Sunday, November 10, 2019
ProPublica ran an in-depth story about a case of mistaken identity and the removal of life support.The Wrong Goodbye covers the story of removal of life-support from a patient, after which the family learns that the patient was not in fact their relative. The must-read story offers examples of how and why mis-identification of patients may occur. After writing about the facts and both families, the story turns to the litigation.
“The defendants negligently misinformed the plaintiff that her brother ... was admitted to the hospital in an unconscious state. The defendants negligently misinformed the plaintiff that her brother had died on July 29, 2018. As a result of the defendant’s misinformation and negligent conduct the plaintiff has suffered severe emotional harm and injuries.”
[The hospital] ... did not deny the mix-up, but argued it was not liable for any damages because no member of the Williams family ... had actually been a patient at the hospital. The hospital asked a judge to dismiss the case.
[The] lawsuit was reported in a daily story inside the New York Post on Jan. 27, 2019. It did not report the identity of the person taken off life support, but the story was reproduced on a slew of news websites.
[The widow] found the article on her Facebook feed. It had been aggregated on a website called Dearly.com. She eventually realized the story involved [her husband's] death, that he was the unidentified dead man in the article. Months into her efforts to figure out the details of her husband’s death, she saw in [the attorney], who’d been quoted in the article, someone who might help. Maybe [the attorney] would represent her, too.
She met [the attorney] in his Brooklyn office. He was quite certain she had a case. He was less certain he could represent both families. He arranged for her to call [a member of the other family] to see if everyone was comfortable with the idea....
When the conversation was over, [the attorney] was representing both families.
The article ponders the oversight from the law and various state and federal agencies and the impact this has had on the families. In the epilogue to the article, we are updated
More than a year after her husband’s death [the decedent's spouse] feels deeply frustrated, and increasingly doubtful that her husband’s death will ever be fully explained or that anyone will ever be held accountable. The police have all but stopped speaking to her. [The hospital] seems to have been cleared by the Health Department.
[The widow's] remaining chance at what she wants — a full explanation and punishment if warranted — appears to rest with ... the lawyer....
This summer, a judge in the Bronx rejected [the hospital's] motion to dismiss [the] lawsuit. [The attorney] is eager to start collecting more material in discovery.
. . ..
Read this article, realizing the story has not yet ended. It provides an important teaching point for us with our students.
Wednesday, September 18, 2019
Do you have your estate planning documents done? Made funeral arrangements? Think you have everything covered? Well, did you make a "when I die file?" According to an article in Time magazine, Why You Need to Make a 'When I Die' File—Before It's Too Late this file is likely
the single most important thing you do before you depart. It may sound morbid, but creating a findable file, binder, cloud-based drive, or even shoebox where you store estate documents and meaningful personal effects will save your loved ones incalculable time, money, and suffering. Plus, there’s a lot of imagination you can bring to bear that will give your When I Die file a deeper purpose than a list of account numbers. One woman told us she wants to leave her eulogy for husband in the file, so she can pay homage to him even if she goes first.
Without such a file, the process of compiling the information can be time-consuming and emotionally draining for the family. Here are some of the tips from the article
First, call the companies behind your cable, internet, cell phone, club memberships, and anything else that bills for services on an ongoing basis and add your partner or kids to the account as a joint owner. If billing accounts are not in both your and a loved one’s name, your survivors will end up spending hours on the phone and in offices begging bureaucrats to shut them down or convert the accounts to their name so they can manage them. Think of every frustrating call you’ve had with your cell provider, and then multiply it by 10.
Here are a few of the things you’ll put into your “When I Die” file:
□ An advance directive that’s signed (and notarized if necessary)
□ A will and living trust (with certificate of trust)
□ Marriage or divorce certificate(s)
□ Passwords for phone, computer, email, and social media accounts
(We recommend using an online password manager to collect them all, sharing the master password with someone you trust, and then designating emergency contacts within the program who are allowed to gain access.)
□ Instructions for your funeral and final disposition
□ An ethical will
□ Letters to loved ones
There is more information about the file in the book on which this article is based, Beginner’s Guide to the End.
Tuesday, September 17, 2019
Although it's been a bit of time since Colorado 's medical aid-in-dying (MAD) law went into effect, but recent events suggest the topic has not been settled. According to Kaiser Health News, Firing Doctor, Christian Hospital Sets Off National Challenge To Aid-In-Dying Laws
A Christian-run health system in Colorado has fired a veteran doctor who went to court to fight for the right of her patient to use the state’s medical aid-in-dying law, citing religious doctrine that describes “assisted suicide” as “intrinsically evil... [the doctor] had planned to help her patient... end his life at his home [the patient] is eligible to use the state’s law, overwhelmingly approved by Colorado voters in 2016."
