Ethical and Legal Issues in the Treatment of Older Adults

Ethical and Legal Issues in the Treatment of

Older AdultsRicardo Perez, DO, JDAssistant Professor of

MedicineUMDNJ-SOM

Ethical and Legal Issues in the Treatment of Older Adults

This Care of the Aging Medical Patient in the Emergency Room (CAMPER) presentation is offered by the Department of Emergency Medicine in coordination with the

New Jersey Institute for Successful Aging.This lecture series is supported by an educational

grant from the Donald W. Reynolds Foundation Aging and Quality of Life program.

An 85 year old female with mild dementia presents in acute on chronic renal failure by EMS without a family member present. The patient is told that she needs emergency hemodialysis or she will die. You ask her for permission to place perm catheter to proceed with the treatment. In terms of medical decision-making for the elderly, which of the following should be done first?

A. Capacity determinationB. Competency hearingC. Contact family-appointed designate of

surviving childrenD. Discuss with Executor of the patient’s WillE. Contact Durable Power of Attorney for Health

Care

An emergency medicine attending and his subordinate emergency medicine resident were on a flight to Las Vegas for an annual medical conference. During the flight, an elderly male began choking on his in-flight meal. After multiple failed attempts of the Heimlich maneuver, the resident uses a small pocket knife to secure a patent surgical airway. Ultimately, the elderly gentleman recovered, but developed an infection at the surgical site. As a result of these actions, which of the following is most likely?

A. The attending physician will assume liability.B. The resident will be charged with Assault.C. The resident will be charged with Battery.D. The resident's actions are protected through an

emergency exception.E. The resident would be liable under the doctrine of

strict liability.

An 80 year old male presents to the ED with paramedics for respiratory distress. He makes it clear that he wants to return home after treatment for his shortness of breath. You assess that he has capacity to make that decision. On exam, he appears quite disheveled. He is unshaven, malodorous, and is covered in feces. Despite this, there is no bodily injury that is apparent. Paramedics noted the home is dirty with multiple pets urinating/defecating in the house. The patient apparently lives with 2 of his children. What is the appropriate next step?

A. Send the patient home with a visiting nurse.B. Contact adult children.C. Contact Adult Protective Services.D. Call the local police.E. Notify the judge on call to appoint emergency

guardianship.

Ethical and Legal Issues in the Treatment of Older Adults

• Medical Ethics• Informed Consent• DNR Orders (Do Not Resuscitate)• Living Wills

Ethical and Legal Issues in the Treatment of Older Adults

• Durable Power of Attorney• Guardianship• Elder Abuse/Neglect• Physician-Assisted Death

Medical Ethics-Principles

• Autonomy: Patient is able to make own decisions

• Beneficence: Is treatment in the best interest of patient

• Nonmaleficence: “Do no harm”

- The law tries to capture the spirit of these principles

- There are times when legal and ethical principles do not coincide

Hypothetical #1

• A 65 year old female is taken to the ED after a head-on MVC

• She is unconscious and has several fractures

• She becomes hypotensive and appears to be in shock

• The physician wants to administer a blood transfusion

• At the same time, a nurse discovers a card that states that patient is a Jehovah’s Witness

What do you do?

Hypothetical #2

• Same patient as previous• She is unconscious and no family is

present• She continues to become profoundly

hypotensive• You notice that the aforementioned card

has no date on it• You also notice that it is not witnessed

and it is written in French

Would you change your mind on treatment?

