Circumstances surrounding the care of patients often present lawyers and their clients with issues that have no clear-cut (much less, easy) answers. A hospital frequently is confronted with the question of "what is the right thing to do" and turns to its lawyers for guidance. Many times, the answer to that question requires a melding of legal, medical, and ethical principles to determine the "best" course of action. This essay presents the perspectives of 3 experienced healthcare attorneys facing the challenging task of advising a hospital in the case of "Mr V."
In the case of Mr V, the legal principles guiding the actions of the hospital are more definite than the ethical and medical issues. If Mr V is clinically (and legally) dead, and the physicians caring for him make that diagnosis, then no further "treatment" is legally warranted. Patients and families do not have legal rights to "consent" to a diagnosis of death, and families have no legal authority to direct medical treatment for their deceased relatives. On the other hand, if the physicians cannot clearly diagnose death, then the care of the patient falls within the legal parameters of withholding/withdrawing life-sustaining or prolonging care, where patient consent and family involvement are pivotal to determining the patient's treatment plan.*
Most states have laws setting forth the legal parameters by which physicians can diagnose death based on the cessation of brain function.+ These laws were enacted in recognition of the fact that relying on cardiac death alone eliminated access to needed organs for transplantation. Many of these state statutes were patterned after the Uniform Determination of Death Act, which provides "[a]n individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards."++
"Although the so-called brain death" statutes permit physicians to diagnose death based on the cessation of brain function, they do not necessarily mandate the diagnosis of death in this case. In the case of Mr V, it appears that the physicians involved in his care differ as to the diagnosis of death. The neurologist, on the one hand, concludes that brain death has occurred, whereas the attending physician disagrees.[S] This is a critical fact to the lawyers. Where this difference of medical opinion exists, the requirements of the state "brain death" statute may not be met, because many statutes require that the diagnosis of death be made consistent with medical standards, and hospital policies often require the concurrence by at least 2 physicians to make the diagnosis. If death cannot be diagnosed consistent with state law and hospital policy, then the physicians should proceed to develop a treatment plan for Mr V consistent with the patient's views to the extent known and communicated by those closest to the patient, his family.[//]
From a legal perspective, the family's religious views that no person can "die" based on the cessation of brain function does not affect the diagnosis itself. Rather, it presents a serious risk management issue because the diagnosis may be challenged later as wrong. If the physicians truly and unanimously conclude that Mr V is dead, the fact that the family may not believe it, whether based on a rational religious belief or not, cannot or should not change the diagnosis. As in all cases, physicians alone diagnose death based on their assessment of clinical and sometimes other factors. In the case of "brain death," confirmatory tests are available to supplement clinical decision making. In a case where family beliefs reject the diagnosis, it would behoove the physicians and hospital to use confirmatory tests to make sure the diagnosis is correct.
Given the family's views and the attending physician's refusal to concur with a diagnosis of death, the healthcare lawyer would probably advise the hospital to challenge the diagnosis of death and to counsel the medical team to proceed under the withholding/withdrawing care parameters. Whether the hospital has 2 or 3 concurring physicians will not eliminate the fact that at least 1 physician does not agree. Without strong medical concurrence, there is a greater risk from the physicians diagnosing death over the objections of the family and the attending physician than not diagnosing death.
Although neither patients nor families have legal consent rights when it comes to the diagnosis of death, in this case the family's sincere religious views should be considered. The nurses and others involved in Mr V's care must communicate with the family every step of the way. If it appears that Mr V is, in fact, dead, the family will need considerable support from the nurses involved in the care, and this is a situation where convening all available hospital resources-medical, nursing, social work, ethics, and pastoral care-in advance of the diagnosis may be important to achieve family acceptance of the outcome. Lawyers should advise facility staff to work with the family in the most compassionate and open way possible. Not only is this the right thing to do, it can also protect a facility from future malpractice suits against the staff and facility, as well as potential complaints to licensing and other regulatory authorities.
Because the medical diagnosis is pivotal to the hospital's legal obligations in this case, if the physicians correctly diagnose that Mr V is dead, it would be legally inappropriate to seek payment for services rendered by the physicians or hospital providing further "care and treatment," including the performance of surgical procedures such as placement of a feeding tube and tracheostomy. Under the requirements of federal and most private insurance programs, care and treatment may qualify for insurance coverage only if it is medically necessary and used for the treatment of injury or illness.[P] "Medical necessity" generally is defined in language similar to the Medicare definition as care or treatment "reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member."# Because there cannot be any hope of treating the injury or improving the functions of a deceased patient's body, medical treatment of a dead patient is, de facto, medically unnecessary, even if it is being provided for the potentially morally justifiable reason of providing comfort to the family who will not accept the diagnosis of death.**
If a patient has been declared dead, billing for further care and treatment likely would violate (at least) the requirement of medical necessity, because the care will not effectuate a positive outcome for the patient. Thus, the hospital would be risking a charge of insurance fraud or violation of the state or federal false claims acts if it billed a third-party payer for treatment provided to Mr V after a clear diagnosis of death has been made.
