would requested to be taken off the
                                machine if he were competent.
                            6. A lower court found that the ward should be
                                taken off life support given several
                                considerations including that he lived a
                                robust life, etc.
                            7. The fact that the family was/is very close
                                means that they would probably understand
                                what the ward would want. One thing that
                                goes against this is that the ward, when he
                                was competent did voluntarily go along with
                                the machine dialysis. However, things
                                change and life takes on new meaning after
                                being on a machine for more than 5 years.
                            8. The court found that he should be taken off
                                the machine given the above.
         f. The substituted judgment test also aids in determining whether
             organs should be donated, etc.
         g. In the years after the Quinlan decision, most courts have
             adopted the formula that a patient’s right to choose or right to
             refuse medical treatment survives incompetence. It would be
             more correct to say that incompetent patients retain the right to
             have appropriate decisions made on their individual behalf.
             An appropriate medical decisions is one that is made in the
             patient’s best interest, as opposed to the interest of the
             hospital, the physicians, the legal system, etc.
         h. In both Saikewicz and Spring the courts explicitly disavow any
             notion that the lives of patients with severe retardation or
             dementia are somehow less valuable and worthy of
             preservation than the lives of healthy normal individuals.
3.   Objective treatment Standards
         a. Objective treatment standards incorporate what society
             considers to be reasonable medical choices. Objective
             standards “reflect a societal consensus” or the perspective of a
             reasonable person choosing as most people would choose for
             themselves. Quinlan somewhat follows this test.
         b. Objective standard typically become important when courts
             and surrogate decision makers confront cases in which the
             evidence of an incompetent patient’s former treatment
             preferences is either nonexistent or ambiguous. In such cases,
             decisions makers do not know how the patient’s personal
             perhaps out of the ordinary, values and beliefs would shape
             the treatment choice at hand. Instead the decision must be
             made in light of broader community norms on what constitutes
     appropriate treatment for incompetent person in the patient’s
     situation.
c.   Courts view the objective test as the least preferred method.
d.   In re Storar
            i. A hospital wants to give a blood transfusion to a
               retarded man with terminal cancer. That patient’s
               mother who is his legal guardian refused consent to
               the transfusions because it would prolong his
               discomfort and would be against his wishes if he
               were competent.
           ii. He had been a patient since the age of five. His
               mother lived by and came to visit him everyday. It
               was found that he had cancer and they tried to fix it.
               Unfortunately it was terminal and so he needed blood
               transfusions to live. At this point, after a few weeks
               of transfusions, his mother to back consent.
         iii. He was to die in a few months and did not understand
               what was going on (he had an infant’s mentality).
          iv. He seemed to dislike the transfusions and the medical
               community seemed to say that it would be no use at
               this point.
           v. Since he had the mentality of an infant, usually a
               parent would be allowed to make a choice at this
               point. However, no parent can deny life saving
               medical treatment, here the State’s interest steps in.
          vi. Thus on the record, we have concluded that the
               application for permission to continue the
               transfusions should have been granted. Although we
               understand and respect his mother’s despair, as we
               respect the beliefs of those who oppose transfusions
               on religious grounds, a court should not in the
               circumstances of this case allow an incompetent
               patient to bleed to death because someone, even
               someone as close as a parent, feels that this is best for
               one with an incurable disease.
         vii. The dissent finds that the mother would know the
               best, and should be allowed to decide.
e.   Cruzan v. Harmon (not the supreme court)
            i. This case presents a single issue for resolution: May
               a guardian order that food and water be with held
               from an incompetent ward who is in a persistent
               vegetative state but who is otherwise alive and not
               terminally ill?
           ii. Nancy Cruzan’s guardians invoke her common law
               right to refuse treatment and her constitutional right
               of privacy as basis for their decision to stop feeding
               her.
         iii. Where the patient is not terminally ill, as here, the
               profoundly diminished capacity of the patient and the
               near certainty that threat condition will not change
               leads inevitably to quality of life considerations. The
               argument made here that Nancy will not recover is
               but a thinly veiled statement that her life in its present
               form is not worth living. Yet a diminished quality of
               life does not support a decision to cause death.
                   iv. The state’s relevant interest is in life, both its
                        preservation and its sanctity. Nancy is not dead, her
                        life expectancy is thirty years. Nancy’s care
                        requirements while total and not burdensome to her.
                        The evidence at trial showed that the care provided
                        did not cause Nancy pain. Nor is that care
                        particularly burdensome for her, given that she does
                        not respond to it.
                    v. Finally there is no evidence that Nancy is terminally
                        ill. The quality of her life is severely diminished to
                        be sure. Yet if food and water are supplied she will
                        not die. Given the fact that Nancy is alive and
                        burdens are not extensive we do not believe her right
                        to refuse treatment, whether that right proceeds from
                        a constitutional right or privacy or a common law
                        right to refuse treatment outweighs the immense,
                        clear fact of life in which the State maintains a vital
                        interest.
          f. IN re L.W.
                     i. The issues in this case are whether an incompetent
                        individual in a persistent vegetative state has a right
                        to refuse life sustaining medical treatment and
                        whether a court appointed guardian may exercise that
                        right on the ward’s behalf.
                    ii. We conclude that an incompetent individual in a
                        persistent vegetative state has a constitutionally
                        protected right to refuse unwanted medical treatment,
                        including artificial nutrition and hydration, that a
                        court appointed guardian may consent to withdrawal
                        of such treatment where it is in the best interest of the
                        ward to do so. We stress that this opinion is limited
                        in scope to persons in a persistent vegetative state.
                   iii. This case is the more common judicial position that
                        treatment withdrawal from permanently unconscious
                        patients is permissible under the objective standard.
4.   A fourth approach to end of life decisionmaking for incompetent
     patients merits discussion in its own right even though it is closely
     related to the substituted judgment and objective approaches.
     Numerous states have enacted legislation explicitly permitting specified
     family members to make decisions on behalf of their incompetent
     relatives when there is no formal advance directive to guide decisions
     on life sustaining treatment.
          a. In re Jobes
                     i. In Quinlan we held that a patient’s family members
                        were the proper parties to make substituted medical
                        judgment on her behalf. We make the same
                        determination today. Family members are best
                        qualified to make these decisions because they best
                        know the motives and considerations that would
                        control the patient’s medical decisions.
          b. However, empirical studies show that family members are
               often wrong about what decisions they make for patients.
          c. Another argument against allow family to make decisions has
               to do with distributive justice in which a family member might
               weigh money, etc, in front of the true interests of the patient.
8.   Decisions on Life Sustaining Treatment – CHILDREN AND INFANTS, Dresser (266-299) and
     Schneider and Brinig
         a. Newmark v. Williams
                    i. Colin Newmark, a 3 year old child, is facing death from an aggressive form of
                       cancer. We are presented with a clash of interest between medical science,
                       Colin’s tragic plight, the unquestioned sincerity of his parent’s religious beliefs
                       as Christian Scientists, and the legal right of the State to protect dependent
                       children from perceived neglect when medical treatment is withheld for
                       religious reasons.
                   ii. Law permits the State to take over when a child’s life is in danger, but exempts
