The GIRL with the DNR TATTOO

If you are in Minneapolis on November 10, check out "The GIRL with the DNR TATTOO" by Nneka Sederstrom, the head of ethics at Children's Hospitals and Clinics of MN.

Her talk will look at the complexities of autonomous decision making and end of life through the eyes of a young adult expressing her wishes in the form of a tattoo. 

What truly is a patient's right to self-determine? 

Can an advance directive take any form?

Jewish Guide to Practical Medical Decision Making

Check out
this new 368-page
 from Rabbi Jason Weiner: Jewish Guide to Practical
Medical Decision Making.

Due to rapid advances in the medical field, existing books on Jewish medical
ethics are quickly becoming outdated. 
Guide to Practical Medical Decision Making
 seeks to remedy that by
presenting the most contemporary medical information and rabbinic rulings in an
accessible, user-friendly manner. 

Rabbi Weiner addresses a broad range of medical circumstances such as surrogacy
and egg donation, assisted suicide, and end-of-life decision making. Based on
his extensive training and practical familiarity inside a major hospital, Rabbi
Weiner provides clear and concise guidance to facilitate complex
decision-making for the most common medical dilemmas that arise in contemporary

1. Facilitating Shared Decision-Making 

A. Understanding Terminology: Key Concepts to Facilitate
Collaborative Decision-Making

B. Truth-Telling: When Painful Medical Information Should
and Should Not Be Revealed 

C. Mental Illness: Determining Capacity and Proper Treatment
in Accordance with Jewish Law  

2. How Much Treatment? 

A. Risk and Self-Endangerment: Determining the
Appropriateness of Attempting Various Levels of Dangerous Medical Procedures

B. Making Decisions on Behalf of an Incapacitated Patient

C. Pediatrics: Jewish Law and Determining a Child�s Consent
and Treatment 

D. Palliative Care and Hospice in Jewish Law and Thought

3. Prayer  

A. Is Prayer Ever Futile? On the Efficacy of Prayer for
the Terminally Ill 

B. Viduy: Confessional Prayers Prior to Death

4.  At the End of Life

A. Advance Directives and POLST Forms  

B. End-of-Life Decision-Making: DNR, Comfort Measures,
Nutrition/Hydration, and Defining �Terminal� in accordance with Jewish Law

C. Withholding vs. Withdrawing: Deactivating a
Ventilator and Cessation of Dialysis and Cardiac Defibrillators at the End of

D. Case Study: Deactivating a Total Artificial Heart

E. Supporting Patients who Request Physician-Assisted
Suicide: Towards a Nuanced Approach 

Appendix: Triage: Determining Which Patients to
Prioritize in an Emergency According to Jewish Law

5.  After Death 

A. Definition of Death in Jewish Law

B. Jewish Customs at the End of Life and after One Dies

C. Organ Donation 

D. Jewish Guidance on the Loss of a Baby or Fetus

E. Autopsy and Jewish Law 

F. Cremation and Jewish Law

Appendix: Ethical
Issues in the Sale of Organs 

Burial in a Mausoleum and Jewish Law 

6.  Reproductive Questions 

A. Genetic Testing, Disclosure of Results, and PGD 

B. Assisted Reproductive Technology: Fertility Issues,
Artificial Insemination, IVF 

C. Abortion, Pregnancy Reduction, and Stem Cell

D. Surrogacy and Egg Donation

E. Labor and Delivery: Some Jewish Customs and Issues
that Arise upon the Birth of a Baby

Stories from the Front Lines: Confronting Complex Ethical
and Dilemmas

India Supreme Court Declares Right to Privacy

This week, the Supreme Court of India ruled that privacy is a fundamental right.

While not framed as a right to die case, at least one concurring justice observed: "An individual�s rights to refuse life prolonging medical treatment or terminate his life is another freedom which fall within the zone of the right of privacy."

Most Healthcare Surrogates Still Doing a BAD, BAD Job

Rohit Devnani

Numerous studies for decades have demonstrated that surrogates fail to make the same healthcare decisions that patients would have made for themselves if they still had capacity.  But a new study in J Gen Intern Med. shows that surrogates are not even trying to perform their job consistent with its defined standards.

In "How Surrogates Decide: A Secondary Data Analysis of Decision-Making Principles Used by the Surrogates of Hospitalized Older Adults" the authors explore the principles that surrogates consider most important when making decisions for older hospitalized patients.  While surrogates considered many factors, they focused more often on patient well-being than on patient preferences, in contravention of our current ethical framework.

