Death Panels are Alive

In a major medical center in California a 74-year-old patient who suffered a stroke had been in a coma and on a ventilator for one month. There were a variety of complications and comorbidities. According to his physicians the patient was not in a persistent vegetative state, but in a coma. The physicians recommended that the son and surrogate decision maker, consent to withdrawing the vent and allowing his father to die peacefully. His son was also admonished that if he did not consent he would then have 10 days to get his father out of the hospital or his father would be removed from the ventilator without his consent and allowed to die.

Though the father’s chances of recovery were slim, his son decided to wait to see if his father would slip further, either into a persistent vegetative state or begin to show signs of improvement. The physicians and hospital disagreed with the son and did not feel that he was acting in his father’s best interest.

In California, a hospital has the right to refuse to provide what they believe to be “medically ineffective health care or health care contrary to generally accepted health care standards applicable to the health care provider or institution.”(Probate Code Section 4735). If the hospital refuses to provide further care they must “immediately make all reasonable efforts to assist in the transfer of the patient to another health care provider …” (Probate Code Section 4736).

In response to this threat the son quickly found three skilled nursing facilities willing to take his father. However, they would only do so if he had a tracheostomy, rather than being intubated. The son asked the hospital put in a tracheostomy. Tracheotomies are performed thousands of times a day all over the country, and are generally performed after a patient has been intubated longer than 21 days. Nevertheless, the physicians, with the support of the attorneys for the hospital, refused. By refusing they decided to ignore the hospital’s statutory duty under these circumstances to immediately make “all reasonable efforts to assist in the transfer.” Instead they renewed their threat to the son that the vent would be removed if his father wss not gone from the hospital by the 10th day.

On day 6, of the 10-day inflexible window, a transferee hospital was found that would take the patient albeit intubated. The transferee hospital advised, however, that it would take 3 – 5 days to accomplish the transfer; possibly exceeding the 10-day window by 1-2 days. Accordingly, a repeat demand was made that any order to terminate life sustaining treatment be cancelled pending, the now arranged for, transfer. The request was refused. One physician, however, treating the patient advised the son that the order cannot be cancelled but that it will not be carried out either. It is my viewpoint that this treating physician could not cancel the order because of hospital policy in such circumstances.

The patient was transferred late on the 10th day.

How could this major medical center have handled this better?

They could have followed the law. If a physician or hospital is of the opinion that a surrogate decision maker is not acting in the best interest of the patient, they can ask the court to relieve him or her as the decision maker. (California Probate Code Section 4766). Yet, lawyers for the hospital knew that such a request to the court would require disclosure of the underlying facts, probably including medical records and declarations from the consulting physicians supporting their recommendations. Lawyers for the hospital chose not to bring the actual facts before the court.

So, we are left with the conflict between law and medical decision-making.

It is here that the description of this incident as a “death panel” seems appropriate. Specifically, the hospital lawyers would have to demonstrate that continued life sustaining care was “contrary to generally accepted health care standards” of their hospital and show that the son was not acting in his father’s best interest. Instead of following the law the hospital and its physicians chose to keep things in the dark and resort to repeated and unnecessary cruel threats.

Alternatively, they could have followed the law and “immediately make all reasonable efforts to assist in the transfer” by performing the tracheostomy and enabling the transfer to a skilled nursing facility. This, it seems, would have satisfied the decision of the hospital to have the patient discharged and the son’s decision to allow his father more time until the medical picture became clearer.

Why not meet their legal obligation to bring this matter before the court?

Interestingly, such steadfast positions, such as the ones made by the hospital here, are not the product of hasty and impulsive thinking, but rather well thought out policy. In this instance, the medical center saw fit to secretly declare themselves outside and above the law and empower themselves to make not only medical decisions but legal decisions as well; an arrogant and audacious policy. In doing so they violated their patient’s trust, inflicted significant emotional turmoil on his son and acted contrary to the high standards of professionalism in the practice of medicine.


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  1. Thaddeus Mason Pope June 24, 2014 said: reply

    Can you share any more about this case? I understood many California facilities to still consider such an approach to be too legally risky.

    Also, you write: “They could have followed the law.” You imply that 4766 is the EXCLUSIVE dispute resolution mechanism here. I agree that it is an option. But 4735 and 4736 also appear to be options that the legislature gave providers.

    1. Bernard W Freedman, JD, MPH
      Bernard W Freedman, JD, MPH June 26, 2014 said: reply

      California Probate Code Section 4766 is optional, however, in the case discussed in this post, in which I acted as attorney for the patient and family, I believe it can only be reasonably interpreted as mandatory. Let me explain.
      Indeed, the only option in this statutory scheme that by its terms compels the hospital to act is Probate Code Section 4736.

      4736. A health care provider or health care institution that declines to comply with an individual health care instruction or health care decision shall do all of the following:

      “…(b) Immediately make all reasonable efforts to assist in the transfer of the patient to another health care provider or institution that is willing to comply with the instruction or decision.

      (c) Provide continuing care to the patient until a transfer can be accomplished or until it appears that a transfer cannot be accomplished.”

      The University Medical Center in this case failed to comply with 4736.

      Firstly, rather than “immediately make all reasonable efforts to assist in the transfer” (by doing a tracheostomy to accommodate the skilled nursing facilities who had agreed to take the patient, but only with a tracheostomy) they declared that no tracheostomy would be performed, that the vent would be withdrawn and the patient would be allowed to die in 10 days unless he was gone from the hospital. Secondly, they threatened not to continue care as required by 4736(c) Doing a tracheostomy would be necessary and usual “continued care.” It should be noted that customarily, tracheostomies are generally done after the patient has been intubated for around three weeks in order to avoid complications of long-term intubation and to facilitate “…progression of care in and outside the intensive care unit (ICU)…” * The patient here had been on the vent for approximately one month.

      In failing to follow the mandatory steps set forth in 4736 the hospital placed themselves into a legal dilemma where following the requirements of 4766 was their only legal alternative. Why?

      Under customary statutory interpretation, a statute that affords greater specificity will take precedence over the other related statutes. The clear intent behind this statutory scheme here is to take ultimate care in protecting the life of the patient and thereby permit strict scrutiny of decisions to end a patient’s life.

      So, in this instance, if transfer was not possible (at least within the arbitrarily limitation of the 10 days set by the hospital) the only legal and ethical alternative to the death of the patient was to resort to section 4766 that would require the hospital to petition the court to make a determination that the surrogate was acting contrary to the best interest of the patient, disqualify the surrogate and name a third person to act or name a temporary conservator (4770). Otherwise the legislative intent behind these statutes would be violated.

      Fortunately, a hospital was located who took the patient on the tenth day. But I do not think this kind of conduct will go away soon. Clearer and compulsory statutes will have to be enacted to require, with adequate penalties to motivate adherence to the law, judicial oversight before an unconsented termination of life sustaining treatment.

      *“As soon as the need for prolonged airway access is identified, the tracheostomy should be considered. Generally, this decision can be made within 7–10 days. Bedside techniques allow rapid tracheostomy with low morbidity…. Medical indications for tracheostomy include unrelieved upper-airway… obstruction, need for prolonged mechanical ventilation, airway protection, need for airway access for secretion removal, avoidance of complications from translaryngeal intubation, improvement of patient comfort, facilitating progression of care in and outside the intensive care unit (ICU)…” (Respiratory Care 2005;50(4):483– 487: Indications for and Timing of Tracheostomy)

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