This illustrates the clash between faith-based hospitals and state laws. "As hospitals across the country have consolidated, five of the top 10 hospital systems by net patient revenue are associated with the Roman Catholic Church ... [t]hat includes hospitals that did not previously have any religious affiliation. Meanwhile, there are 10 U.S. jurisdictions where aid-in-dying has been approved and public support for the option is increasing."
Stay tuned-this is going to take a while to be resolved through the courts.
Friday, August 16, 2019
The AP has reported that a judge has temporarily enjoined the NJ Medical Aid in Dying law that went into effect a few weeks ago. The hearing is scheduled for October according to the story, New Jersey’s medically assisted suicide law put on hold.
"The order means that New Jersey’s recently enacted measure cannot be enforced by the state attorney general and comes in response to a lawsuit brought by a doctor practicing in the state... [who argues in the lawsuit] that immediate and irreparable damage will probably result in view of the fact that if its enforcement is not immediately enjoined, New Jersey citizens can actually begin dying.” The plaintiff, a doctor, contends "that the law is an affront to religious doctors [and] the law violates constitutional rights as well as common law barring suicide."
Tuesday, August 6, 2019
With the New Jersey law going into effect last week (August 1, 2019), there are now 8 states that allow medical aid in dying, according to a recent New York Times story, Aid in Dying Soon Will be Available to More Americans. Few Will Choose It.
Maine's law becomes effective September 15, 2019, about 5 weeks from now. So with 9 states providing that option, "by October, 22 percent of Americans will live in places where residents with six months or less to live can, in theory, exercise some control over the time and manner of their deaths. (The others: Oregon, Washington, Vermont, Montana, California, Colorado and Hawaii, as well as the District of Columbia.)" Even with these laws in place, there are still issues facing the patients, the story explains. There is "an overly complicated process of requests and waiting periods" as well as the sections of the law that allows doctors to opt-out, so access may be limited.
The article also discusses why there seems to be a "trend" (if you call 9 states a trend) toward changing attitudes regarding medical aid-in-dying:
All these laws require states to track usage and publish statistics. Their reports show that whether a state has six months or 20 years of experience, the proportion of deaths involving aid in dying (also known, to supporters’ distaste, as physician-assisted suicide) remains tiny, a fraction of a percentage point.
California, for example, in 2017 received the mandated state documents for just 632 people who’d made the necessary two verbal requests to a physician, after which 241 doctors wrote prescriptions for 577 patients. More than 269,000 Californians in all died that year.
With such data showing no slippery slope toward widespread use or abuse, “a lot of the hypothetical claims our opponents made no longer carry so much weight with lawmakers,” said Kim Callinan, chief executive of Compassion & Choices.
There is even a change within the health care profession re: this issue, but there are still opponents to it. Even those who support it may not use it, and the process within the law may provide barriers to patients, according to the article. Safeguards in the laws may be imposing obstacles to some including the waiting period, the 6 month limit and others.
Clearly this is a topic on which we still will see developments. So....stay tuned.
Sunday, August 4, 2019
The law requires two doctors to sign off on the request and that the terminally ill patient be deemed an adult resident of New Jersey who can make such a decision and who voluntarily expresses a wish to die.
It requires patients to request the medication twice and says they must be given a chance to rescind the decision. At least one of the requests must be in writing and signed by two witnesses.
At least one witness cannot be a relative, entitled to any portion of the person's estate, the owner of the health care facility where the patient is getting treatment or a worker there, or be the patient's doctor.
Under the law, patients must administer the drug to themselves, and his or her attending physician would be required to offer other treatment options, including palliative care.
Thursday, August 1, 2019
The Washington Post reported an updated development for Physician-Aided Dying in Oregon. Oregon removes assisted suicide wait for certain patients explains that the governor signed a bill that allows individuals who have 15 or less days to live to skip the 15 day cooling off period.
Those seeking life-ending medications had to make a verbal request for physician-assisted suicide, wait 15 days and then make a written request. They then had to wait an additional 48 hours before obtaining the prescription.
Under the new amendment, doctors can make exceptions to the waiting periods if the patient is likely to die before completing them.
The article discusses the position of those who opposed the amendment and notes that the number of folks availing themselves of PAD remains low.
The number of people who have taken advantage of Oregon’s law has been relatively small. Since it enacted the nation’s first physician-assisted suicide law in 1997, nearly 1,500 people died from taking life-ending medications prescribed to them by a physician. In 2018, about 46 per every 10,000 deaths could be attributed to the state’s death with dignity law, according to state data.