Stop Hospital Euthanasia

Stop Hospital Euthanasia is a new volunteer organization led by people who had a loved one euthanized against their loved one's expressed written or verbally stated direction. Its primary goal is to prevent the euthanasia of patients against their will or their parents' will in the case of minor children, particularly in an inpatient hospital situation.

Planned Actions

  • To inform patients and their agents of their rights in regards to doctors and hospitals in individual states and provinces

  • To provide information regarding the importance of having a Power of Attorney for health care, or its equivalent legal document, in any state or province

  • To advise people that it is crucial to appoint a legal representative who: has the authority to make medical decisions if the person is incapable of speaking or making decisions for him/herself; who agrees with his/her medical decisions; and who will, if necessary, stand up against medical authority

  • To identify the legal rights of patients and their agent in regards to doctors and hospital medical decisions pertinent to various states and provinces

  • To provide cases of actual hospital involuntary euthanasia (removing identifying information) for educational purposes, regarding what institutions can do and have done if the patient and his/her agent are not knowledgeable of their rights

  • To provide contacts to other organizations which can provide legal support if the patient or their agent is in an irresolvable dispute with the hospital in resisting being euthanized

  • To provide referrals to grief, guilt and anger counselors about a loved one who was euthanized against their will

  • To raise awareness in peaceful, legal, civil actions to peacefully protest the use of involuntary euthanasia - including that requested when the no-longer-competent person was competent.

Establishing New Rights: A Look at Aid in Dying

Join me in at the University of New Mexico Law School in Albuquerque on September 23 for "Establishing  New Rights: A Look at Aid in Dying."

Erwin Chemerinsky, Dean of the University of California Berkeley School of Law, will provide the keynote address on the history of state constitutions in providing civil rights.

New Mexico Supreme Court Justice Charles W. Daniels will present on the New Mexico Supreme Court�s history of interpreting its constitution to establish civil liberties.

Panels comprised of New Mexico judges and legal experts will discuss the topics of Aid in Dying and the role of state judiciaries.

State legislatures and supreme courts throughout the country are confronting the controversial subject of aid in dying. An emerging issue is the role of the judiciary when the state constitution is vague about civil rights.

The New Mexico Supreme Court was one of the latest to address the issue in Morris v. Brandenburg. The district court�s ruling that physician-assisted dying is a right under the state Constitution was overturned first by the New Mexico Court of Appeals and then in 2016 by the New Mexico Supreme Court. The New Mexico Supreme Court proclaimed that that the matter should be resolved in the executive and legislative branches. This year, the NM Senate rejected a bill that would have allowed physician-assisted dying.

In this Symposium, national scholars and local experts will explore aid in dying from medical and legal perspectives, the background of Morris v. Brandenburg, and how other states have tried or succeeded in legalizing aid in dying.

Nominate this Blog for Best Legal Blog Contest

If you have found this blog useful, please nominate it for The Expert Institute's Best Legal Blog Contest.

From now until September 15th, legal blog fans can nominate their favorite blogs and bloggers for inclusion in the voting round of the competition by completing the form on the bottom of the BLBC page. As with previous years, the nomination process is competitive, meaning the more nominations a blog receives, the more likely it is to be included in the public voting stage of the contest.

The nomination period closes on September 15th at 12:00 am (EDT), after which the nominations will be tallied and the contestants announced. 

The Good Death Society Blog

Final Exit Network launched a blog, yesterday.  It is called The Good Death Society Blog.

The first article is a hefty 1300-word essay about the free speech issue in Minnesota as it relates to the right-to-die and death with dignity.

Faith and Morality and Medical Aid in Dying (Minnesota)

Join Compassion and Choices Minnesota on October 5 for Rev. Dr. Ignacio Castuera

Pastor of Trinity United Methodist Church in

Pomona, California.

Drawing on his experience advocating for California�s End-of-Life Option Act, Rev. Castuera will describe the morality of medical aid in dying in the context of his faith tradition, the role of tolerance for diverse spiritual perspectives, and the personal nature of end-of-life decisions.

Thursday, October 5, 2017

7:00 p.m. (doors open at 6:30)

Centennial United Methodist Church

1524 W. Co. Rd. C2

Roseville, Minnesota

There is no cost to attend, but seating is limited.