Informed Consent

• True Story! Malette v. Shulman (1990)• The Court decided in favor of the patient• The Court concluded that the transfusion

was a Battery• Informed Consent was not obtained• Patient autonomy is paramount • In this case, Beneficence and

Nonmaleficence was not as important as the patient’s self-determination

Origin of Informed Consent

• Doctrine was conceived from the intentional tort of “Battery”- “Laying of hands” without permission- “Every human being of adult years and sound

mind has a right to determine what shall be done with his own body…” Judge (later Justice) Cardozo (1914)

• Intentional Tort = No standard of care• Informed Consent = Standard of care

may apply- Usually treated as negligent tort

Torts

Torts

Strict

Negligence

Vicarious

Intentional

Standard of Care

Torts

No Standard of

Care

Standard of Care

Intentional Tort

Res Ipsa Loquitur

Negligence

No Standard of Care

Strict Liability

Fraud/Misrepresentation

Assault & Battery

Intentional Tort (No Standard of Care)

Intentional Tort

Assault & Battery

Informed Consent*

Origin of Informed Consent

• Patient consents to an aortogram. Patient never advised of risks associated with contrast medium. Should s/he have been?

• Salgo v. Leland Stanford, Jr., University Board of Trustees (1957)- Established the Doctrine of Informed Consent- No guidance as to the detail of what comprises

“informed consent”

Elements of Informed Consent

• Case law has determined what constitutes “Informed Consent”

• Elements:- Describe procedure/treatment- Explain risks/benefits- Discuss alternative treatments

• Adequate consent requires that the patient has Capacity

• Capacity = Determined by a physician• Competency = Determined by the courts

Standard of Informed Consent

• Two Standards for Disclosure- Physician-Based- Patient-Based

• Physician-Based- Natanson v. Kline-Amount of disclosure

based on what physicians would disclose given the same circumstances

- Problems Plaintiff has to produce expert testimony Based solely on physician discretion

Standard of Informed Consent

o Patient-Basedo Canterbury v. Spence: Amount of disclosure

determined by what the “reasonable patient” would want to know about the treatmento Expert testimony no longer necessaryo By focusing on patient, court believed that

autonomy/self-determination preservedo Beware! Some states use “subjective”

standard o States have used case law/statutes to pick

one of these standards, or a hybrid of them

Standard of Informed Consent

• Some states with Physician-Based Standard- Delaware- Florida- New York- Nevada

• Some states with Patient-Based Standard- California- New Jersey- Pennsylvania- Texas

• Hybrid States- Kentucky- North Carolina

Presentation of Information

• Modalities- Verbal Presentation- Discussion with physician (preferred)- Written Information - Pamphlets- Video/Internet- Diagrams/Charts

Disclosure of Risks• Should Disclose:

- Severe Risk, Low Probability- Less Severe, Higher Incidence- Risk specific to procedure

• Rule of Thumb: - Death- Serious injury- Limb/Organ Damage- Minor events that happen >5% of the time

• General Risk: - Infection, vascular/neurological injury,

death

DNR Orders

• This is an order given by a physician to not attempt resuscitative protocol for someone in cardiopulmonary distress.

• It can only be written after a physician discusses it with the patient or, if they lack capacity, a patient surrogate.

DNR Orders

• Types of DNR orders/code designations- DNR: Do not resuscitate (No ACLS protocol)- DNI: Do not intubate (No invasive airway

establishment)- Chemical code: Medications only- Full code: All supportive measures

• Remember DNR ≠ Do not treat- Numerous studies show that DNR patients get

less aggressive care and treatment, despite a Presidential Directive to discourage this

Advance Directives

• Criteria for Capacity- Ability to communicate a choice- Understanding relevant information- Appreciate the situation/consequences- Ability to reason about treatment

• What happens when patient does not have capacity?

• Patient Self-Determination Act (1990)- Attempted to improve end-of -life care with

advance directives- In 2005, only 29% of US adults had living wills

Advance Directives

• Types of Advance Directives- Living Will (1st)- Durable Power of Attorney for Health Care

(Next Generation)• Living Will

- Takes effect when patient lacks capacity- Outlines the type of care they would like- Usually addresses: cardiac resuscitation,

ventilator treatment, artificial nutrition, blood products, invasive tests, dialysis, antibiotics

Advance Directives

• Living Will (Problems)- It may not address the therapy that needs to

be instituted- Language can be vague- May not clearly indicate code status

• “Terminal condition”- Legal definition: Will result in death

regardless of treatment- Medical perspective: If not treated, can result

in death- Usually need 2 physicians to agree

Advance Directives

• Durable Power of Attorney for Health Care- Provides for a surrogate to make active

decisions- Patient can still outline what they prefer as far

as treatment modalities- Also called Medical POA, healthcare proxy,

healthcare POA- Regular durable POA-controls only finances

• Guardianship: A person is stripped of all their rights and declared incompetent by the court

Spectrum of Autonomy

Autonomy

Advance Directives

Guardianship

Hypothetical #3

• NH patient comes into the ER. S/he is in florid sepsis, hypotensive, and unconscious. No living will, advance directive, or DNR order. No health care proxy or medical POA.