                       parents when it is religious based rejection of medical treatment. The parents
                       also claim 1st amendment rights.
                  iii. The court concluded that the child was not neglected and they enjoy a well
                       established legal right to make important decisions for their children. The right
                       is not absolute, but the State has the burden of proving with clear and
                       convincing evidence that intervening is necessary to ensure the safety or health
                       of the child or to protect the public at large.
                  iv. Since the course of medical treatment is risky and has a large chance of failing,
                       we find for the parents.
                   v. There are two basic inquires when a dispute involves chemotherapy treatment
                       over parents’ religious objections. The court must first consider the
                       effectiveness of the treatment and determine the child’s chances of survival with
                       and without the treatment. The court must then consider the nature of the
                       treatments and their effect on the child.
                  vi. The best interests analysis has been used for some time for courts authorizing
                       medical treatment over a parent’s religious objection when the treatment is
                       relatively innocuous in comparison to the dangers of withholding medical care.
                       However, courts are reluctant to authorize medical care over a parents objections
                       when the child is not suffering a life threatening illness.
                 vii. The linchpin in these cases is an evaluation of the risk of the procedure
                       compared to its potential success. This analysis is consistent with the principle
                       that State intervention in the parent child relationship is only justifiable under
                       compelling conditions. The State’s interest in forcing a minor to undergo
                       medical care diminishes as the risk of treatment increase and its benefits
                       decrease.
                viii. The medical treatment in this case only had a best 40% chance of working, and
                       the most likely outcome was the death of the child. No American court, even in
                       the most egregious case has ever authorized the State to remove a child from hi
                       parents and subject him, over parental objection to an invasive regimen of
                       treatment with only a small chance for survival.
         b. Two types of legal proceedings may arise when parents refuse medical treatment for their
             children. As in Newmark state officials may seek legal authority to make treatment
             decisions on the child’s behalf. Alternatively, prosecutors may charge parents with child
             neglect and other criminal violations if a child dies or suffers serious harm because the
             parents failed to seek needed medical care. Most states have enacted legislative
             provisions exempting from prosecution parent’s refusing care on religious grounds.
         c. One of the key questions is what a recognized religion is. Most courts have rejected the
             claim that first amendment rights are being squashed by having the State administered
             treatment to the child.
         d. What about life extending treatment for a child with mental disability. This is the Becker
             case, where a boy who was mentally retarded due to Down syndrome had a heart defect
             which might have killed him. Surgery could expand his life significantly. His parents,
             who had placed him in a residential care facility at birth refused the operation. Citing the
             procedure’s 5-10 percent mortality rate, the court refused to declare Philip Becker a ward
             of the court (so that the surgery could go forward).
         e.   The decision provoked controversy and a married couple that had gotten to know Philip
              Becker asked a court to appoint them as guardians. The court granted this petition on the
              best interest grounds saying that the biological parents had emotionally abandon their
              child. The heart surgery was a success and Philip Becker is alive and well.
         f. Newmark relies on the best interest standard because the advance directive and
              substituted judgment standards are generally inappropriate for minor children. Unless
              patients under eighteen are emancipated or mature minors, the assumption is that they
              lack sufficient value and preference to serve as the basis of treatment choices made on
              their behalf.
         g. There are two legally recognized exceptions to the presumption that minors are
              incompetent to make their own medical treatment decisions.
                     i. The law has considered emancipated minors to be adults for most decision
                        making purposes. With some variation, several statutes and case law define as
                        emancipated adolescents who have married, borne their own children, joined the
                        armed services, established residences apart from their parents, or otherwise
                        acted to achieve independent status.
                    ii. The mature minor is a more recent exception to the legal presumption that
                        persons under the age of majority are incompetent to make their own treatment
                        decisions. This doctrine applies to minors that exhibit the ability to understand
                        the choices they are making.
                             1. There is a limit to this doctrine that if parents disagree with the choice
                                   of the child, then they can weigh their feelings in court.
         h. Many of the most difficult decisions on life-sustaining treatment involve infants born
              with serious physical and mental impairments. As with patients in other age group,
              advances in medical technology have made it possible to extend the lives of many infants
              who previously would not have survived.
         i. During the 70’s controversy brewed over what the correct way to deal with defective
              newborns is. Many argued that the parents should decide whether to forego life
              sustaining treatment for these children.
         j. Infant Doe sparked a new legal controversy when the parents decided to withdrawal
              corrective surgery and intravenous surgery. The hospital tried to stop it in the courts, but
              the parents won. The hospital then tried to appeal to Washington, but the infant died in
              the interim.
9.   Decisions on Life-Sustaining Treatment: Children and Infants – Schneider and Brinig (578-582),
     Heath v. Becker Brief
         a. Heath v. Becker
                     i. Phillip Becker was placed in several facilities that were horribly run and his
                        parents never really took care of him because they thought down on him.
                        Finally a volunteer worker (Heath) saw him every day and worked on teaching
                        him.
                    ii. The Heath’s got in close with him and brought him in as one of their children.
                        He started pre-school, even though he was above that educational, he was not
                        toilet trained yet. The Beckers failed to help prepare him for school and they
                        eventually sent in the consent form for him to attained.
                   iii. After this, he was elevated to a special school where he was supposed to be
                        taught to live as a normal independent adult. He was moved to another school
                        and the Beckers did not care or even think he should be in an educational
                        setting. All the while the Heath’s drove him around and took care of him.
                   iv. The Beckers became upset that Phillip was spending some much time with the
                        Heath’s and so they suspended all his rights in this regard. Philip became upset
                        and detached because he could not see the Heath’s. He suffered severe trauma
                        because of this.
                    v. After the Heath’s tried to file for guardianship, the Becker’s decided to bring
                        him home for a few visits. The parents did not do this very well, and Phil did
                        not like them.
                   vi. Philip needed surgery on a heart problem that he had. Beckers did not allow it.
                vii. Finally the court gave guardianship over to the Heath’s and he has lived with
                     them ever since.
        b. Schneider and Brinig article
10. Health Care Professional’s Liability and the Problem of Assisted Suicide, Dresser 300-312 and
    Compassion in Dying v. Washington
        a. Dresser
                  i. Although legislation and case law give patients and their surrogate decision
                     makers significant freedom to choose against sustaining life, this freedom is not
                     absolute. Court decisions and statutes include restrictions on withholding and
                     withdrawing of life-sustaining treatment, particularly when surrogate decision
                     making is involved.
                 ii. The willingness of health care professionals and facilities to implement
                     decisions by patients or their surrogates is also influenced by the civil and
                     criminal liability rules governing such conduct. Most significantly, patient and
                     surrogate autonomy in end-of-life decisionmaking is limited by criminal laws
                     prohibiting assisted suicide and active euthanasia.
                iii. Additional constraints on patients’ and surrogates’ freedom of choice originate
                     in the personal and professional ethical principles governing health
                     professionals’ conduct.
                          1. Health Care Professional’s liability – Civil liability
                                   a. Though physicians often express concern about potential
                                         malpractice liability for participation in a decision to forgo life
                                         sustaining treatment, the actual risk when the health
                                         professional is acting in good faith is practically nonexistent.