Dementia Exit Options - Challenges of Advance VSED

Can you leave enforceable instructions for VSED in an advance directive? JoNel Aleccia (Kaiser Health News) addresses this question in a new article printed in USA Today and other newspapers across the country this weekend.

Nora Harris signed an advance directive after her Alzheimer's diagnosis to prevent her life from being prolonged when her disease got worse. But she�s being kept alive with assisted eating and drinking against her stated wishes.

As I noted in the article, many states authorize either advance instructions for VSED or an appointed healthcare agent's direction for VSED. But the advance directive must provide such authorization with extraordinary clarity. Unfortunately, Harris' advance directive (like Margot Bentley's advance directive in a similar case) was not sufficiently clear that VSED was desired.

I have a few articles on VSED forthcoming in two medical journals. For my past legal analyses, see here, here, and here.

New Legal Guidelines for Determination of Brain Death

My analysis of Nevada's recent and unique amendment to the Uniform Determination of Death Act (UDDA) is now online first at the Journal of Bioethical Inquiry: "New Legal Guidelines for Determination of Brain Death."

My comprehensive review of all legal challenges to the legal status of brain death is forthcoming in the Journal of Legal Medicine. 

Hospice Compare - New Medicare Quality Scores Tool

This week, Medicare launched a new website called Hospice Compare.

Scores reveal the percentage of patients who:

  1. Were checked for pain at the beginning of hospice care.

  2. Received a timely and thorough pain assessment when pain was identified as a problem.

  3. Were checked for shortness of breath at the beginning of hospice care.

  4. Received timely treatment for shortness of breath.

  5. Were taking opioid pain medication and who were offered care for opioid-related constipation.

  6. Were asked about treatment preferences such as hospitalization and resuscitation at the beginning of hospice care.

  7. Were asked about their beliefs and values at the start of hospice care.

This transparency and public reporting will help families make informed choices and will motivate providers t improve their services.

Quinlan at 40: Exploring the Right to Die in the U.S.

In November 2016, the Georgia State University College of Law hosted a symposium: "Quinlan at 40: Exploring the Right to Die in the U.S."

Four published articles from this symposium are now available from the law review's website.

Distinctive Factors Affecting the Legal Context of End-Of-Life Medical Care For Older Persons

Marshall B. Kapp

Ending-Life Decisions: Some Disability Perspectives

Mary Crossley

Unbefriended And Unrepresented: Better Medical Decision Making For Incapacitated Patients Without Healthcare Surrogates

Thaddeus Mason Pope

2016-2017 Georgia State University Law Review Symposium: Exploring the Right To Die In The U.S.

Margaret Pabst Battin

Unbefriended and Unrepresented: Better Medical Decision Making for Incapacitated Patients without Healthcare Surrogates

The Georgia State University Law Review has posted a PDF of my new 98-page article, "Unbefriended and Unrepresented: Better Medical Decision Making For Incapacitated Patients Without Healthcare Surrogates."

The purpose of this Article is to help improve the quality of healthcare decision making for the unbefriended. I hope that this comprehensive and systematic explanation of both the problem and the available solutions will empower both public and clinical policymakers to develop more informed and more circumspect policies and procedures.

Minnesota Medical Aid in Dying (MAiD)� Lessons Learned in Oregon and Colorado

Join me on Friday, September 29 for "Minnesota Medical Aid in Dying (MAiD)� Lessons Learned in Oregon and Colorado."

570,000 Use Medicare Coverage for Advance Care Planning

Data from the Centers for Medicare and Medicaid Services shows that more than 570,000 beneficiaries used advance care planning appointments in 2016, the first year such services were billable.

Earlier CMS data showed that 220,000 people had participated in the first six-months of 2016. The rate of claims accelerated in the second half of the year, likely due to providers learning more about the new billing procedures.

Consumer Bill of Rights and Responsibilities - 20 Years Later

20 years ago, the Presidential Advisory Commission on Consumer Protection and Quality in the Health Care Industry released its report Consumer Bill of Rights and Responsibilities.  A key message in the report is to make healthcare information understandable.  Unfortunately, we have not made much progress.  

Health Law Workshops at Harvard Law School

I am delighted to participate in this year's Health Law Policy, Biotechnology, and Bioethics Workshop at Harvard Law School.  The workshop provides a forum for discussion of new scholarship in these fields from the world's leading experts.

