Posts Tagged ‘medical ethics’

Family Charges Physician With Neglect In Supervision Of Care

JULY 17, 2000 VOLUME 8, NUMBER 3

When a loved one is institutionalized, family members usually do not have the skills and information necessary to closely monitor the quality of care. They usually rely heavily on the advice of the patient’s physician to direct the course of treatment. In those cases where the physician becomes part of the problem, it may be extremely difficult for family members to respond.

Girtha Mack resided in the Covenant Care Nursing and Rehabilitation Center in California. Her attending physician, Dr. Lian Soung, supervised her medical care at Covenant. Ms. Mack’s children were actively involved in her care, and regularly checked with both the nursing home and Dr. Soung.

According to her children, Ms. Mack was left in a bedpan for 13 consecutive hours and developed untreatable Stage III bedsores. Dr. Soung and the nursing home allegedly concealed that fact from the children for weeks, and refused to permit them to inspect the bedsores until the nursing home ombudsman intervened on their behalf.

Dr. Soung opposed hospitalization for Ms. Mack, insisting that the care she was receiving at the nursing home was appropriate. Two months later, Ms. Mack’s condition worsened, and Dr. Soung abruptly abandoned her as a patient. He refused to respond to requests for hospitalization by the nursing home staff. Ms. Mack died a few days later.

California law, like that of Arizona and other states, provides special protection against abuse, neglect or abandonment of elderly or dependent adults. Ms. Mack’s children brought a lawsuit against Dr. Soung, alleging that he had abused and neglected Ms. Mack. They also charged Dr. Soung with intentionally inflicting emotional distress on the family.

Dr. Soung persuaded the trial court to dismiss both complaints against him, and Ms. Mack’s children appealed. The California Court of Appeal agreed that the action for intentional infliction of emotional distress should be dismissed, but returned the case to the lower court for a trial on the neglect charge.

The court noted that the California law on abuse applies to “care custodians” and not physicians. The section of the law dealing with neglect, however, includes health care providers such as physicians.

By using the neglect statute, Ms. Mack’s family apparently hoped to accomplish two things. First, the action would not be governed by rules applied to medical malpractice lawsuits. Second, the possible recovery from Dr. Soung is larger because of the neglect statute’s enhanced penalty provisions. Now the Mack family will be able to pursue their litigation under that neglect statute. Mack v. Soung, May 17, 2000.

Arizona’s law is similar to that in California, but would be even easier for Ms. Mack’s children to apply. It covers “any person who has been employed to provide care” to a “vulnerable” adult. The language of the Arizona statute is unusually broad in a number of ways, including the definition of a “vulnerable” adult (“an individual who is eighteen years of age or older who is unable to protect himself from abuse, neglect or exploitation by others because of a physical or mental impairment”). Like California’s law, the Arizona statute provides for the possibility of punitive damages.

“Informed Consent” Duty Not Satisfied When Doctor Lies


Before undertaking any medical procedure, physicians are required to obtain the consent of the patient (except in some limited circumstances, such as medical emergencies). Under American law, it is not enough to simply get the patient’s consent, however. The consent must be “informed”—in other words, the patient must be given sufficient information to evaluate the physician’s recommendations and intelligently give or withhold consent.

Informed consent requires that the patient be given information about the risk of the proposed treatment, the likelihood of success, the available alternatives and the likely result of taking no action. In fact, informed consent requires the physician to provide all the information a reasonable patient would use to evaluate the proposed treatment.

Cloma Duttry thought she was being a good medical consumer when she asked her doctor questions about a proposed operation. The Pennsylvania woman suffered from esophageal cancer. Dr. Lewis T. Patterson, her physician, recommended surgery. Before giving consent, she asked how experienced Dr. Patterson was with this particular kind of procedure. When she asked him how many times he had performed similar surgery, he assured her that he had done the same kind of operation about once a month over a five-year period. In fact, Dr. Patterson had only performed similar surgery five times in the five years before he operated on Mrs. Duttry.

After the surgery Mrs. Duttry developed complications. The surgical site developed a leak which required emergency surgery; later Mrs. Duttry developed Adult Respiratory Disease Syndrome and was unable to continue to work.

Mrs. Duttry sued Dr. Patterson; since Dr. Patterson withheld important information, she argued, her consent was not “informed,” and Dr. Patterson did not have authority to operate. After a trial, the Pennsylvania trial court disagreed and found in favor of Dr. Patterson.

Mrs. Duttry appealed the verdict. She argued that the doctor’s prior experience is important information. Dr. Patterson, on the other hand, argued that there is no requirement that a doctor disclose his or her familiarity with a specific procedure.

