Can you be held liable for resuscitating a patient who has a DNR order?

A New Mexico woman, suffering from Dercum’s disease (adiposis dolorosa) which causes painful fatty tumors, is suing a Santa Fe hospital and an emergency physician claiming she was the victim of two negligent acts in 2016.

One, according to the Albuquerque Journal, she told hospital personnel she was allergic to Dilaudid but went into cardiac arrest after receiving an injection of the drug.

Two, despite the presence of a lawfully executed “do not resuscitate” (DNR) advance directive, she was successfully resuscitated and now faces continued pain and medical bills.

The staff had been aware of her DNR order and had even issued her a purple bracelet labeled “DNR.” However since the cardiac arrest was allegedly caused by an allergic reaction to Dilaudid, the staff may have felt her problem was not related to her illness and would likely result in a successful resuscitation.

While researching this subject, I found several instances of patients or families suing hospitals and doctors for failing to heed a DNR order or what some have called “wrongful life.”

However, I found only one major case that had gone to conclusion. A Georgia woman had both an advance directive and a healthcare proxy—her granddaughter. She was admitted to a hospital for a cough and eventually required a thoracentesis. The healthcare proxy agreed to allow the procedure to be done but specifically said her grandmother did not want intubation or mechanical ventilation.

A 2017 paper in The Journal of Clinical Ethics said the patient was temporarily intubated and ventilated during the thoracentesis. She was extubated, but a bout of respiratory distress was treated with intubation and mechanical ventilation again without consulting the granddaughter. The patient died two weeks later.

The granddaughter sued, and the hospital settled for $1,000,000. I believe this is the first such case settled for that much money. The biggest problem was failure of the doctor to communicate with the healthcare proxy.

Many issues in medicine are not black or white. Here’s the other side of the story. An elderly Boston man suffered a cardiac arrest in a hospital CT scanner and was resuscitated. The resident who treated him wrote that during the code, a nurse discovered a 6-year-old advance directive saying he did not want to be resuscitated in his chart.

But the code team noted he had walked into the hospital for the test and felt certain they could save him. They contacted his son and healthcare proxy who said “My father would want everything done to save his life.” The code was successful. He was weaned from mechanical ventilation and extubated after a few hours. He thanked his doctor and was discharged from the hospital two days later.

Some take-home points:

A DNR order and an advance directive may not necessarily be the same. For more information, read an interview with the plaintiff’s lawyer in the Georgia case.

Whether to resuscitate a patient or not may depend on the circumstances [e.g., whether an event is likely reversible or not], the wording of an advance directive, and/or the wishes of the healthcare proxy.

If possible, explain the possible scenarios and outcomes of resuscitation and DNR to your patients and their families well before a cardiac arrest occurs.

Communicate with patients and their healthcare proxies.

Family of late pop singer Prince sues everyone for malpractice

According to the New York Times, “The suit claims that Prince’s death was a “direct and proximate cause” of the hospital failing to appropriately diagnose and treat the overdose, as well as its failure to investigate the cause and provide proper counseling.”

The suit names a hospital and an emergency department physician in Moline, Illinois where Prince’s private jet made an emergency landing when he became unresponsive during a 2016 flight home to Minnesota from a concert in Atlanta.

An employee of his told paramedics who met the plane that he “may have taken a Percocet.” After Prince regained consciousness, he supposedly told the ED doc he had taken two Percocets, but she did not believe him because it had taken two doses of Narcan, an opioid antidote, to revive him.

Friends said he refused all testing including blood and urine toxicology because he was trying to keep his addiction a secret.

A surgical resident’s legal battle with her program

My new post on Physician's Weekly is about a dispute between a resident and her surgical residency program that has escalated to court and the news media. Click here to read it.

Narcotic addicts can sue doctors and pharmacies for "enabling" them

In a 3-2 decision, the Supreme Court of West Virginia ruled that narcotic addicts may sue pharmacies and physicians for facilitating their addictions.

A suit was brought on behalf of 29 pain center patients who had been treated with narcotics for various injuries and became addicted. One article quoted the Chief Justice's explanation: "A plaintiff’s wrongful or immoral conduct does not prohibit them from seeking damages as the result of the actions of others."

The court recognized that most of the plaintiffs "admitted their abuse of controlled substances occurred before they sought help "at the pain clinic.

Another story said, "The justices paved the way for people to claim damages for allegedly causing or contributing to their addictions of controlled substances—even if they broke the law by doctor shopping."

In a dissenting opinion, one justice wrote that the decision “requires hardworking West Virginians to immerse themselves in the sordid details of the parties’ enterprise in an attempt to determine who is the least culpable—a drug addict or his dealer.”