Harvard graduate students may register to take the workshop for course credit, but it is also open to the public. This year, the workshop is led by Professor I. Glenn Cohen, and meets on selected Monday evenings from 5-7pm on the Harvard Law School campus. The invited presenter generally speaks for about 30 minutes, after which the door is opened for Q&A. It is recommended to read the papers in advance. 

Other guest presenters include

William Sage

Jody Madeira

Frances Shen

Renee Landers

Alicia Yamen

Belinda Bennett

Aziza Ahmed

Dabid Studdert

Allisson Hoffman

Timothy Caulfield

Rachel Saks

British Columbia Court of Appeal Tosses Unwanted Treatment Claim

I have recently highlighted (here and here and here) the growing success of legal claims when clinicians administer unwanted life-sustaining treatment.  One recent case from British Columbia goes the other way.

Brenlee Kemp sued Vancouver General Hospital for battery on her mother. The trial court rejected the hospital's claim to dismiss the claim. The court ruled the battery claim should go to trial, because there was conflicting evidence regarding whether consent was given.

The Court of Appeal reversed. The court explained that the existence of express consent is irrelevant, because the clinicians had implied consent. First, Brenlee made desperate pleased to "help" her mother. Second, she was present during the resuscitation and made on objections to the resuscitation efforts taking place in close proximity to her.

Variability in the Initiation of Resuscitation Attempts by Emergency Medical Services Personnel during out-of-hospital Cardiac Arrest.

Variability in ICU treatment has been well documented.  In contrast, I had understood that EMS resuscitated and transported everyone who was not obviously dead. 

But apparently there is variability even there. A new article in Resuscitation concludes: "The proportion of patients with OHCA who receive resuscitation attempts is variable across EMS agencies and is associated with EMS response interval, ALS unit availability and geographic region. On average, survival was higher among EMS agencies more likely to initiate resuscitation."

Jahi McMath - Impact Even if the Lawsuit Fails

Jahi McMath continues to litigate medical malpractice claims against the Oakland healthcare providers who treated her in 2013. 

In July, the medical defendants argued that Jahi's claims must fail, because there is no valid evidence that she is now alive. Consequently, she has no standing to assert personal injury claims. The judge has not yet ruled on the pending motions for summary adjudication. But it looks like Jahi has submitted enough evidence that the life/death question should proceed to trial.

At trial, the jury might conclude that Jahi is still dead, because they find Jahi's evidence to be less credible than the defendants' evidence. The jury might also conclude that the defendants did not commit malpractice. If the jury reaches either conclusion, then Jahi's claims will fail.

If Jahi wins her lawsuit, that means there is something wrong with the way we measure brain death. It is supposed to be "irreversible." 

But even if Jahi loses her lawsuit, it will have had significant impact. First, the fact that she has been sustained this long (approaching 4 years) also suggests (though less obviously) that there is something wrong with the way we measure brain death. Second, it has sown distrust and confusion across the country, resulting in more family-clinician conflicts surrounding brain death.

Festival of Death and Dying

In contemporary Western culture death and dying are generally regarded as something to fight against, deny, hide from public view and above all fear. 

But what if we were to look at them differently? Despite understandable fear and denial, we may have very good reasons to want to learn more about death and dying. Thinking about and experiencing mortality�our own and that of others�can make us our lives richer, deeper and more valuable to us. Mortality in truth is the intensification of life.

This September, check out the first Melbourne edition of the Festival of Death and Dying. There will be over 20 participatory workshops, performances, talks and ceremonies on different aspects of death and dying over two days. In addition to talks and discussions, you will have experiences, which do justice to the full spectrum of what is at stake in mortality. 

Choosing To Die, Right Or Wrong? With Phyllis Shacter (Death Hangout)

The podcast series Death Hangout recently featured Phyllis Shacter on VSED. 

Phyllis is the author of the book, Choosing to Die. The book is a personal story about her journey with her late husband Alan and his choice to die by Voluntarily Stopping Eating & Drinking (VSED).

The reason Alan chose to do this was he had been diagnosed with Alzheimer�s and he wanted to end his life as conscious and organically as possible and to reduce his suffering. The Death Hangout hosts talk with Phyllis about the process, how it impacted Alan and her, and how it has changed how she lives now.

Texas Advance Directives Act - Broad Alliance Files Amicus Brief Defending TADA Constitutionality

Kelly v Methodist Hospital challenges the constitutionality of the Texas Advance Directives Act. The case is getting ready for trial in Harris County District Court.