Wednesday, July 17, 2019
Previously I had blogged about the legal battle over removing life support from Frenchman, Vincent Lambert. The New York Times reported recently on his death, Vincent Lambert, Frenchman at Center of Right-to-Die Case, Dies at 42.
His family and his spouse disagreed on his wishes. "His wife, Rachel Lambert, said that he had clearly stated that he would not wish to live in a vegetative state. His parents argued that ending his life support amounted to the murder of a disabled person. Siblings and other family members took different sides in the dispute." As the article notes, "[e]uthanasia and assisted suicide are illegal in France. But the law allows patients who are terminally ill or injured with no chances of recovery to decide to stop treatments if the measures “appear useless, disproportionate” or if they seem to have no other effect than 'artificially maintaining life.'" An article about the final court decision is available here.
In a related matter, the Judge for the Florida Schiavo case has written a chapter for a book, as explained in this article:
Inside the Terri Schiavo case: Pinellas judge who decided her fate opens up. You should read it.
Friday, June 21, 2019
Kaiser Health News ran an interesting story that doctors aren't always the best at breaking bad news. Never Say ‘Die’: Why So Many Doctors Won’t Break Bad News relates the experiences of one doctor who as a patient, found his doctor unable to give him his terminal diagnosis. With the time he has left, he is teaching med students on how to have the conversation.
Robust research shows that doctors are notoriously bad at delivering life-altering news, said Dr. Anthony Back, an oncologist and palliative care expert at the University of Washington in Seattle....
Up to three-quarters of all patients with serious illness receive news in what researchers call a “suboptimal way,” Back estimated.... “’Suboptimal’ is the term that is least offensive to practicing doctors,” he added.
This lack of information seems puzzling given that patients need info in order to make an informed decision. Why is this happening? For one, "many doctors, especially those who treat cancer and other challenging diseases,'“death is viewed as a failure,'” said one expert quoted in the article. The article covers the needed skills, how they might be taught, and what is being done to help with this issue.
Thursday, June 20, 2019
Maine has paased a law legalizing medical aid in dying. Maine Becomes 8th State to Legalize Assisted Suicide notes that the governor signed the law last week, The votes in both the Maine House and Senate were close. The Maine law is similar to that in effect in several other states.
The Maine Governor "issued an executive order ... calling for the state to swiftly put the law’s protections into place and analyze the law’s impact." As she explained
For all of these concerns as well however, I have also issued Executive Order Number Nine, which requires the Department of Health and Human Services to engage in Emergency Substantive Rulemaking within the next few months.
The broad purposes of this Executive Order will be to provide a high level of protection for those in care and those who shall be in care; to track trends in the utilization of the law; to pursue our responsibility for end of life care; and to avoid the moral and social consequences of a law that in some way might facilitate the taking of life without the full authority of the individual.
Tuesday, June 11, 2019
Maine may be the latest state to pass medical aid-in-dying according to the Washington Post. The article explains the Maine House passed the bill by a one vote margin, Maine could allow terminally ill to get life-ending meds. Two days later, CNN reported that the bill has been sent to the Maine governor, Maine legislature sends bill effectively legalizing assisted suicide to governor. "The legislation, called the "Maine Death with Dignity Act," would allow mentally-competent patients over the age of 18 'to make a request for medication prescribed for the purpose of ending the person's life.'" The vote in the Maine Senate was also close, but not quite as close as in the Maine House, passing the Senate 19-16. The article notes that the bill "states that it does not legalize medically-assisted suicide, though if enacted, it would effectively do so."
Monday, June 10, 2019
The Hastings Center has announced a new and very important research project. Dementia and the Ethics of Choosing When to Die will focus on basic issues surrounding an individual's ability to exercise end of life choices when suffering from dementia. As the announcement explains
As the American population ages and dementia is on the rise, The Hastings Center is embarking on pathbreaking research to explore foundational questions associated with the dementia trajectory and the concerns of persons facing this terminal condition. This new research is made possible by a major grant to The Hastings Center from The Robert W. Wilson Charitable Trust as part of its visionary support for the Center’s research and public engagement on ethical challenges facing aging societies.
During the dementia trajectory, a person experiences progressive impairment of cognitive abilities – including memory, problem-solving, and language – as well as changes in behavior and physiological functions. As cognition deteriorates, a person with dementia will need daily assistance and eventually total care, often in an institutional setting, for several years before physical deterioration progresses to death from pneumonia or another condition associated with severe dementia. There are no effective treatments to cure or halt the progression of dementia. Alzheimer’s disease, the most common form, is the sixth leading cause of death in the U.S. Vascular dementia, the second most common form, may develop following stroke.
