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Trumping Patient Autonomy.

By Chris Rangel MD ⋅ January 31, 2005 ⋅  Email this post ⋅  Print this post ⋅ Post a comment

Patient autonomy trumped by family . . and the lawyers!

I recently came across the story of a case in the hospital where I practice that brought up several ethical issues (Please note; no HIPAA statutes were harmed or violated in the making of this post).

The patient in question (not mine) was elderly and had several advanced conditions including severe chronic obstructive pulmonary disease and inoperable cardiac disease. He had previously stated to his physician that he did not want to be resuscitated in the event he suffered a cardiopulmonary arrest nor be placed on advanced life support if his chances for a meaningful recovery were poor.

The patient was admitted to the hospital with worsening function of his heart and lungs and did not change his “code status” from that stated above. Subsequently his condition worsened and he became unresponsive. While on the verge of death with his blood pressure dropping and his heart rate slowing his family (sons and daughters who were present at bed side) decided to resend his “do not resuscitate” (DNR) status and demanded that the doctors “do everything” to keep him alive. This was done and the patient was aggressively treated and transferred to the ICU however the patient had already suffered neurologic damage as a result of a lack of blood flow to the brain. His prognosis was considered to be extremely poor and this was explained to the family but they continued to demand that everything be done to keep the patient alive.

Because the families demands were in conflict with the patient’s prior wishes (and unrealistic considering the severity of the patient’s medical problems, advanced age, and neurologic damage) the attending physician consulted the hospital ethics committee. On this committee sits the hospital lawyer and after hearing the specifics of the case he basically stated that it would be more prudent to continue to honor the families wishes because the case would be less likely to result in a lawsuit if intensive treatment were continued than if the patient’s wishes were honored and he was taken off of life support.

There are several disturbing issues here. First there is the problem of living wills, end of life decision-making, family expectations, and surrogate decision-making. In the area of the country where I practice (mostly Hispanic) it seems few families have discussed end of life issues with their older family members and living wills are rare. To add to this problem is the fact that, as illustrated in the case above, many surrogate decision makers do not act in the best interests of the patient. In fact, it appears in many cases that they have no concept of the ethical duties of a surrogate decision maker. Usually they act out of pure self-interest; “I don’t want my father/Grandfather to die!” This is understandable but as in this case such a decision often results in extending the pain and suffering of the patient for very little gain.

As if making a decision that will result in the unnecessary suffering of a critically ill/terminal patient is not bad enough, in the case above the decision by the patient’s family directly violated his autonomy (went directly against his wishes not to be resuscitated). Though not documented in a living will, these wishes had been previously clearly communicated to the attending physician (who document this in the chart) and to the family.

In 1993 the Texas legislature passed the Consent to Medical Treatment Act (CMTA) to create a clear hierarchy of who would be able to act as medical decision maker for the patient in the event of incapacitation. CMTA clearly states that “Any medical treatment consented to . . must be based on knowledge of what the patient would desire, if known.” CMTA does not say anything about what should be done if the decisions of the surrogate are clearly in opposition to the patient’s previous wishes or clearly not in the patient’s best interests. Hence we come to the need for an ethics consult.

But what about this clear tendency for physicians and hospitals to directly violate patient autonomy for fear of a lawsuit? This happened to one of my own patients recently! An elderly patient in very poor health who had refused treatment for her heart disease, wanted to be DNR, and left the hospital AMA then showed up in my ER in full blown congestive heart failure and still insisted that she only get “comfort care”.

When she lost consciousness the family (who were the ones who insisted in bringing her to the ER against her wishes) demanded that “everything be done” and so the ER physician initiated a full code and directly violated the patient’s wishes. She was intubated and multiple tubes were inserted into her body. She lingered maybe 2 hours and then her blood pressure dropped and she was shocked several times when her heart went into a fatal rhythm. CPR was performed for about 45 mins before she was pronounced dead.

I don’t blame the ER doc. They are trained to save lives and wouldn’t dare refuse to try and save a patient with the family standing right there asking them to intervene. But both the ER doc and I knew that this patient’s prognosis was very poor and given her wishes not to have any resuscitation the “right” thing to do would have been to honor her wishes and disregard the demands of the family.

The CMTA states that “An attending physician . . is not subject to criminal or civil liability and has not engaged in unprofessional conduct if the medical treatment consented to under this chapter is done in good faith under the consent to medical treatment; and does not constitute a failure to exercise due care in the provision of the medical treatment.” This simply means that a physician cannot be held libel for following the decisions of the surrogate. But where is the clause that protects a physician when they refuse to follow the demands of the surrogate because it clearly conflicts with the autonomy, wishes, and/or the best interests of the patient!?!??

Now I don’t know the odds of actually getting sued in this situation and the likelihood of it proceeding to a decision for the plaintiff is probably very small but in the absence of any protections or legal guidelines what physician wants to take the risk? In short, today’s legal climate makes it more likely that physicians will violate medical ethics such as patient autonomy and the principle of “Primum non nocere” (First, do no harm) all to lessen their chances of being sued. Like the hospital lawyer is reported to have said at the ethics committee meeting, “When is the last time you heard of a physician getting sued for doing everything to try and save the patient’s life?”

A big “thank you” goes out to all you lawyers out there . . your work obviously continues to make this world a better place (please see the definition of sarcasm and the principle of unintended consequences).

Note to patients; The best way to avoid this type of situation where your autonomy is violated and you are put through great pain and suffering in the last few hours, days, or weeks of your life by your moron family members who’s only motivation is to avoid having to go through the sadness of your passing is to have a living will (or Directive to Physicians if you live in Texas) drawn up that clearly states your wishes in as much detail as possible and keep it with you in case you need to go to the hospital.