                                   b. At least three facts account for the small number of reported
                                         wrongful death cases based on terminations of life-sustaining
                                         treatment. There are three reasons for this-
                                                i. Physicians in general tend to be conservative about
                                                   implementing decisions to forgo life support.
                                               ii. Physicians typically will not withhold treatment from
                                                   an incompetent patient unless the family agrees.
                                              iii. Existing case law and legislation provide explicit
                                                   immunity from civil and criminal to health care
                                                   providers forgoing treatment as long as the provider
                                                   complies with the relevant legal rules governing
                                                   when treatment may be withheld.
                                   c. Medical professionals have generally been negligent, instead,
                                         for failure to implement a patient’s request to forgo treatment.
                                         A few courts have declared that health care providers may be
                                         liable for administering unwanted life-sustaining treatment.
                                   d. There are problems with this because of claims for ‘wrongful
                                         life’ seems to be a confusing concept.
                          2. Health professional’s Liability – Criminal Liability
                                   a. There has been only one reported case in which a court was
                                         asked to impose criminal liability on health professionals
                                         participating in a decision to forgo life-sustaining treatment.
                                   b. Barber v. Superior Court
                                                i. Patient undergoes surgery that is completed fine, and
                                                   then had a heart-attack in post-op. He was revived
                                                   and put on life support. During the next few days it
                                                   was determined that he was in a continual vegetative
                                                   state and would not recover.
                                               ii. The family was notified an ordered he be taken off
                                                   life support. He lived on and so then they ordered
                                                   him to be removed from nutrition/hydration.
                 iii. Under the circumstances of this case, the wife acted
                      as a surrogate and would have qualified to make this
                      decision. In summary we conclude that the
                      petitioners omission to continue treatment under the
                      circumstance, though intentional and with knowledge
                      that the patient would die, was not an unlawful
                      failure to perform a legal duty.
        c. Barber expresses strong support for family decision making
            and refuses to require either formal legal or court authorization
            for non treatment prior to a decision to forgo disproportionate
            treatment.
        d. Barber adopts an analysis courts commonly invoke to
            distinguish forgoing life-sustaining treatment from ‘active
            euthanasia’ which is considered homicide. The act-omission
            and causation analyses underlie the widely-accepted
            classification of treatment withholding and withdrawal as
            passive euthanasia which is legally permissible in maybe
            circumstances.
        e. Conversely, deaths produced by a lethal injection, medication
            overdose, or other cause entirely unrelated to the incapacities
            produced by the patient’s illness are classified as active
            euthanasia or suicide.
        f. There is one important exception to the rule prohibiting
            clinicians from acting affirmatively to cause death. With
            origins in Roman Catholic moral theology the doctrine of
            double effect holds that it is sometimes permissible to perform
            acts having both good and bad effects. Here, a doctor might
            be attempting to hasten death but use drugs that will try to
            save them normally. Posing as good, but really bad.
        g. Physicians have been prosecuted for mercy killings but rarely
            get convicted. Juries usually let them off.
        h. One of the biggest issues at the end of this decade is whether
            to legalize physician assisted suicide. A majority of the public
            believes that it should be legal.
        i. One of the negatives is that physicians would be seen as death
            deliverers rather than healers. This might break the
            patient/doctor connection. There could be abuse of such a
            system and also less caring for those seriously ill.
3.   Compassion in Dying v. Washington
        a. Three terminally ill patients, four physicians and non-profit
            organization brought suit against the state of Washington
            seeking declaration that statute that prohibited causing or
            aiding another person to commit suicide violated Federal
            Constitution.
        b. All patients were terminally ill and competent. All died before
            the case. The doctors were given standing however to argue
            on.
        c. We now affirm the District Court’s decision and clarify the
            scope of relief. We hold that the ‘or aids’ provision of
            Washington state as applied to the prescription of life-ending
            medication for use by terminally ill competent adult patients
            who wish to hasten their deaths violates the Due Process
            Clause of the 14th Amendment.
        d. The essence of the substantive component of the Due Process
            Claus is to limit the ability of the sate to intrude into the most
                                          important matters of our lives at least without substantial
                                          justification.
                                     e. Our conclusion that there is a liberty interest in determining
                                          the time and manner of one’s death does not mean that there is
                                          a concomitant right to exercise that interest in all
                                          circumstances or to do so free from state regulation. Now
                                          there is a weighing process between the liberty interest of the
                                          individual and that State interest.
                           4. However on cert - On certiorari, the United States Supreme Court
                                reversed. In an opinion by Rehnquist, Ch. J., joined by O'Connor,
                                Scalia, Kennedy, and Thomas, JJ., it was held that the Washington
                                statute did not violate the due process clause--either on the statute's
                                face or as the statute was applied to competent, terminally ill adults
                                who wished to hasten their deaths by obtaining medication prescribed
                                by their physicians--because (1) pursuant to careful formulation of the
                                interest at stake, the question was whether the liberty specially
                                protected by the due process clause included a right to commit suicide
                                which itself included a right to assistance in doing so; (2) an
                                examination of the nation's history, legal traditions, and practices
                                revealed that the asserted right to assistance in committing suicide was
                                not a fundamental liberty interest protected by the due process clause;
                                (3) the asserted right to assistance in committing suicide was not
                                consistent with the Supreme Court's substantive due process line of
                                cases; and (4) the state's assisted suicide ban was at least reasonably
                                related to the promotion and protection of a number of Washington's
                                important and legitimate interests.
11. Limitations on End of Life Decision making and the Problem of Assisted Suicide, Dresser – 353-
    367, Washington v. Glucksberg
        a. Netherlands have doctor assisted suicide rules that seem to work. Doctors must report all
             cases of euthanasia. There are other very strict rules. There are questions of how much
             the law is applied and how good the reporting process is.
        b. The supreme court leaves legalization of doctor assisted suicide to the states. By 1999
             only Oregon had legalized it though.
        c. The Oregon law limitd access to physician-assisted suicide to a relatively small group of
             patients, namely competent adults with predicted life expectancy of six months and the
             physical capacity to self-administer the death-producing medication.
        d. One difference between the Netherlands approach and Oregon is that the Netherlands
             require someone to be in pain, Oregon does not.
        e. Some argue that patients should just be better informed about resisting feeding and
             hydration, and in that way they can control their own fate.
        f. Washington v. Glucksberg
                   i. Basically states can disallow physician assisted suicide.
12. Request for Futile Life Sustaining Treatment, Dresser 368-411
        a.    According to the general rule governing decisions to forgo life-sustaining treatment, the
             patient or surrogate, not the physician, is authorized to decide whether a particular life-
             sustaining intervention’s potential benefits are sufficient to justify its use. In other words,
             physicians cannot unilaterally determine that life-sustaining treatment should be
             administered, based on their own assessment of its risk and anticipated benefits.
