Advance Care Planning: What You Need To Know Now

Planning for end-of-life medical care can be daunting and uncomfortable, which is why so many people put it off � or don�t do it at all.

Join Kaiser Health News on Wednesday Nov. 8 from 3 p.m. until 4:30 p.m. ET for an informative and important discussion about navigating the medical, legal and ethical landscape of end-of-life care. It�s an opportunity to learn from experts in the field about the wide range of difficult questions facing health care providers, policy-makers, consumers and their families. Topics will include what are advance directives and who should have one, how do people make sure that their wishes for end-of-life medical care are honored, and the special needs of dementia patients. Please come, ask questions and share experiences.

Kaiser Health News Senior Correspondent JoNel Aleccia will moderate a discussion with you and a panel of experts of the pressing issues surrounding end-of-life advance care planning.

Our panelists are:

  • Thaddeus Mason Pope, JD, PhD, an expert on end-of-life law.

  • Judith Schwarz, RN, PhD, expert on choices made by patients and families at the end of life.

  • Charles Sabatino, JD, Director of the American Bar Association's Commission on Law and Aging

  • Marian Grant, senior policy advisor, the Coalition to Transform Advanced Care, who has a personal experience with a health system�s failure to honor an advance directive.

Registration, coffee and dessert begin at 2:30 p.m.

The event in the Foundation's Washington, D.C. office is open to the public. Feel free to share with your contacts and colleagues.

This event is sponsored in part by The John A. Hartford Foundation which supports KHN�s coverage related to aging & improving care of older adults.

3D Printable Euthanasia Machine - Sarco

Philip Nitschke has apparently invented a 3D printable euthanasia machine.

Access to the machine � the Sarco capsule � will be by completing an online questionnaire, which produces a four-digit access code. On reclining in the capsule, activation uses liquid nitrogen to rapidly drop the oxygen level, and a peaceful death will result in just a few minutes. The capsule can then be detached from the Sarco machine and used as a coffin. The machine base can be reused.

Sarco does not use any restricted drugs or require any special expertise such as the insertion of an intravenous needle. Anyone who can pass the entry test can enter the machine and legally end their life.

Going It Alone: Unbefriended Older Adults in Long Term Care

Carole Estabrooks

The brainXchange as a free webinar on unrepresented patients in long term care

on Tuesday, October 31.

Long term care residents are �unbefriended� if they lack decision-making capacity and a family member or a friend to act as their guardian. Little is known about these residents although they are among the most vulnerable older adults generally and especially in long term care. 

Stephanie Chamberlain and Dr Carole Estabrooks will describe a research project examining the characteristics and potentially unmet care needs of unbefriended residents in long term care. This presentation will describe what is currently known about unbefriended residents and selected (very) preliminary results from interviews with long term care staff and public guardian representatives in Alberta.

Charlie Gard Webinar with Dominic Wilkinson

Tune in on Monday, October 30 for the latest in the excellent (and free) Children's Mercy webinar series when Dominic Wilkinson discusses the Charlie Gard case.

In July 2017, the long-running, deeply tragic and emotionally fraught court case of UK infant, Charlie Gard reached its sad conclusion. This high profile case raised some vexing questions in medical ethics about the extent of parental discretion in decisions about treatment for a child. 

It highlighted legal (and potentially ethical) differences between the US and UK approach to disagreement between professionals and parents. It attracted attention and comment from many public figures and raised questions about ethical debate in the age of social media and the internet.

While the central questions in the Gard case continue to divide ethicists, health professionals and the public, in this talk, Dr. Wilkinson will seek to identify some common ground and potential lessons to learn for future cases. 

Dominic Wilkinson is Director of Medical Ethics and Professor of Medical Ethics at the Oxford Uehiro Centre for Practical Ethics, University of Oxford. He is a consultant in newborn intensive care at the John Radcliffe Hospital, Oxford. He also holds a health practitioner research fellowship with the Wellcome Trust. Follow Dr. Wilkinson on Twitter @Neonatalethics. 