The Pennsylvania Superior Court agreed with Mrs. Duttry. By a 2-1 vote, the judges decided that when a patient asks about her doctor’s experience it indicates that the level of expertise is important to that patient in analyzing her choices.

The dissenting judge, like the lower court, pointed to an earlier Pennsylvania case involving the death of a young man. In that earlier case, the doctor who performed the operation was an alcoholic who was not licensed to practice medicine in Pennsylvania; the court nonetheless refused to require disclosure of those facts, saying that such information is personal to the physician and not “germane to surgical or operative treatment.”

The two-member majority in Ms. Duttry’s case disagreed. They noted that a physician must “advise the patient of those material facts, risks, complications and alternatives to surgery that a reasonable person would consider significant in deciding whether to have the operation.” The mere fact that Mrs. Duttry had asked the question indicated that she thought the Doctor’s experience was a material fact. The case was returned to the trial court so Mrs. Duttry could put on her evidence. Duttry v. Patterson, October 5, 1999.

Oregon Doctor Disciplined For Inadequate Treatment Of Pain


Adequate control of pain, especially at the end of life, is a key issue in modern medical care. Increasingly doctors, nurses, patients, family members and advocates realize that death need not be physically painful. The most recent demonstration of that consensus among medical care providers comes from the Oregon Board of Medical Examiners.

Dr. Paul A. Bilder was disciplined last month by the state Board for failing to provide adequate pain control for six of his patients. This may be the first time an American doctor has ever been disciplined for providing too little medication, rather than too much; disciplinary proceedings for overuse of medication are relatively commonplace in medicine.

Dr. Bilder, a pulmonary disease specialist, agreed to the imposition of disciplinary measures rather than undergo a contested proceeding. He acknowledged that his undertreatment of pain “showed unprofessional or dishonorable conduct and gross or repeated acts of negligence. He will be required to complete a one-year peer-review program, visit a psychiatrist regularly and take a course on physician-patient communication.

According to the Board of Medical Examiners, Dr. Bilder failed to provide adequate pain control for at least six of his patients. Specifically, he:

Treated an elderly man who was dying of cancer and in pain with “substantially inadequate amounts of pain medication,” contrary to a hospice nurse’s request for stronger pain drugs and anti-anxiety medication. He also refused a hospice nurse’s request to give the man a urinary catheter. Dr. Bilder told the board he thought the catheter would cause infection. The patient died of his cancer three weeks later.
Ordered removal of a urinary catheter from a dying and incontinent cancer patient, against the wishes of the patient and family. Dr. Bilder told the hospice nurse to use diapers instead. Dr. Bilder ordered a small fraction of the pain medication the hospice nurse suggested, and Tylenol for high fever. He believed the nurse’s request for additional pain drugs was excessive. The patient died that evening.
Stopped giving sedatives and pain medication to a 35-year-old woman with pulmonary disease while she was on a mechanical ventilator at Mercy Medical Center in Roseburg. He ordered a paralytic agent, which relaxes the breathing muscles to accommodate the breathing tube, without the use of sedatives. (Sedatives are often used to combat panic from having the breathing tube in the throat.)
Refused a nurse’s request to give morphine to treat anxiety in a 63-year-old woman with pulmonary disease and diabetes who was put on a ventilator at Mercy Medical Center because of acute respiratory failure.
Refused morphine or other pain medication for a hospitalized 82-year-old patient with congestive heart failure. The patient told a nurse, “I just can’t breathe, and I’m getting tired.” The patient became increasingly agitated, and his breathing and heart rates increased.
Failed to give a 33-year-old pneumonia patient narcotic painkillers or anxiety medication while installing a breathing tube through the patient’s nose. The medical staff made multiple attempts to get the tube in, causing the patient’s nose to bleed. The staff had to restrain the patient to complete the procedure.

The issue of adequate pain control was raised by a national study, published in 1989, showing that more than half of seriously ill and hospitalized patients die in pain. Recently the debate over physician-assisted suicide has pushed doctors to provide better pain control in hopes that patients will be dissuaded from wanting to end their lives.

Decision To Forego Surgery Also Requires Patient Consent

JULY 26, 1999 VOLUME 7, NUMBER 4

Jean Matthies was eighty-one years old when she fell and broke her hip. She had been living alone in her apartment in Union City, New Jersey, and had been quite independent. She did her own shopping, cooking and housecleaning. But with a fractured hip, she could not even summon help; she lay undiscovered in her apartment for two days. When she was transported to a local hospital emergency room, she was deyhdrated and confused.

Dr. Edward Mastromonaco was the orthopedic surgeon called in on Ms. Matthies’ case. He considered her condition, medical history and x-rays, and decided not to undertake surgery for her broken hip. Instead, he prescribed what he called a “bed rest treatment.” Ms. Matthies was confined to her hospital bed for several days, followed by increasing periods in a chair and being assisted to walk around her hospital room.