             Discussions of futile treatment ask whether, and if so, when, physicians should be
             authorized to withhold information on or deny a patient’s or surrogate’s request for an
             intervention on grounds that it is medically inappropriate.
        b. This would be trying to use CPR when it is impossible to resuscitate someone
             successfully.
        c. Some futility situations involve giving a patient potentially life extending treatment, but
             in a severely compromised state.
d.   Some futility judgments reflect opinions on resource allocation. Since doctor’s have
     stewardship over most of the medical resources available, they make important decisions
     that distribute these. It is reasonable to claim that there are limits on an individual
     patient’s entitlement to specific medical interventions, and that physicians should have no
     duty to provide inappropriate treatment.
e.   To date the predominant view is that physicians should have unilateral authority to forgo
     treatment only when an intervention would be futile in the narrow physiological sense.
     By contrast it is generally agreed that physicians should not have the authority to deny
     requests for life-sustaining interventions if the reasons for the denial involve the patient’s
     quality of life or the costs involved in giving the treatment.
f.   Matter of Baby K
            i. The hospital instituted this action against the family seeking a declaratory
               judgment that it is not required under the Emergency Medical Treatment and
               Active Labor Act to provide treatment other than basic care to a baby with only
               a brain stem. Because the baby was presented to the hospital with respatory
               care, the hospital must continue this care regardless of its futility.
           ii. The mother would not allow the child to go without the help of the machine
               when it had trouble breathing, even thought he hospital recommended it.
               Therefore it was moved to a nursing home. Everytime it had trouble breathing it
               was readmitted to the hospital to get the breathing under control.
          iii. The EMTALA was put into effect because hospitals were trying to dump
               patients on other hospitals without stabilizing their condition. This applies here,
               where the baby must be stabilized with breathing before it is returned to the
               nursing home.
g.   What about ideas of the ‘slow code’ which doctors just do not rush to try to save
     someone that they deem as being a futile effort? Also there is the idea of coercion, which
     doctors may instill when presenting choices to parents, patients, and family based on the
     doctor’s personal feelings concerning the futility of the treatment.
h.   Some say that having more advanced directives and physicians working with the futility
     of treatments in mind, then health care costs would go down. However, the estimated
     savings is small, because the care at the very end of life is expensive proportionately.
i.   Health professionals’ conscientious objections to decisions on life sustaining treatment
            i. Treatment judgments reflect the medical and nursing profession’s general
               agreement that forgoing treatment in such situation accords with professional
               and ethical standards. But not all members of the profession share this view.
               Individual physicians and nurses may have religious and other moral convictions
               to the contrary. According to legal and professional ethics authorities the best
               remedy for such conflicts is to transfer the case to another professional whose
               moral beliefs are consistent with the patients or surrogate’s wishes.
           ii. In re Jobes
                    1. Nancy Jobes got in a car accident in which her fetus was injured. In an
                         operation to remove it, she lost oxygen to her brain and fell into a
                         persistent vegetative state. Her husband and parents requested that the
                         nursing home that housed her remove her feeding and hydration tube.
                         The nursing home refused on moral grounds.
                    2. The trial court found through clear and convincing evidence that
                         removing the feeding tube was the right thing, but that the nursing
                         home was entitled not to participate. It was decided that the tube would
                         have to remain until she was transferred to another facility that could
                         complete the operation. Given the circumstances of this case we
                         disagree and we reverse that portion of the trial court’s order.
                    3. Mrs. Jobe’s family had no reason to believe they were surrendering the
                         right to choose among medical alternatives when they placed her in the
                         nursing home. The nursing home did not inform the Jobes family of
                         this policy toward feeding tubes until it was too late.
                           4.   We do not decide on if they had told the Jobes before hand if this
                                would be permissible. We do decide that he evidence indicates at this
                                point it would be extremely difficult to move Mrs. Jobes to another
                                facility.
                           5. We recognize that our decision will be burdensome for some of the
                                nursing home personnel. Nevertheless, in view of the immense
                                hardship that would fall on Mrs. Jobes and her family if she were
                                forced out of the nursing home, we are compelled to impose on it for
                                her continued care.
                 iii. Another similar case is the one of Beverly Requena who wanted to withhold her
                      feeding. The health provider would not do it. The hospital tried to move her to
                      another facility. When Requena did not take the transfer, the hospital took her
                      to court to compel her to leave. The court found for her on ground that he
                      interest in remaining in the facility that had become her home took priority over
                      those of the hospital personnel opposed to participating in her decision.
       j. Decisionmaking Procedures
                   i. Procedural issues often arise in the course of end of life decisionmaking. One
                      set of questions involves when to ask a court or other authoritative body to
                      determine: 1) a patient’s competency to make treatment decisions; 2) the proper
                      surrogate decision maker for an incompetent patient; or 3) the proper outcome of
                      a request to forgo or continue life-sustaining treatment.
                  ii. The law generally does not require or encourage persons to seek advance
                      judicial approval of their actions.
                 iii. Health care providers have been advised to seek judicial review when the
                      following situations are present:
                           1. interested parties disagree about end of life treatment for a incompetent
                                patient
                           2. a potential surrogate seems to be motivated by financial items
                           3. a surrogate is not being as protective as they should be
                           4. family members disagree
                           5. professionals disagree about care
                 iv. Not all courts take a conservative view on judicial involvement. Some make it
                      mandatory in certain circumstances. This may be true in nursing homes when
                      care is withdrawn.
                  v. The President’s committee on these issues recommends that ethics boards be set
                      up in medical facilities to help figure out these issues. Because of the
                      president’s report it was estimated that about half the hospitals had active ethics
                      committees. The alternative to this is to have an independent ethics consultant
                      that goes to hospitals to resolve these issues.
13. Medical Malpractice and the Regulation of Medicine, Havighurst 923-955
       a. As a subcategory of the law of torts, the law of medical malpractice deals with injuries
            arising out of medical care provided in doctor’s offices, in hospitals or elsewhere.
       b. The system of fault based tort liability has traditionally been credited with securing two
            distinct though generally compatible objectives.
                   i. First, the values of corrective justice and fairness require that losses that have
                      already occurred as a result of careless action should be shifted from the
                      innocent patient-victim to the culpable party.
                  ii. Second the prospect of being sued and having to pay for such losses will serve
                      as a financial and emotional incentive to doctors to provide more careful
                      treatment to their patients in the future.
       c. The tort system is designed to compensate all losses of patient victims injured through the
            fuel of their doctors but in fact it compensates losses of injured patients who cannot
            establish physician culpability. Tort critics charge that this substantive policy accounts
            for two crucial deficiencies of the system as a vehicle for compensatory insurance.
                   i. the most obvious flaw is that some people are really injured but do not win
                      awards
                      ii. Big awards are put out for pain and suffering, etc.
           d.   There is one benefit too that is sometimes overlooked which is deterrence. However,
                large insurance coverage might protect doctors from this.
           e.   There might be over deterrence in the system where doctors waste resources to ensure
                that they will not open themselves up to liability.
           f.   Enterprise liability is placing blame on an entity for any liability matters, because that
                entity (hospital, etc) could then try to change the system, rather than insurance
                companies.
           g.   Collateral source rule hides from juries other forms of income a plaintiff may have
                coming to him because of an injury (so they will not reduce their reward).
           h.   Review page 992
           i.