• Can’t reach family.• Can’t get consent.

What do you do?

Emergency Exception

• Courts allow treatment because it’s presumed that patient would want to live.

• Same patient intubated on the vent. Stable vital signs. Has two peripheral lines for IVF and Abx. You want to put in a central line, just in case pressors are going to be needed. Still can’t reach family.

Do you place the central line?

Emergency Exception

• At that point in time, absolutely not!• The emergency exception to informed

consent can only be used in the preservation of life. NO MORE, NO LESS!

Hypothetical #4

Surgeon is doing an appendectomy on a 76 year old woman. Surgeon notes that patient has an ovarian mass that should be taken out and biopsied. Patient is under anesthesia and no one is available to give consent. The surgeon believes that the mass should be excised.

Can the surgeon perform the extra procedure?

The “Extension Doctrine”

• YES!• Kennedy v. Parrott: North Carolina

Supreme Court held that the surgeon acted in the best interest of the patient and they had the “duty to do what sound medicine dictated.”

• Should be a life-threatening risk• Does not apply:

- Elective cases- When “extension” should be anticipated

Hypothetical #5

A neurosurgeon does not tell a patient that there is a risk of paralysis with a laminectomy. The surgeon believed that the patient really needed the surgery, and did not want scare the patient out of having the procedure.

Can s/he do this?

Therapeutic Privilege

• Say No.• Canterbury v. Spence: The court held that

a physician cannot generalize that a patient would not be able to make an informed decision based on fear of the risk.

• The privilege can only be obtained if it can be proved that an individual patient could not handle that disclosure

• Largely “dictum”• Very hard to prove

Hypothetical #6

A physician starts to explain a procedure, the risks, consequences, etc. The patient states that s/he would rather not know anything about the treatment and trusts that the doctor is making the right decision.

Is the requirement of informed consent satisfied?

Waiver of Consent

• Maybe• The physician should provide at least

enough information, so that the general nature of the treatment is expressed. In that way, the patient can understand what they are forgoing.- For example, state that there are risks

inherent in the treatment. If the patient chooses to not have more information, then informed consent is satisfied.

Hypothetical #7

A 67 y/o female presented to her PCP with complaints of increased abdominal girth. She is very active and has a well balanced diet. Nevertheless, her pants size has increased in the past year. The PCP offers a CT scan to further investigate. The patient refuses because she does not want to be exposed to radiation just because she has “gained a little weight”. The PCP does not discuss the issue any further. One year later, the patient presents to ED with intense abdominal pain/ascites. A CT reveals peritoneal carcinomatosis.

Is the PCP liable for failure of informed consent?

Informed Refusal

• Absolutely!• Truman v. Thomas: In 1980, the CA

Supreme Court developed the principle of informed refusal

• The patient should be told the risks/consequences of refusing treatment.- For example, a patient leaving the hospital

AMA (against medical advice)

Hypothetical #8

NH patient comes into the ER. S/he is in florid sepsis (again), hypotensive, and unconscious. Still no living will, advance directive, or DNR order. No health care proxy or medical POA. This time, a relative is in the ED. They do not want anything done. You are not sure if the rest of the family would agree with this.

Do you accept their refusal of treatment?OR

Do you continue with treatment?

Informed Refusal

• You are stuck!• Treatment can be given, but you should

express the urgency of medical care to the relative. If possible, get confirmation of this from another physician, or ethics board.

• If you decide to accept the refusal of treatment, be sure to document that the relative was informed of the risks/consequences.