Medical Futility Conflicts - Theory v. Practice

I recently
participated in a multi-session retrospective review of how a healthcare
facility implemented its medical futility policy. It reminded me of the gap
between legal and ethical analysis, on the one hand, and implementation at the
bedside, on the other hand.

I have written scores of articles and book chapters on medical futility. But it
was humbling to hear from those who actually had to coordinate communication
among numerous clinicians and between the clinicians and the family. It is not
an easy job.

I was reminded of 1975 film "Three
Days of the Condor." The main character played by Robert Redford works
"just writes books for the CIA" to explore and testing various
espionage scenarios. But he is not a field agent with a gun.

Nancy Cruzan - 30 Year Anniversary (Oct. 23, 2017)

Today is the 30th anniversary of the beginning of the Nancy Cruzan case.  

Four years after the accident, with no hope of recovery in sight, Nancy's parents and co-guardians requested that the hospital terminate her artificial hydration and nutrition. The hospital refused to honor their request without court approval. 

Consequently, on October 23, 1987, the Cruzans petitioned Jasper County Probate Judge Charles E. Teel, Jr., for a declaratory judgment allowing them to remove her feeding tube.

While Judge Teel granted that judgment, it was later reversed by the Missouri Supreme Court and the U.S. Supreme Court.

(Side note: It was a pleasure to meet Cruzan family attorney Bill Colby this weekend in Kansas City.)

Court Orders Hospital to "Treat" Dead Patient for Over 1 Month

In the latest of a growing line of clinician - family conflicts over brain death, a Toronto court has ordered Brampton Civic Hospital to continue organ support for Taquisha McKitty into early November even though clinicians declared her dead on September 20, 2017. 

The court is still evaluating the family's claims that the patient is actually alive.  

Voluntarily Stopping Eating and Drinking (VSED) to Hasten Death: May Clinicians Legally Support Patients to VSED?

My latest piece on VSED is available today from BMC Medicine.  

ABSTRACT - Jox and colleagues recently compared and contrasted two leading end-of-life exit options, namely voluntarily stopping eating and drinking (VSED) and medical aid in dying (MAID). The authors argue that policymakers and medical societies should consider VSED and MAID in a uniform and consistent manner given that clinician participation in both constitutes assisted suicide. This is a very controversial topic. Herein, it is questioned whether there really is disparate consideration of VSED and MAID and whether it is justified, bearing in mind that VSED is not assisted suicide.

Dying in the Americas 2018

Join me at "Dying in the Americas 2018" from March 21-25, 2018 in Henderson, Nevada.

Be a part of the change that is taking place in the Right-to-Die movement. Participants from Canada, the U.S., and Latin America will come together to share best practices, learn from each other, and find inspiration and insight.

Dying in the Americas 2018 will take place March 21-25, 2018, at the Hilton Lake Las Vegas in Henderson, Nevada, a serene city in the foothills between the Hoover Dam and Lake Meade to the east and Las Vegas to the northwest.

Besides the great conference programming that you won't want to miss, you can savor the area's beautiful red-rock scenery with plenty of hiking, cycling, and boating options. Enjoy the nightlife in Las Vegas, with many shows, shops, and events to choose from. Our conference hotel rate is available for the days just before and after the conference if you would like to extend your stay. The hotel furnishes a shuttle several times a day into downtown Las Vegas, about 20 minutes away.

Conference schedule:

  • The conference begins Wednesday, March 21 with a 6:30pm reception and program. 

  • Conference programming ends Saturday, March 24 at 4:30pm.

  • You are welcome to participate in small group action workshops on Sunday from 9am to noon.

  • Medical and hospice personnel, palliative care specialists, media, and anyone interested in improving the quality of Dying in the Americas are invited to attend. Join us to discuss the questions: 

  • What are the best practices for a peaceful death currently available in the Americas?