Iatrogenic Injuries - those arising out of medical treatment

Tort Law for Malpractice:
   Compensation of patients:
       Irony between malpractice insurance to losses to patients and large awards given
       for non pecuniary losses (pain and suffering)

       treatment costs reimbursed without any application of coinsurance deductible

   Administration:
     burdensome to prove doctor’s fault

   Prevention of negligence / Deterrence:
      malpractice doesn’t serve to improve quality of care b/c
          - insurance covers costs not docs directly
          - awards low / high depending on the severity of injury not level of fault
      Even optimal preventative practices have diminishing returns

   Long Run:
      spreads costs for injury
      spreads societal costs of prevention

   Over-Deterrence = Defensive Medicine - unnecessary and inappropriate tests
      overestimate risk of being sued

Harvard Study:
   many fewer malpractice cases then negligent adverse events (10/1)
   most injuries short lived or person was over 70 years old


Carson V. Maurer - Supreme Court of New Hampshire
(New Hampshire) Statute setting forth rigorous standards for malpractice cases
   expert testimony
   2 yr. statute of limitations
   notice of intent to sue 60 days in advance
   limited damages
   established a fee scale for attorneys
   collateral source rule not apply ( gets full recovery from tortfeasor and gets $ from
   other sources such as insurance => this double recovery allowed under rule)

Equal Protection Violation - patients different from other tort victims
   Test: are the classifications reasonable and do they have a fair relation to the object
          of legislation
   Holding: won’t second guess reasonableness of classifications (much leeway)

Constitutionality and Test for reasonable/rational relation to purpose of statute
(Purpose - the containment of medical injury reparations system cost)
   Holding:
       - Statute of Limitations will not begin to run until time when plaintiff discovers
       both the injury AND it’s cause
       - Notice requirement unconstitutional - no reasonable relationship to stated
       purpose, already have service requirements (bureaucratic hurdle)
       - Disallow use of collateral source rule - (no double recovery) results in lower cost
       to docs for insurance and higher costs to public in health insurance
       It is unconstitutional b/c puts greater burden on victim and discriminates to not
       allow for only these people
       - Damage cap for pecuniary loss - It is unconstitutional b/c disc. and not fully
       cover costs to injured party (no quid pro quo here)
       - Allowance for periodic payments to injured until dead, trying to ensure damages
       are used for their intended purpose - It is unconstitutional b/c disc. for health care
       providers b/c saving them much $
       - Limiting attorney’s fees - It is unconstitutional b/c no proof that juries look at
       this when arriving at damages number therefore not contain malpractice costs
       and creates incentive for less attorney’s to do this sort of work


