Posts Tagged ‘Massachusetts General Hospital’

Emergency Room Physician Must Heed Patient’s Refusal

MAY 3, 1999 VOLUME 6, NUMBER 44

Catherine Shine was terrified of doctors and hospitals, and with good reason. Ms. Shine had suffered from severe asthma her entire life, but controlled her condition largely through the use of prescription medications. Although she had lived through numerous attacks, they always seemed to follow the same course–rapid onset, followed by rapid remission. She had never been connected to a ventilator, and consistently opposed the use of a breathing tube.

In 1990, Ms. Shine suffered an asthmatic attack while visiting her sister. Although the symptoms began to ease as soon as she used her inhaler, her sister wanted her to go to nearby Massachusetts General Hospital for administration of oxygen. On the condition that she would be treated with oxygen only, Ms. Shine agreed.

Once at the hospital, Ms. Shine was first treated by use of an oxygen mask and medication, which she complained gave her a headache. When she announced that she would leave the hospital, a blood gas test was first administered; the test results indicated that Ms. Shine was “very sick” and the emergency room physician, Dr. Jose Vega, recommended that Ms. Shine be intubated. When she objected, he agreed to continue the oxygen mask instead.

Feeling like her breathing had eased significantly, Ms. Shine decided to leave the hospital. During a moment when the staff left her alone with her sister, the two of them ran toward the emergency room exit. Before they could get out of the hospital, they were forcibly apprehended by a physician and a security guard; Ms. Shine was returned to the emergency room, placed in four-point restraints and, forty-five minutes later, a breathing tube was inserted over her objections.

Although Ms. Shine was released from the hospital the next day, the experience traumatized her. She suffered from nightmares, cried constantly and missed several months of work. She became suspicious of doctors and swore that she would never again go to a hospital.

Two years later, Ms. Shine suffered another severe asthma attack. She refused to seek medical help, and especially to go to the hospital. Only after she became unconscious could her brother call for an ambulance; after two days of hospital treatment, she died.

Ms. Shine’s family brought suit against Dr. Vega, the emergency room physician, for allegedly causing Ms. Shine’s death. If her treatment wishes had been honored during the earlier admission, they argued, she would have been willing to seek treatment later when she needed it.

Dr. Vega responded by arguing that he had no obligation to follow Ms. Shine’s direction during her first admission. She had presented as an emergency patient, he reasoned, and therefore her consent was not required before treatment. Even though she actively objected to the treatment, he believed that he was permitted, even required, to treat her over her objections.

The Massachusetts Supreme Judicial Court disagreed. The patient’s right to refuse treatment, they ruled, exists even in an emergency situation. “[A] competent patient’s refusal to consent to medical treatment cannot be overridden whenever the patient faces a life-threatening situation,” said the judges.

Although consent is not necessary to treat a patient in an emergency, that does not mean that the physician may ignore the patient’s actual objections. The case was returned to the lower court, with instructions to let the jury decide whether Ms. Shine had been capable of refusing consent during the first hospitalization. Shine v. Vega, April 29, 1999.

Health Care Agent Overruled By Temporary Guardian


Elma Mason, a 77-year-old Massachusetts woman, suffered from congestive heart failure, anemia, diabetes, pulmonary hypertension and mild dementia. She was being treated in Massachusetts General Hospital, and her treatment team agreed that she should not be treated aggressively in the event of cardiopulmonary arrest.

Ms. Mason’s son Joseph was actively involved in his mother’s care. In fact, in the view of the hospital, he was too actively involved. Hospital personnel complained that Joseph had disrupted the hospital’s schedule, abused the staff and repeatedly claimed that the staff had neglected and mistreated his mother. The hospital sought to have a disinterested person appointed as guardian for Ms. Mason.

After the appointment of the hospital’s nominee on a temporary basis, the new guardian consented to entry of a “do not resuscitate” order for Ms. Mason. Joseph appealed the guardian’s decision, and produced three different documents, apparently signed by Ms. Mason, naming Joseph as the person to make medical (as well as financial) decisions for her. Joseph argued that the temporary guardian should have no power to make medical decisions in the face of the medical powers of attorney.

The Massachusetts Court of Appeals agreed that the guardian could be permitted to place the “do not resuscitate” order. The court specifically found that the evidence showed Joseph was “incapable of making health care determinations based upon a true assessment of Elma’s best interests.” Even assuming that the health care powers of attorney were valid, the temporary guardian’s decisions would stand. In Re Guardianship of Mason, September 17, 1996.

The Mason case illustrates a common potential for conflict. With the growing prevalence of advance directives generally, and durable health care powers of attorney in particular, what should health care providers do when family members and agents do not appear to be acting in the “best interests” (a phrase admittedly open to interpretation) of the patient? More importantly, what should they do when the family member or agent is making decisions different from those directed in the living will or other advance directive?

Arizona law is very clear. Health care providers are required to comply with the stated wishes of patients (as set out, for instance, in living wills). Surrogates (including both agents and family members) are also required to follow the patient’s wishes. Where surrogates choose not to follow the instructions of the patient, there is provision for a relatively simple and speedy court proceeding to determine the patient’s wishes and direct the surrogate to act accordingly.

Are health care providers required to take every such concern (or dispute) to court? No, but providers should be aware of their ultimate duty to carry out the patient’s wishes regarding treatment. If family members persist in their refusal to act according to an advance directive after counseling, negotiation, involvement of ethics committees and good medicine and social work practice, legal action may be required.

Ms. Mason’s case implies a subtly different question. What should the health care provider do when there is not clear direction from the patient, but the surrogate is acting inappropriately? Of course, disruption and abuse may be in the eyes of the beholder, and health care providers should be slow to try to overrule family wishes. But when there is no clear expression of the patient’s wishes, the treatment team must look to the patient’s “best interests.” If family members are acting contrary to that principle, once again court action may be the only option.

Arizona law on the duties of health care providers to follow surrogates’ instructions can be found at Arizona Revised Statutes ’36-3204.

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