  • How can we make sure that everyone has access to this care?

Brain Death Conflict - Taquisha Desirae McKitty

On September 14, 2017, 27-year old Taquisha Desirae McKitty was brought to Brampton Civic Hospital suffering from a drug overdose. After six days, doctors declared her brain dead despite her family�s wishes.

The family filed an injunction to keep McKitty on organ support. On September 28th, Superior Court Justice M.J. Shaw extended that injunction to October 17th so that the family could obtain a second opinion from another physician. It is unclear that they have obtained such an opinion.

12% of Patients Receive �Futile" Treatment

Hannah Carter

A new Australian study determined that 12% of end-of-life treatment was "futile" as determined by a consensus of clinicians.  

This corroborates a figure determined a few years ago in a study at UCLA in the United States. Clinicians in that study determined that 11% of ICU treatment was "futile" and another 9% "probably futile."

NJ Judge Recognizes Cause of Action for Wrongful Prolongation of Life

Earlier this year, I argued that courts are becoming more receptive to tort claims when clinicians administer life-sustaining treatments contrary to patient wishes or instructions.  The New York Times picked up on my piece. Now, the New Jersey Law Journal reports that yet another case has joined this trend.  

Morris County, NJ Superior Court Judge W. Hunt Dumont declined to grant summary judgment in favor of defendants, Morristown Medical Center, Dr. Andrew Youseff and several nurses for their role in prolonging the life of Suzanna Stica. �Defendants violated Ms. Stica�s rights when they resuscitated her against the clear directives.� 

Despite those orders, the defendants resuscitated Stica after she went into cardiac arrest. She lived another six months before she finally died. During that time, she experienced pain and suffering.

Charlie Gard Redux - Isaiah Hasstrup and Pediatric Medical Futility Conflicts in London

Clinicians at King's College Hospital say that giving further intensive care treatment to seven-month-old Isaiah Haastrup is "futile, burdensome and not in his best interests."

The baby's parents, Takesha Thomas and Lanre Hasstrup, want his treatment to continue.

On Friday, October 13, Judge Justice MacDonald examined a number of legal issues at a private hearing in the Family Division of the High Court.  There is another hearing on November 10.

Two New Medical Futility Cases in Canada

Hassan Rasouli

After the Supreme Court of Canada's decision in Rasouli, clinicians across Canada have generally been "chilled" from standing up to surrogates who demanded potentially inappropriate life-sustaining treatment.  But two new cases suggest that some clinicians are still committed to defending what they think right for the patient.

The first case concerns Darlene Crayne who was at Chinook Regional Hospital outside Calgary. Clinicians planned to remove her ventilator. The family obtained a temporary restraining order, but ultimately withdrew their application for a court injunction when they realized they would probably lose.

The second case concerns Johnnie Frank Spence who died at the Manitoba Health Sciences Centre.  His wife is suing (also here) the Winnipeg Regional Health Authority, alleging medical staff removed her husband from a ventilator knowing he would die, even though he had regained consciousness and was communicating with family members.

ASBH 2017 - Law Sessions

Join me on Saturday, October 21 at 12:45p in Empire C for "Effecting Change, Impacting Policy."

In this tumultuous political climate, ethicists� expertise can be invaluable in educating policymakers about the implications of potential changes to law and policy. Ethicists with legal experience and knowledge can help effect important changes at the national and local level � whether by drafting amicus briefs, submitting comments on proposed administrative regulations, or lobbying legislators. This panel will bring together experts at the intersection of law and ethics who have been successful in impacting policy on issues relevant to the ASBH community.

The panel includes:

Kirstin Matthews, Rice University's Institute Baker Institute for Public Policy

Thaddeus Pope, Mitchell Hamline School of Law

Carrie Zoubul, C.A. Goldberg, PLLC

Also join me on Friday, October 20 at 10:45a for the "Top 10 Legal Developments in Bioethics" with Art Derse, Paul Lombardo, and Valerie Gutmann Koch.