Hypothetical #9

• 85 y/o male was brought into the ED for severe pain

• He was diagnosed with multiple compression fractures

• It was suspected that he might have advanced lung cancer

• Patient suffered severe pain (8-10 range), he was only given PO Vicodin prn

• His pain meds were not changed for five days

Is the physician liable?

Elder Abuse

• Bergman v. Chin (1999)• The Court ruled that the physician’s lack

of action was egregious• The jury ruled that this was an example of

elder abuse• Damages were $1.5 million!

Hypothetical #10

An 80 y/o demented male presents to ED with paramedics for respiratory distress. On exam, he appears quite disheveled. He is unshaven, malodorous, and is covered in feces. Despite this, there is no bodily injury that is apparent. Paramedics noted the home is dirty with multiple pets urinating/defecating in the house. The patient apparently lives with 2 of his children.

Should this be reported to Adult Protective Services?

Elder Neglect/Abuse

• Yes!• Adult Protective Services stated that

about 30% of their reports were based on abuse, 70% on neglect

• Neglect is highly underreported!• New York-one in 23.5 abuse cases

reported- Financial abuse: One in 44- For neglect: One in 57!

Resources

• Advance Directives for Health Care (NJ)- http://www.state.nj.us/health/healthfacilities/d

ocuments/ltc/advance_directives.pdf- http://www.lsnjlaw.org/english/healthcare/livin

gwills/advancedirectives/

References

1. American College of Legal Medicine Textbook Committee. Legal Medicine, 7th ed. Philadelphia, PA: Mosby-Elsevier, 2007:165-173.

2. Malette v. Shulman, 630. R. 2d, 243, 720. R. 2d, 417 (OCA).

3. Supra Note 1, 337.4. Schoendorf v. Society of New York

Hospital, 1914, 105 N.E. 92 (N.Y.C.A.).5. Salgo v. Leland Stanford, Jr., Univ. Bd. Of

Trustees, 317 P. 2d 170, 181 (Cal. App. Ct. 1957).

References

6. Supra Note 1, 338.7. Natanson v. Kline, 350 P. 2d 1093 (Kan.

1960).8. Canterbury v. Spence, 464 F. 2d 772

(D.C. Cir. 1972).9. Supra Note 1, 344-345.10. Supra Note 1, 240-241.11. Mirarchi FL. Does a living will equal a

DNR? Are living wills compromising patient safety? J Emerg Med 2007:33(3):299-305.

References

12. Magauran BG. Risk management for the emergency physician: Competency and decision-making capacity, informed consent, and refusal of care against medical advice. Emerg Med Clin N Am 2009;27(4):605-614.

13. Gillick MR. Reversing the code status of advance directives? N Engl J Med 2010;362(13):1239-1240.

14. Supra Note 1, 241.15.Supra Note 11, 300.16. Supra Note 11, 301.17. Supra Note 1, 241.

References

18. Supra Note 1, 560-1.19. Supra Note 1, 339.20. Kennedy v. Parrott, 90 S.E. 2d 754 (N.C.

1956).21. Canterbury, 464 F. 2d at 783.22. Supra Note 1, 339.23. Truman v. Thomas, 611 P. 2d 902 (Cal.

1980).24. Supra Note 1, 341-2.25. Bergman v. Chin, No. H205732-1

(Super. Ct. Alameda Co. Feb. 16, 1999).

References26. Fulmer T, Paveza G, Vandeweerd C, et

al. Neglect assessment in urban emergency departments and confirmation by an expert clinical team. J Gerontol A Biol Sci Med Sci 2005;60(8):1002-1006.

27. Lifespan of Greater Rochester, Inc. Under the Radar: New York State Elder Abuse Prevalence Study Final Report, Self-Reported Prevalence and Documented Case Surveys Final Report. New York, NY: Weill Cornell Medical Center of Cornell University and New York City Department for the Aging, 2011. http://www.lifespan-roch.org/documents/UndertheRadar051211.pdf. Accessed 11/14/11.