In 2018, 5.7 million Americans were living with dementia. An estimated 12 million others will be at high risk for developing dementia over the next 30 years as the baby boom generation lives into their 80s and 90s.
In the U.S., the basic legal right to be free of unwanted treatment is long established. People with decision-making capacity have the right to forgo life-sustaining treatment they do not want. People who lack decision-making capacity have the same right through the use of an advance directive or a surrogate decision-maker. However, this longstanding legal framework and ethical consensus does not fully reflect the situation of a person facing dementia if this person has no medical treatments to refuse. Also, the timeframe in which a terminally ill person with decision-making capacity can request and use medical aid-in-dying (MAID), now legal in nine U.S. jurisdictions, does not correspond to the dementia trajectory.
Through literature review and workshops, a Hastings Center work group will conduct an ethical analysis of end-of-life choices in the context of dementia, identifying areas where further research or policymaking is needed. In exploring these emerging issues, the work group will also consider how the field of bioethics should contribute to research, policy solutions, and public understanding to improve the experiences of living with dementia and caring for people with the condition. Products will include a special report, to be published in 2021.
“Population aging raises profound questions about how a society values the experiences of aging and caregiving,” says Berlinger. A separate Wilson Trust grant will build on a recent Hastings Center special report to support events and publications on how policymakers, practitioners, and the public can promote inclusion and equity for older adults and caregivers. Learn more about the dementia project and the aging societies project.
Monday, May 27, 2019
Dr. Jay Wolfson, who served as the guardian ad litem in the Schiavo case, recently sent me a link to a BBC story about Vincent Lambert. Vincent Lambert: Life support must resume after court reverses ruling explains that after the Paris Appeals Court ruling, doctors had to resume life support for Mr. Lambert, in a vegetative state since an accident in 2008. His spouse supports terminating life support, while his parents oppose it. When reading the article, I couldn't help but notice the similarities to some occurrences in Schiavo.
The dispute has spread beyond the family of Mr. Lambert. "The UN's Committee on the Rights of Persons with Disabilities had called on France to intervene and delay the move to withdraw the life support while they investigated his case further. France's ministry of health said it was not bound by the committee."
Saturday, May 25, 2019
The National Center for State Courts has announced the release of a new guardianship course, Finding the Right Fit: Decision-Making Supports and Guardianship.
According to the press release, this interactive on-line course covers
• How to support friends and loved ones in making their own choices about their health, finances, and lifestyle.
• Legal options, including powers of attorney and advance directives. • How to become a guardian.
• How a guardian can support a person’s decision-making.
• Identifying and understanding the risk of abuse, neglect, and exploitation that comes with any of the above options.
The course takes about 2 hours to complete and you have to create an account to access it. Check it out!
May 25, 2019 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Programs/CLEs, Webinars | Permalink | Comments (0)
Wednesday, March 27, 2019
The NJ legislature has passed a medical aid in dying bill which the Governor of NJ has indicated he will sign. New Jersey approves bill allowing terminally ill patients the right to die reports that the votes were somewhat close, with the NJ House voting 41-33 and the NJ Senate, 21-16. Safeguards similar to the laws in other states for medical aid in dying are included in the NJ legislation. "Two physicians would be required to attest that the person had less than six months to live. The patient would have to ask for the medication three times — twice orally and once in writing — before receiving it. The written request would have to be witnessed by two people, including one who is not a family member, a beneficiary of the patient's will or the attending physician... The patient would then be required to self-administer the medicine, if he or she decides to take it at all." The legislation is available here.
Friday, March 8, 2019
The Baltimore Sun reported that the Maryland House of Delegates has passed a measure to legalize physician-aided dying in Maryland. Maryland House of Delegates approves legalizing medically assisted suicide notes that the bill passed by a close margin and a corresponding bill is pending in the Maryland Senate.The House version contains various protections, including "[t]he patient must be 18 years old, have a terminal illness with a prognosis of less than six months to live and be able to take the drugs by themselves. The patient must request the prescription on three separate occasions, including at least once in private and at least once in writing — provisions meant to prevent patients from being coerced into obtaining the medication." More information about the House bill is available here.
Monday, March 4, 2019
The Law Library Journal has published a comprehensive bibliography on Physician-Aided Dying. Physician-Assisted Death: A Selected Annotated Bibliography, prepared by Alyssa Thurston, who is head of Reference Services at Pepperdine University School of Law Library in Malibu, Calif., provides a comprehensive update on this important topic.