I will also be two more things.  First, I will do a "Meet the Professor" at 7:00a on Friday October 20.  Second, I will do a session on pregnant dead women on Saturday, October 21 at 8:00a.

Principles and Practice of Bioethics and End-of-Life Care for Patients with Dementia (Roseville, MN)

Check out this free CEU seminar with Vic Sandler.  I have had the pleasure of serving on the University of Minnesota Hospital Ethics Committee that Vic co-chairs.  I have also had the pleasure of co-chairing Minnesota POLST with Vic at the Minnesota Medical Association.

Third Biennial Conference of Philosophy of Death & Dying

The call for abstracts is open for the Third Biennial Conference of Philosophy of Death & Dying, August 8-10, 2018, in Uppsala, Sweden.

Organizers invite submissions that address any philosophical questions related to death and dying. This includes, but is not limited to, the following:

  1. The Metaphysics of Death (e.g. the criterion of death; the nature of death�s harm; the subject and timing of the supposed harm of death; the asymmetry problem)

  2. Axiological Issues (e.g. death as a harm or a benefit)

  3. Emotions and Attitudes (the rationality of fear of death; the value of dwelling on mortality)

  4. Immortality (e.g. questions of the desirability and the possibility of immortality)

  5. Suicide (e.g. issues of autonomy, rationality, and morality)

  6. Dying (e.g. aging; dying well; facing death; the question of the need for completeness and closure)

  7. The Death of Others (e.g. the phenomenology and ontology of grief; the importance to us of future people)

  8. The Ethics of Killing (e.g. war, euthanasia, abortion, animals)

  9. Philosophical Implications of Death-Related Technologies (e.g. radical life extension; cryogenics)

New Lawsuit for Non-consensual Removal of Life Support

Most lawsuits between families and clinicians concerning life-sustaining treatment are for injunctions. The family wants to keep the patient alive. But some (like this one in Connecticut) are for money damages after the patient has died.

One such case has just been filed against the Winnipeg Regional Health Authority in Manitoba Court of Queen's Bench. The wife of Johnnie Frank Spence alleges medical staff removed her husband from a ventilator without consent.

Doris Spence is seeking $100,000 in general damages on behalf of herself and seven family members, as well as punitive damages under the Fatal Accidents Act.

"The plaintiff states [the doctor] intentionally ignored the clinical proof of Johnnie's level of cerebral function, and set forth on a course of conduct to withdraw treatment, knowing that Johnnie's life would terminate."

Are Advance Directives Safe Enough? Top Court to Decide

Asking whether a healthcare tool or intervention is "safe" almost always really means asking if it is "safe enough."  First, almost all healthcare tools and interventions introduce their own inherent risks. Second, almost all tools and interventions can be negligently or deliberately administered wrongly.  

The Supreme Court of India is considering whether advance directives are safe enough. One key concern is the possibility of coercion or fraud by greedy relatives.

In the United States, there have certainly been cases where advance directives have been abused (see, e.g. Van Note). But the number of these cases is microscopic relative to the millions of advance directives that have helped assure value-congruent care since 1976.

Yes, MAID, POLST, and other tools are not perfect. But perfection is not a reasonable goal. Denying access to imperfect (yet mostly safe) options denies material benefits to multitudes. This is not the standard in healthcare or in the design of cars, toasters, or almost anything else.

Medical Futility Blog Surpasses 3 MILLION Pageviews

The Medical Futility Blog has surpassed 3 million pageviews. 

This number does not even include all the pageviews on syndicated sites like WestLawNext and

ACHIEVING A PEACEFUL DEATH: What We've Learned in 30 Years, Including Dementia

Check out this end-of-life policy conference on November 4, 2017 that celebrates the 30-year anniversary of the Hemlock Society of San Diego.