Fein v. Permanente Medical Group - US Supreme (CA)
CA Statute Caps medical malpractice damages at $250,000 for non-economic losses
(pain, inconvenience, other non-pecuniary damages)
Due Process Violation -
Holding: No b/c allows court to increase damages if in line with interests of state
Equal Protection Violation -
Holding: No b/c rational response to increasing malpractice costs (otherwise no one will recover)
Said there is quid pro quo:
Need this to cut back on common law rights
here => preservation of the viable malpractice insurance industry
but other states say there is no specific benefit to injured


Policy
Is the insurance crisis so bad and costs so high for docs. that leg. reform is necessary and
congress must step in?
Should there be caps on recovery of a particular type or total recovery?

Review of Medical Malpractice Doctrine:
State courts can adopt a stricter standard for reviewing the constitutionality of doctrine
“closer scrutiny”
Fed. limited by “means scrutiny” standard - discrimination based on gender or illegitimacy

Jones Case - Idaho
state court trying to determine if there truly is a crisis in the medical malpractice cases to
justify a legislative actions that were taken

Federal Attempts to Reform Malpractice Laws
Because state court attempts fail on constitutional grounds
Need federal gov. to do (is it within their scope) - create more rational and predictable
system of malpractice legislation

Generally attempts are to:
 lessen statute of limitation - AB rules on page 973
   1. 2 years from time of actionable act
   2. 1 year from time of discovery of injury
   3. max is 8 years except for cases of foreign objects left in body or fraudulent concealment
        - respect the state of repose
   4. tolled during continuous treatment
   5. apply equally to adults and minors (but minor’s rep. has until 18th b-day to sue)

   cap damage recovery for 1 type of loss or for total recovery

Roa v. Lodi Medical Group - Supreme Court of CA
Limiting Attorneys’ fees in medical malpractice actions when using a contingency fee
Holding: Constitutional
- claim that law infringes on right of victims to retain counsel to sue to such an extent that
won’t be able to find counsel (cap low)
- defendants can pay market rate and receive competent rep. but plaintiffs limited
- instead claim sliding scale is better - if progressively higher amounts recovered
(otherwise conflict of interest with client)

Paul Weiler - The Impact of Malpractice Legislation
Sloan:
   Effects on premiums paid by docs. -
   mandatory screenings raised these premiums
Danzon:
   Effects on frequency, severity, and total cost of claims -
   Most - no collateral source rule - reduced severity by 50%
   cap on damage awards - reduce severity by 19%
   lowering statute of limitations - reduces claims by 8% per year the limitation was lowered
Sloan:
   Effects on insurer costs -
   Mandatory collateral source rule - 21% reduction
   Cap on non-economic damages - 23% reduction
   cap on total damages - 39% reduction
In General:
    Standards of Liability (using informed consent vs. res ipsa, etc.) - least effective
    Access Rules (statute of limitations, screening req., attorneys fees) - modest impact
    Limits on Damages - most striking results


                              Legal Standards of Care
Generally tort theories applied and no COA based on contractual obligations.
Also, doctor and patient cannot contract to lessen legal duty of care
but can they contract to increase duty of care?

Damages:
  expectancy
  restitution
  *award based on patients’ reliance

In medical malpractice cases  must prove:
    1. dutiful relationship bwtn. doc. and patient
        - Docs. freedom to choose who he’ll contract with
        - If physical for a job - doc./ patient relationship created
        - Duties to third parties - failure to warn or treat patient put another at risk
        - Good Samaritan laws - excuse physicians when acting in emergencies when not
        obligated to act
        - duty of non-disclosure
    2. injury
    3. breach of a legal standard of care (negligence)
    4. causal relationship bwtn. negligence and injury

Duty of Care:
   1. reasonable and ordinary degree of skill and learning
   2. commonly possessed and exercised by others
   3. who are of the same school or system as the defendant
   4. who practice in the same or similar locality
   5. and exercise of the defendant’s good judgment

=> customary practice as defined by expert testimony

Jones v. Poretta - Supreme Court of Michigan
should a jury be instructed that a doctor or surgeon is not a guarantor of results as a part
of the standard jury instructions => court held it was okay here b/c after this statement
gave instructions for duty of care by doc.


                                    Burden of Proof
Proof:
   Expert Testimony - links medical malpractice and scientific knowledge with legal system
   Conspiracy of Silence amongst doctors
       Broken down by Res Ipsa Loquitur - pits all defendant’s against each other by
       shifting burden of proof onto them to prove they weren’t at fault
   Buying experts or choosing partisan experts
   Difficult even for experts to determine based on charts what happened
   Expert Qualifications laid out by some states

Kramer v. Milner - Appellate Court of IL
doctor failed to tell patient to get a breast cancer screening (mammogram) while she was
under his care => patient died
- Doc. said he took other preventative measures like increased visits to check for cancer
- Expert Testimony - not following Am. Cancer Society guidelines violates standard of
care b/c at that time 80%-90% of doctors followed their guidelines
Holding: court considered the compliance rates as evidence of professional conduct standards

Question of Admissibility regarding guidelines, regulations as opposed to statutes or
                           binding regulation
- on the other hand - compliance with a guideline may not shield you from a malpractice action

Maine experiment:
Guidelines could be used as a complete defense for complying physicians
BUT they failure to comply cannot be admitted by plaintiffs


                                      Locality Rule
Hood v. Phillips - Supreme Court of Texas
injuries suffered by patient as a result of a surgery for emphysema that was not medically
accepted - carotid surgery
experts stated this surgery was used by very few doctors and was not beneficial, further it
could be harmful
other experts stated surgery could have beneficial effects
lower court: stated that if a respectable minority of physicians follow then not
malpractice if follow those same procedures
Holding: burden of proof on plaintiff/patient
other possible standards:
   - when reasonable surgeons disagree...
   - when competent medical authority is divided...
   - when considerable number of professionals disagree...
   - would a reasonable and prudent doctor not have done this surgery - this court
   applied

Gates v. Jensen - Supreme Court of Washington

Woman has glaucoma. Court finds that informed consent means that a physician has a
fiduciary responsibility to inform a patient of abnormalities with her body. This applies
to consent to circumstances other than treatment of a diagnosed disease.