In summary, the key to resolving the legal dilemma presented to the hospital in the case of Mr V is to focus on the clinical diagnosis to be made by the physicians. The neurologist alone cannot make that clinical diagnosis, as most "brain death" statutes require that the diagnosis be made consistent with industry standards, and many hospital policies require the concurrence of at least 2 physicians as to the diagnosis. Here, the attending physician disagrees. Without a clear diagnosis of death, the law would require the decision making in this case to proceed using the principles of withholding/withdrawing life-sustaining treatment where the patient's view under the circumstances would need to be determined.
All personnel involved with this family must be sensitive not to forget the human element in their work. The ethical and legal responses should be harmonized whenever possible. There are real risk management benefits to all hospital personnel behaving in sensitive and compassionate ways. Numerous studies have demonstrated that malpractice suits are often filed because of lack of sensitivity, perceptions that healthcare providers do not listen or care, or for lack of acknowledging the suffering of patients and their families in difficult times.++ It is important that the nurse manager in charge of the unit caring for this patient work in tandem with the hospital's attorneys in such a situation to sensitively inform the family of the applicable law and the options available.
ACKNOWLEDGMENT
The authors thank Christopher A. Bowles, a Summer Associate in Foley's Boston Office for his assistance in the preparation of this essay.
*The role of the family in cases of withholding/withdrawing treatment drew national attention in the case involving Terry Schiavo where federal and state courts along with the Florida Legislature and Congress became involved in what in many similar cases has been handled as a private matter between the family and physicians. See Schiavo ex rel Schindler v Schiavo, 403 F 3d 1289 (11th Cir 2005); Schiavo ex rel Schindler v Schiavo, 403 F 3d 1223 (11th Cir 2005) (affirming denial of temporary restraining order seeking to restore daughter's life support). Hospitals deal with the issue of withholding/withdrawing life-saving care regularly under well-established legal parameters that generally do not involve courts in the decision-making process. [Context Link]
+See, for examples, Fla Stat [S] 382.009 (West 2007); 755 Ill Comp State 40/10 (West 2007); Or Rev Stat [S] 432.300 (West 2005); R. I. Gen Law [S] 23-4-16 (West 2006); Vt Stat Ann tit 18, [S] 5218 (West 2005). [Context Link]
++Unif Determination of Death Act [S] 1 (1981). [Context Link]
[S]The fact pattern is not clear as to the basis for the attending physician's disagreement with the brain death diagnosis for Mr V. Does he disagree because, as an orthodox Jew, he fundamentally will not recognize cessation of brain function as causing death? Or does he conclude that Mr V is not dead based on his clinical findings, that is, Mr V has not met the definition of brain death? The basis for the attending physician's disagreement with the clinical diagnosis of death should be explored to inform the medical diagnosis. If it is based on religious rather than medical reasoning, it likely would be less supportable. [Context Link]
[//]The legal principles guiding decisions to withhold or withdraw treatment require a determination of what the patient would have wanted under the circumstances presented. In some states, the determination of the patient's views must be established by the heightened standard of "clear and convincing evidence." See In re Michael Martin, 450 Mich 204, 226-27 (1995). Generally, if the patient cannot communicate his wishes, as here, those closest to the patient, usually the family, act as surrogates to inform the medical team of the patient's wishes, and the surrogate and medical team work together to derive an acceptable treatment plan. In this case, there is no information about the patient's wishes. That issue would need to be explored further before the medical treatment plan could be determined. [Context Link]
[P]See, for example, 42 CFR [S] 410.12(a)(3) (2006) (stating that a physician must certify a service as medically necessary as a condition of coverage under Medicare part B); see also Krodel v Bayer Corp, 400 F Supp 2d 345, 347 (D Mass 2005) (describing definition of medical necessity under private health care plan). [Context Link]
#Soc Sec Act [S]1862(a)(1)(A), 42 USCA [S] 1395(y)(a)(1)(A) (West 2007). [Context Link]
**We have not explored whether private insurance programs, respecting their beneficiaries' sincerely held religious beliefs, may write policies that use differing notions of medical necessity and coverage that may permit payment for care provided after brain death but before the termination of cardiac function. Because private insurance benefits are regulated by contract, employers, religious communities, and others could negotiate such contractual arrangements with payers to better satisfy the needs of patients such as Mr V and his family. [Context Link]
++For example, see Hickson GB, et al. Patient complaints and malpractice risk. JAMA. 2002; 287:2951 (finding positive correlation between unsolicited patient complaints and risk management events, including lawsuits, in study of 645 physicians over a 6-year period). See also Rice B. Why some doctors get sued more than others. Med Econ. 2003;80:73 (supporting the findings of the Hickson et al study with anecdotal evidence from medical malpractice attorneys). [Context Link]