There were several reasons Dr. Mastromonaco gave for deciding against the surgical alternative. He later testified that she was elderly, frail and in a weakened condition. She had, forty years earlier, suffered a stroke which left her partially paralyzed on her right side, and made her use her right leg as a “post,” pushing herself forward with her left leg. Besides, she suffered from osteoporosis, and Dr. Mastromonaco decided that her bones might be too porous to hold the surgical screws; if they weakened, she would later require hip replacement surgery.

Dr. Mastromonaco made his decision at least partly on the basis that he thought Ms. Matthies should not continue to live alone. In explaining his position later, he told the court that “I’m not going to give her that leg she wanted. She wanted to live alone, but she couldn’t live alone. . . . I wanted her to be at peace with herself in the confines of professional care, somebody to care for her. She could not live alone.”

Dr. Mastromonaco’s vision of what should happen with Ms. Matthies came to pass precisely as he suggested. After a short period of bed rest her right femur displaced, leaving her right leg shorter than her left. She never regained the ability to walk, and she now lives in a residential care facility.

Ms. Matthies sued Dr. Mastromonaco for medical malpractice, alleging both medical malpractice and a violation of principles of informed consent. She argued that Dr. Mastromonaco should have disclosed the surgical alternative and discussed the choices with her, rather than deciding on the “bed rest treatment” on his own.

Dr. Mastromonaco argued that there is not duty to secure informed consent to a non-invasive medical procedure, and the trial court agreed with him. The New Jersey Court of Appeals and the New Jersey Supreme Court did not, and reversed the award in favor of Dr. Mastromonaco.

“Choosing among medically reasonable treatment alternatives is a shared responsibility of physicians and patients,” wrote the court. “To discharge their responsibilities, patients should provide their physicians with the information necessary for them to make diagnoses and determine courses of treatment. Physicians, in turn, have a duty to evaluate the relevant information and disclose all courses of treatment that are medically reasonable under the circumstances. … [T]he ultimate decision is for the patient.” Dr. Mastromonaco must now show that he discharged his duty to adequately inform Ms. Matthies of her choices, both surgical and non-surgical. Matthies v. Mastromonaco, July 8, 1999.

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.

Nursing Home Costs, Hospital Admissions and Hospice Use

APRIL 29, 1996 VOLUME 3, NUMBER 44

This week, Elder Law Issues reports a number of trends, statistics and individual items which we have been collecting for weeks. None warrants its own Issues article, and yet each is interesting enough to justify mention.

Nursing Home Costs

Figures have been released for the cost of nursing home (and other health care) in 1993. More recent statistics are not yet available.

Nursing home expenses totaled $69.6 billion in 1993. Money for nursing home care came from both private and government sources. Among the latter, Medicaid (including Arizona’s ALTCS program) paid 51.7%, Medicare 6.5% and all other government sources (including the Veteran’s Administration) 4.4%. The remaining (private) sources of nursing home funds consisted mostly of insurance payments (2.5% of the total) and out-of-pocket payments by private individuals, which accounted for 33% of the costs.

These figures reflect an increase in the share paid by private insurance, though it remains a small part of the nursing home financing picture. The government’s share of nursing home expenses (as well as all other medical expenses) continues to increase. Although nursing home figures for 1994 are not yet available, total medical expenses increased by about $50 billion, or just under 6%. Of that increase, government sources accounted for $33 billion, though remaining slightly smaller than the share paid by individuals and insurance companies.

While Medicare pays a small fraction of nursing home costs, the picture is quite different for home care services. Medicare accounted for 38.8% of such payments in 1993, while Medicaid paid only 15.5% and other government programs picked up .5% of home care costs. Private insurance paid another 12.2% of the cost of home care, and patients’ out-of-pocket expenses totaled 20.8%.

Hospital Admissions

According to the American Hospital Association, hospital use by elderly patients increased in the first quarter of last year. Quarterly statistics show that utilization is highest in the first quarter of each year, but that the increase in 1995 over 1994 utilization was about 4%. Nonetheless, the total number of hospital days actually dropped; the average length of stay for elderly patients fell from 8 days to 7.3 days during that time period.

Critics of the efforts to reduce hospital costs in recent years frequently refer to current discharge practices as getting patients out of the hospital “sicker and quicker.” Utilization statistics clearly support the “quicker” part of the formulation, in any event. One result of this trend: defying recent trends, medical costs increased less than the consumer price index.

Hospice Underutilized

According to the National Hospice Organization, hospice services continue to be implemented in a small minority of cases where they would be appropriate. The Organization estimates that in 1994 fewer than 15% of eligible Medicare patients actually enrolled in hospice.