Helling v. Carey - similar facts and questions
Broad Holding:
Reasonable prudence may require a standard of care higher than that exercised by the
relevant professional group
    - moving from standard of the profession test to a general reasonably prudent person test
    - the custom will not restrict courts in their determinations of negligence
Court basically forcing a change in the customary practice of medicine
Facts:
   - Pressure tests can be used to detect glaucoma but were only commonly given to people over
   40
   - woman in her 30s complained of bluriness, doc. not giver her tests and she went blind
Specific Holding:
   - Court held that it’s negligence not to administer tests regularly to people under 40
   Factors noted by court (very fact specific decision):
       - glaucoma can blind a person without warning
       - tests inexpensive
       - harmless test
       - blindness irreversible

Shilkret v. Annapolis Emergency Hospital Association - Court of Appeals Maryland
What is the proper standard of care?
Strict locality rule is-
    1. the standard of care exercised by physicians in the defendant’s own community

Similar Locality rule is-
   1. the standard of care observed by physicians of ordinary skill and care in either the
       defendant-physician’s locality or in a similar community

Strict Locality Rule - problems with it:
    1. wall of silence
    2. low standard of care in some smaller communities
Similar Locality Rule still faces #2
Some courts stretch to the “medical neighborhood” - readily accessible information for
appropriate treatment
Justifications for this rule no longer exist - medical school, communication, literature, seminars
Holding: duty of care and skill which is expected of a reasonable, competent practitioner
in the same class to which he belongs, acting in the same or similar circumstances
Basically a national rule.

National Standard for Specialists came next
Trend to abandon locality for general practitioners as well

Hall v. Hilburn - Miss. Court
national competence based duty of care with a resources based caveat (if tech. not available)


                                  Failure to Diagnose
Not a commission of an error but an omission
Courts hesitant in these cases b/c more likely that it’s a judgment call
Managed Care system is giving more credence to these cases - failure to test, time, etc.

How great must the % of lost chance be:
  1. All or nothing approach - must show a better than even chance of avoiding injury
     or death, if prove then get full compensation for whatever injury (not lost chance)
  2. relaxed standard of proof approach - proof that a substantial or significant chance
     of survival or better recovery was lost - once this threshold met, jury determines
     whether causation existed by a preponderance
     (Herskovitis - 14% chance of survival lost -actionable)
  3. any loss of chance approach - no threshold, always apply if any lost chance at all

Proportional Damage approach


                          Liability for Defective Products
Porter v. Rosenburg - 650 So.2d 79, # (4th Dist. 1995) Dist. Court of Appeal of Florida
Porter arguing for strict liability for defective products should include physicians b/c they
profit from its distribution and share in profits, should also share in losses
- breast implants were defective
Strict liability for defective products based on:
    - promote public safety by
    - adequately compensate injured
    - deter further production of defective products
    - distribute the risk of loss
Reasoning for not including doctors:
   - not in business of selling products
   - expertise in treating illnesses
   - not focus of physicians delivery
Holding:
   - if the medical services could not have been rendered without using product
   (necessary to have that product) => strict liability not apply
   - if predominant purpose of physician/patient relationship was for judgment, skill, and
   expertise => strict liability not apply, general malpractice rules apply
   - if however sales and distribution aspect predominate over the services aspect

                                     Blood Products:

Kozup v. Georgetown University - 663 F. Supp. 1048, # (DC 1987) US Dist. Court, DC
Plaintiffs want to apply Strict Liability to AIDS contaminated blood as an abnormally
dangerous product
OR
Classify the Am. Red Cross as selling blood
Holding: NO
    Necessary for patients, great demand
    impossible to screen everyone
    not a sale of goods, providing of a service

Blood Shield Statutes - solves problem by forbidding strict liability for blood (products)
and blood should not be bought and sold, donated blood better

Negligence Standards for Blood
   - if follow customs of care and industry standards - not liable
   - necessary for life saving
   - screening not a part of the standard of care early on

Deterrence Benefits of Negligence
   - courts may not be able to successfully compel the right combination of practices
   using a negligence standard
   (incentives to donors with good records, fewer donors that are paid, test blood in
   several ways)

Deterrence Benefits of Strict Liability - reactions in 1 geographical area based on
Cunningham case (strict liability standard applied)
   blood bank committees
   hepatitis follow-up system
   education for medical staff
   use of single-unit transfusions

Duty of Care for Associations that provide safety guidelines in blood usage
Snyder v. American Association of Blood Banks - liable for negligently failing to
recommend surrogate testing of blood donors
- worry about chilling effect on associations promulgating guidelines


      Standard of Care for Non-Physician Healthcare Professionals
Fein v. Permanente Medical Group
Standard of care is set among the different professions and sometimes duties overlap, here
nurses are also responsible for some examination and diagnosis of a patient (not just docs.)
Generally held to standards of those within your own practice
Expert Testimony by 1 professional for another group of professionals (ex. orthopedics
for podiatrists) - debatable
can do where principles, techniques, methods, practices, or procedures of one branch are
equal to those of another

Alternative Medicine
standard of care:
    1. if licensed by state then held to standard set by experts within that practice group
    2. if not licensed then by conventional medical standards to lay standards
            ALTERNATIVE TO MALPRACTICE LITIGATION

                                     Screening Panels
Designed to evaluate malpractice claims prior to going to court
   - constitutional (further state’s interest in avoiding non-meritorious suits, cure crisis)
      but in some states effects of law held unconstitutional, burdensome to litigants and
      not effective to hold back unmeritorious claims
   - early, authoritative, but non-binding assessment of claims
   - to encourage settlements
   - in some states admissible as evidence in cases, voluntary submission
Currently - repealed or invalidated in most states