Here is the abstract of the paper. "Physician-assisted death (PAD), which encompasses physician-assisted suicide and physician-administered euthanasia, has long been controversial. However, recent years have seen a trend toward legalizing some form of PAD in the United States and abroad. The author provides an annotated bibliography of sources concerning PAD and the many issues raised by its legalization."
The introduction offers some helpful information for the reader:
¶3 This bibliography compiles selected secondary and primary materials on
PAD. Secondary sources include books, book chapters, law review and law journal
articles, bibliographies, websites, and current awareness materials, and are mostly
limited to publication dates of 2007–2018.10 Many of these materials discuss multiple
issues within the broader topic of PAD, and I have categorized them by subject
based on what I perceive to be their primary themes.
¶4 Most of the included materials focus on the United States, but a number of
sources also discuss other countries, and one section is devoted to international
experiences with PAD. In addition, PAD is often debated alongside other end-oflife
topics, such as withdrawal or refusal of medical treatment,11 palliative care,12
hospice care,13 or the use of advance directives,14 and some of the scholarship listed
in this bibliography concurrently address one or more of these subjects in depth.
Thanks to my colleague, Professor Brooke Bowman, for alerting me to this helpful resource!
Thursday, January 17, 2019
My dear friend and executive director of the ABA Commission on Law and Aging sent me a notice about a part-time employment opportunity for two students. The Coalition to Transform Advanced Care (C-TAC) ("an alliance of 140 organizations whose sole purpose is to ensure that all Americans with advanced illness, especially the sickest and most vulnerable, receive comprehensive, high-quality, person- and family-centered care that is consistent with their goals and values and honors their dignity") has announced two student fellowship opportunities for a project, "two part-time, temporary positions as C-TAC Changemaker Fellows. Fellows will primarily undertake research for programs that align with their interests (policy, family caregiving, health disparities, data/metrics) and will be assigned a C-TAC mentor. Supporting program staff will also be an important opportunity for the Fellows to learn and support projects." Students need to be at least seeking a bachelor's or master's degree and have relevant interests in advocacy, public policy and the political realm. More information-contact Allan Malievsky (AMalievsky@thectac.org) with “C-TAC Changemaker” in the subject line.
Sunday, January 6, 2019
The Hastings Center addressed this in its latest special report, Defining Death: Organ Transplantation and the Fifty-Year Legacy of the Harvard Report on Brain Death. The abstract for the introduction explains:
This special report is published in commemoration of the fiftieth anniversary of the “Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death,” a landmark document that proposed a new way to define death, with implications that advanced the field of organ transplantation. This remarkable success notwithstanding, the concept has raised lasting questions about what it means to be dead. Is death defined in terms of the biological failure of the organism to maintain integrated functioning? Can death be declared on the basis of severe neurological injury even when biological functions remain intact? Is death essentially a social construct that can be defined in different ways, based on human judgment? These issues, and more, are discussed and debated in this report by leading experts in the field, many of whom have been engaged with this topic for decades.
Thursday, December 13, 2018
The New York Times reported last week on psychiatric advance directives in Now Mental Health Patients Can Specify Their Care Before Hallucinations and Voices Overwhelm Them
"[A] psychiatric advance directive, a legal document declaring what treatment he does and doesn’t want. Increasingly, patients, advocates and doctors believe such directives (called PADs) could help transform the mental health system by allowing patients to shape their care even when they lose touch with reality. Hospitals must put them in patients’ medical records and doctors are expected to follow them unless they document that specific preferences aren’t in the patients’ best medical interest."
The article notes that not everyone is in favor of these. For example, "some doctors and hospitals are wary that the documents could tie their hands and discourage treatment they consider warranted. Some worry the directives won’t be updated to reflect medical advances. Others question whether people with serious psychiatric conditions are ever capable of lucidly completing such directives." The article notes that at least 27 states allow for the use of psychiatric advance directives-others may do so as part of the more traditional health care advance directive. The document is seen as an alternative to involuntary commitment.
CMS now requires health care providers to include in their inquiry about health care directives any psychiatric advance directive (see here requirements that hospitals ask if patients have a directive). The directive also allows advance permission by the patient for the health care providers to engage with friends or family, particularly important because during a crisis, the person may "be too unstable or paranoid to give permission." The article gives examples of what might be authorized by the directive, offers suggestions regarding drafting and signing and shares stories of some individuals who have created these directives.
On a side note, the article notes that the directives are referred to as PAD. On an unrelated topic, physician-aided dying is also sometimes shortened to PAD. Make sure your students understand the differences.