Distinguished Guests include:

  • Derek Humphry, Founder of the Hemlock Society USA (1980), author of "Final Exit" 

  • Kathryn Tucker, J.D., Executive Director, End of Life Liberty Project 

  • Rob Jonqui�re, M.D., Executive Director, World Federation of Right to Die Societies

Topics will include:

  • What to do About Alzheimer's Disease and Dementia

  • The POLST and How to Use It

  • Death in Switzerland: Pros and Cons

  • The Final Exit Network: Who They Are and How They can Help You

  • California's End of Life Option Act

  • Do-It-Yourself Methods

  • Do-Not-Resuscitate Orders (DNR)

  • Further Legal Actions

End-of-Life Care Patient Decision Aids - Call for Submissions for Certification

The Washington State Health Care Authority is now accepting submissions to certify a third round of patient decision aids. The call is for decision aids to assist in shared decision making around end of life care. 

The submission period will be open from October 2, 2017 until November 17, 2017.

In Scope:

Potentially life sustaining care

Palliative or Hospice Care

Out of Scope:

General Advanced Care Planning Documentation

Aid in Dying

Defendants to Physically Examine Jahi McMath to Confirm Brain Death

In late September 2017, five defendants and the plaintiff filed case management statements in Jahi McMath's medical malpractice lawsuit in California state court.

Of note, some defendants note that their planned discovery includes an IME (independent medical exam) of Jahi on brain death by August 2018.

Some defendants declared that they "plan to file a Motion to Bifurcate the Trial of the issue of whether Jahi McMath is legally dead under California law, as this is the primary driving issue in the case."

Israel Stinson - Court Dismisses Constitutional Challenge to Uniform Determination of Death Act

Israel Stinson was determined dead in April 2016. But his parents disputed both the accuracy of that diagnosis and the legitimacy of the manner in which clinicians proceeded.

Stinson's parents litigated these issues in several California state courts (both Placer and LA Counties) and in the U.S. District Court for the Eastern District of California where they have alleged constitutional defects with the Uniform Determination of Death Act.

Over the past several months, the federal court dismissed the complaint several times permitting the plaintiffs to amend to correct defects. Late last month, the federal court dismissed the Third Amended Complaint with prejudice, holding  plaintiffs failed to show they have standing to pursue their claims. Furthermore, the court held that plaintiffs articulated no arguments and subsequent events that would make an amendment not futile.

Court Excludes Key Witness from Medical Futility Trial

Judge Paul Kurmay on right

The family of Helen Marsala continues its medical futility lawsuit against Yale New Haven Hospital.

This action emanates from Yale-New Haven Hospital's decision to remove the ventilator that was being used for the medical treatment of Helen Marsala. Helen died the next evening. The remaining claims are for wrongful death, medical malpractice, and loss of consortium.

In the most recent development, late last month, the court excluded the plaintiff's proposed expert witness, retired Judge Paul Kurmay.  In short, the court determined that expert witnesses may not testify on matters of law.  

The theory on which Judge Kurmay would have testified is interesting.  In short, he would testify:

1. Yale did not possess the authority to unilaterally discontinue life support.

2. Yale knew or should have known that the proper judicial procedure for determining whether life support should be withdrawn from an incapable patient is to seek the appointment of a conservator by the appropriate probate court. 

3. Yale should have provided Plaintiffs with an opportunity to arrange for the transfer of Helen to another facility if Yale was unwilling to continue to treat her. 

Michigan May Join "Red Light" States that Prohibit Stopping Life-Sustaining Treatments without Consent

On Thursday, Michigan state Senator John Proos introduced a bill that would make Michigan the latest in a growing list of states that prohibit clinicians from stopping one or all forms of life-sustaining treatment without consent. Other recent states include Kansas, Texas, Idaho, Oklahoma. 

The key language in S.B. 597 provides: "a physician shall not issue a medical order, orally or in writing, to withhold or withdraw life-sustaining treatment from a patient or to not resuscitate a patient without first obtaining . . . consent."