                                         Arbitration
Binding Arbitration
Thomas B. Metzloff, Arbitrating Malpractice Disputes: Insights From the Real World,
Duke Law Magazine, Spring 1996, p.7
Binding - can’t go to trial if negative results from this
Non-binding - traditional jury trial still available if plaintiff desires
Offers:
   - more qualified decision makers
   - inability of lay juries to resolve complex medical issues
   - shorter trial time
   - discovery time and evidentiary conflicts lessens b/c less formal of a process
   - lessen emotional toll, private and shorter

Negatives , why not use:
   - arbitrators can ignore some parts of law b/c no formal review process
   - judicial hostility to arbitration
   - statutes did little to promote (restricted when would be enforced)
   - repeat players that are comfortable with outcomes in regular system
   - not change many objectionable qualities of litigation (contingency fees, determining
      damages for pain and suffering, high awards)
   - not a policy priority
   - arbitrators often come to a compromise which does not fully vindicate either side
   - perceived as unfriendly to plaintiffs’ side

Colorado Permanente Medical Group, P.C. v. Evans - 926 P.2d 1218 (1996) - Sup. Ct. of CO
wrongful death and medical malpractice suit - is k clause requiring arbitration enforceable
=> Kaiser required by contract arbitration of any claims brought by the policy holder
Section of Health Care Availability Act (HCAA) requires all contractual arbitration agreements
to be 10 font size in contract, and allows insured to rescind with 90 days of signing
BUT HCAA provision only applies to K’s between healthcare providers and patients
Issue 1: is Kaiser a healthcare provider
Holding: HMOs covered under the Federal Coverage Act and also must comply with HCAA
Issue 2: HCAA is preempted by Federal Arbitration Act
Holding: issue not raised in trial court so off limits now
Dissenting:
HMO is not a healthcare provider - can contract with and employ healthcare providers
under state definition (Kaiser not certified and licensed to deliver healthcare)

Generally
Many state statutes allow private waiver agreements of right to sue
Federal Arbitration Act - arbitration clauses in K’s are valid and enforceable
=> therefore this federal law preempts any state law prohibiting arbitration
but may be able to restrict it in some cases

Madden v. Kaiser Foundation Hospitals - 17 Cal.3d 699, # (1976) - Sup. Ct. of CA
Facts:
   - State Employees Retirement Act delegated the administration of the act to a board
      who had power to contract with different healthcare carriers
   - when state signed on with Kaiser no arbitration requirements
   - in 1971 initiated mandatory and binding arbitration for all claims arising from the
      violation of a legal duty incident to this Agreement and sent mailing to all members
   - patient had her bladder perforated during a hysterectomy
   - later contracted serum hepatitis b/c of this
Issue: did the State Board have implied authority to negotiate binding arbitration as an
         agent for the employees
Holding:
    - arbitration is a reasonable restriction
    - agent as a fiduciary has power to agree to arbitration
    - benefits to choosing arbitration for patient - costs of plans lower overall, speedy
Issue: is this a contract of adhesion such that enforcement would be barred
Holding: this is not a contract of adhesion b/c board had bargaining power and elected to
          represent the employees


                            Contracting out of Liability
Tunkl v. Regents of the University of CA
- hospital presented to all incoming patients a release document clearing them from all
negligent or wrongful acts
- patients had no realistic choice to turn down the agreement and go to another hospital
therefore not valid, no bargaining power with hospital

Emory University v. Porubiansky - 248 Ga. 391, # (1981) - Sup. Ct. of GA
facts:
    - patient had an impacted tooth removed by a doctor employed by a dental clinic
    - her jaw was broken during procedure
    - patient signed an Information Consent form that barred any actions
Holding:
   - an attempt to relieve the clinic its employees and students from a statutory duty of
    care for licensed professionals frustrates the policies of the state as expressed
    through the General Assembly
Reasoning:
   - dentistry is licensed through the state
   - but as a part of a teaching facility can try and limit liability
    but doesn’t allow for an exemption from the duty to exercise reasonable care
   - will allow people to contract as they wish (docs can enter into binding K’s w/ patients)
    unless they are violating public policy and clearly harming public
   - but here strong public policy of state to protect the health of its citizens

Other Options:
- Price Concessions in Doctors’ services in exchange for a liability waiver
- Other forces that would come into play if all malpractice preempted by contracts
 market
 better solutions if all options given to the doctor/patient
 collective vs. individual choice


                             No-Fault = Strict Liability
Sweden and New Zealand have
quality problems addressed in marketplace or by regulatory means

No Fault Compensation - compensate victims w/ xyz problems regardless of cause
vs.
No Fault Liability - shift injury cost from injured person to providers (they can spread out cost)

Deterrence
- remove fault issue from equation b/c expensive
- many unfortunate cases needing $ but not attributable to negligence as legally defined
   but w/ reasonable costs the injuries can still be prevented (incentive to prevent and
   discover problems)

Designated Compensable Events Proposal (DCE)
   cover a pre-determined list of mishaps resulting in injury and leave rest to tort
   liability system, strengths:
   - strong impetus towards prevention
   - quick resolution to claims
   - reduce practices of defensive medicine some
- flexible list

what events are covered?
Issue of Avoidability - if have little control regarding a specific outcome, less likely to
be on the list (issue of fairness)
     Are the benefits of maintaining the opportunity for determining fault worth the
     cost? (presumption of fault shouldn’t be there for all recoveries)
- frequency for therapy induced injuries (iatrogenic) vs. preventable injuries
- should be preventibility through medical knowledge or unexpected

Quality of Care
- the hospital and medical staff will have an incentive to work together to take
preventive actions

who pays?
Hospital - infections
Individual Physicians - if bear primary responsibility for medicine reactions
both will bargain together to prevent all of this from happening

other benefits
- social insurance - spreading of cost
- less victimization feeling among docs
- allow costs to lie with patients if injury is their fault - not following docs. orders, etc.
- administrative simplicity

				
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