At the end of July, a broad alliance submitted a 28-page amicus brief on behalf of the defendant. The amici include:











I will make just two observations about the brief.

1.  The amici argue that there is no state action, because clinician and hospital use of TADA is completely voluntary. They may but need not use TADA. On the other hand, the amici concede that similar process based approaches in other states "had little practical effect" because of the threat of liability. Consequently, they concede that TADA's provision of safe harbor immunity really did change clinician and hospital behavior. Texas clinicians and hospitals would not withdraw life-sustaining treatment without consent BUT FOR the immunity conferred by TADA.

2.  Since the 1970s, numerous appellate courts (e.g. Quinlan) have held that all sorts of medical treatment issues can and should be handled by hospital committees. But these judicial opinions are very clear that conflicts and disputes should still go to court. Since TADA authorizes hospital review committees to adjudicate life and death disputes, these committees are exercising a judicial function. That is state action sufficient to make constitutional requirements apply to private hospitals like Methodist Houston.

Alabama Warden Directed Clinicians to Withdraw Inmate's Life Support - Federal Court Allows 8th Amendment Claim

Marquette F. Cummings, Jr. was an inmate at St. Clair Correctional Facility in Springville, Alabama. He was seriously stabbed in the eye and was airlifted  to University of Alabama at Birmingham Hospital.

His family filed a federal lawsuit based on the following conduct at the hospital. Dr. Sherry Melton, a medical supervisor at UAB Hospital, changed Cummings's code status to Do Not Resuscitate without authorization from Gaines or any other family member and without notifying Gaines and Cummings's family of the decision.

Plaintiffs allege that Dr. Melton relied upon statements from the St. Clair warden to change Cummings's code status to DNR even though Gaines and several other family members were at the hospital. Plaintiffs further allege that �Warden Davenport authorized UAB medical personnel to stop giving Cummings medication and to disconnect the life support machine.� Plaintiffs allege that contrary to Gaines's wishes, and �[b]ased on [the] directive from Warden Davenport, Cummings was taken off of life support....� Cummings passed away just hours after UAB medical personnel removed his life support.

Finding that the warden lacked any authority under Alabama law to make those treatment decisions, the court denied the warden's motion to dismiss the Estate's � 1983 claim based on Warden Davenport's alleged deliberate indifference to Cummings's serious medical need in violation of the Eighth Amendment.

Alberta Tribunal Decision Approves Unilateral DNAR Order

A recent decision from Alberta highlights some differences between Alberta and Ontario regarding the need for clinicians to obtain consent before withholding or withdrawing life-sustaining treatment.

Anita Tran filed a complaint with the Alberta medical board regarding the treatment of her 96-year-old mother at Royal Alexandra Hospital. Clinicians had determined that the patient: (1) was not a dialysis candidate, (2) was not a candidate for the ICU, and (3) should have a DNR order.  Tran alleges these actions were taken without permission. Indeed, it seems clear that the DNR order was written NOT on the basis of consent but instead on the basis it would not be medically effective.

Tran's complaint was dismissed. That dismissal was affirmed by the Court of Queen's Bench. It was apparently sufficient that clinicians "advised" Tran of the DNR.  This sounds like the rule in the UK.

How Often Is End-of-Life Care in the United States Inconsistent with Patients' Goals of Care?

How Often Is End-of-Life Care in the United States Inconsistent with Patients' Goals of Care? 

A new article in the Journal of Palliative Medicine determined it is 13% of the time.  Based on the annual number of US decedents, that means perhaps 325,000 patients get end-of-life care inconsistent with their goals of care. Most of that is unwanted over-treatment. 

UK Courts Again Overrule Parents, Authorizing Clinicians to Withhold Treatment, Citing Gard

At the end of June, Mr. Justice Baker of the High Court of Justice Family Division cited the Gard case in making a similar ruling.

HK was a 3-month old baby with catastrophic injuries.  The court balanced the factors weighing in favor of treatment:(a) the parents' wishes, and (b) the presumption in favor of life.  Again that, the court weighed the fact that (c) treatment offered no prospect of benefit, and (d) treatment probably imposed suffering.

The court ruled that it was lawful and in HK's best interest that:

1. There be no neurosurgery intervention.

2. That there be no CPR.

3. That there be no escalation of treatment.