Many Medicare recipients are unaware of the terms of the hospice benefit, which is considerably more generous than other Medicare programs. In most circumstances, hospice enrollees pay no co-payments or deductibles, and have all prescription drugs provided. By contrast, Medicare beneficiaries (except those enrolled in Medicare HMOs) usually pay for all their own medications, and 20% of the approved cost of most other outpatient medical treatment.

Because of the perceived underutilization of hospice programs, federal law now requires hospitals and nursing homes to specifically consider hospice benefits at the time of discharge. The new law became effective in November, 1995.

Patient’s Treatment Wishes Usually Ignored, Study Says


A disturbing new study calls into question the very basis for patient’s advance directives. According to researchers, doctors are likely to honor patients’ about treatment options only in about half of all cases.

The $28 million study, funded by the Robert Wood Johnson Foundation and published in the Journal of the American Medical Association, also found that efforts to increase doctors’ understanding of individual patients’ wishes had no positive effect on the problem. While the study did not directly address living wills or durable powers of attorney for health care, the results call into question the value of such directives in the real world.

Researchers interviewed hospital patients at six medical centers around the country to find out whether they would want to be resuscitated in the event of cardiopulmonary arrest. Nearly a third declined CPR, but fully 80% of doctors either misunderstood or ignored their patients’ wishes. The result for half of the patients; although they refused CPR, their hospital records indicated that they were to receive such treatment in the event of an attack.

Even in those cases where doctors correctly understood their patients’ wishes, the delay in securing “no code” orders in medical charts was unreasonably long. The average length of time between the request for a “no code” order and its insertion in medical records varied by facility, but the most prompt hospital averaged 22 days; the least prompt took, on average, 73 days before charting the patient’s wishes.

Perhaps the most disturbing element of the study emerged during its second phase. Researchers utilized specially trained nurses to document the patients’ wishes and estimate their prognoses for doctors (using specially designed computer software). The result of this expensive intervention: no improvement in the rate of compliance with patients’ wishes.

At the same time the study reviewed the circumstances of death for those patients who died in the facilities. Half were found to have died in moderate to severe pain and half were receiving mechanical ventilation for at least eight days at the end of life. Neither result changed after the intervention of the specially trained nurses.

The same JAMA issue included a number of commentaries on these striking study results. Observers suggested that the entire medical system is constructed to promote disregard for patients’ wishes not to be treated. One commentator noted that doctors usually have a financial incentive to treat patients aggressively. Another observed that the best course for patients and their families is to aggressively insist on their preferences.

While the study did not assess the value of advance directives, one conclusion seems inescapable. While doctors may ignore the wishes expressed in a living will, naming an agent for health care decision-making should help produce compliance with patients’ instructions. But no one should assume that doctors will determine and follow patients’ wishes in most cases.

Ethical Disagreement


(From The Wall Street Journal Dec. 15, 1993):

“Hospital-ethics consultants widely disagree about when to end treatment of unconscious patients who are unlikely to recover.

The disagreements come at a time when more and more patients are being kept alive in a ‘persistent vegetative state’ through new medical technologies, and hospitals are increasingly turning to ethics consultants to help doctors and families decide when, and whether, life-support treatment should be ended.

Ellen Fox, who teaches medical ethics at University of Chicago Hospitals, says that despite this growing trend toward ethics consultations, there’s little evidence that they provide acceptable outcomes. Dr. Fox and a colleague, Carol Stocking, therefore decided to test the advice of 118 ethicists attending a professional meeting in 1991.

The two researchers presented the ethicists with the case of a comatose patient with little chance of recovery, along with eight different vignettes detailing such things as whether the patient or family had indicated a preference for keeping the patient alive.

The researchers gave the ethicists only five possible responses to each vignette. But the respondents disagreed widely on all the suggested outcomes except in one straightforward vignette in which both family and patient had at some time strongly indicated that treatment shouldn’t be prolonged.

Dr. Fox says the study suggests that no right advice exists. She says that instead of imposing personal views, ethicists should ‘delicately orchestrate’ an ethical consensus among participants and help reconcile differences.”

Growing Older

According to the U.S. Census Bureau, the United States is growing older more rapidly than previously thought. New projections for the next half-century, updating projections made just a year ago, increase the expected number of over-85-year-olds in 2020 from 6.5 million to 7 million. This “old-old” group numbered only about 3 million in 1990.

The two principal factors cited by the Census Bureau to explain the increase are advances in medical treatment and changing lifestyles. According to the Bureau’s figures, a 65-year-old in 1990 had an additional life expectancy of 17.2 years; in 1993, that number has increased to 17.6 years.

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