In response to the ruling, the West Virginia Medical Association issued a statement: "It may cause some physicians to curb or stop treating pain altogether for fear of retribution should treatment lead to patient addiction and/or criminal behavior. It may create additional barriers for patients seeking treatment for legitimate chronic pain due to reduced access to physicians. It would allow criminals to potentially profit for their wrongful conduct by taking doctors and pharmacists to court."

A post on the American Pharmacists Association website explained that pharmacists were included in the ruling "because they were aware of the 'pill mill' activities of the medical providers. The plaintiffs said these pharmacies refilled the controlled substances too early, refilled them for excessive periods of time, filled contraindicated controlled substances, and filled 'synergistic' controlled substances."

One newspaper summarized the public reaction to the ruling in an editorial stating, "Those who are illegally abusing prescription narcotics should be prosecuted to the fullest extent of the law. The same goes for medical professionals who are found guilty of committing a criminal act. But telling a drug addict or someone who is illegally abusing prescription narcotics that it is OK to go to court and file what could very well be a frivolous lawsuit is both baffling and shameful. This ruling by the Supreme Court justices is a clear back eye for West Virginia. And it does nothing to help West Virginia’s rampant drug problem."

As I wrote last year, I think the prescription drug abuse epidemic all stems from a 15-year campaign that declared pain is the fifth vital sign—a concept which is both untrue and as we have come to learn, harmful.

I agree with the WVMA. If I were practicing in West Virginia, I would be very reluctant to prescribe narcotic pain medication to any patient.

What do you think?

Duke Docs Who Attached Intestine to Vagina Must Stand Trial

Catchy headline, isn't it?

That headline appeared two years ago on the Outpatient Surgery website. Too bad it wasn't accurate.

This case has been a topic on the Internet off and on for a few years. Although the patient's surgery took place in 2008, the malpractice trial did not occur until earlier this month.

Like nearly every news media article about malpractice incidents, details were sketchy and sensationalism was featured.

Also common in cases like this that although many stories appeared about the case before the trial, but few reported the verdict. That is because after deliberations lasting less than one day, the doctors were not found guilty of negligence.

According to a story on the only media outlet reporting the verdict—Courtroom View Network, here's what happened.

The patient underwent surgery for debilitating chronic constipation at Duke University Medical Center in 2008. Postoperatively, she developed a recto-vaginal fistula [a tract or tunnel from the rectum to the vagina] due to a portion of vaginal wall being caught in the surgical staple line when the intestine was reconnected. The problem was corrected by a second operative procedure.

Prior to the first case, the patient had been informed that secondary procedures might be necessary if complications arose.

The malpractice suit was originally denied by a lower court because the plaintiff could not find an expert witness to testify that negligence had occurred, but an appeals court ruled that an expert was not necessary because "even a layperson would be able to determine whether or not negligence occurred," and "It is common knowledge and experience that intestines are meant to connect with the anus, not the vagina, even following a surgical procedure to correct a bowel problem."

Although the second operation solved the patient's problem, she claimed that she had suffered a conversion disorder causing slurred speech, tremors, and weakness. However, subsequent treating physicians felt that her symptoms were inconsistent and that she was "trying to appear disabled."

This case illustrates several important principles about medical malpractice cases.

They often take a long time—an average of 4 to 5 years—to be resolved.

Every less-than-perfect outcome is not necessarily due to negligence. Recto-vaginal fistula is a known complication of this type of surgery.

Stories from 2013, when the appeals court said the case could go to trial and from this year just before the trial started, implied that the surgeons had mistakenly attached the intestine to the vagina which many of us found hard to believe. But without knowing the details, we could only speculate.

The jury did not believe the alleged damage—a conversion reaction—was real.

This lawsuit, which cost both the plaintiff's attorney and the defendants' insurance company a lot of money and dragged two highly competent and respected surgeons through the mud for 7 years, should never have gotten off the ground.

There was a reason that plaintiff couldn't find an expert to testify that negligence occurred. The intestine was never mistakenly "attached to the vagina."

Informed consent: Must the risk of death be discussed?

Last week, I wrote about the tragic case of a young girl in California who was declared brain-dead after what most media sources called a tonsillectomy. In fact, the patient had a much more extensive procedure for treatment of obstructive sleep apnea. In addition to having her tonsils removed, she underwent a uvulopalatopharyngoplasty (UPPP) and resection (removal) of her inferior nasal turbinate bones.

As I stated before, I will not speculate on whether the surgery was indicated or why the patient died because none of the facts about those two aspects of the case have been disclosed.

Questions have arisen about the informed consent discussion that may have been held with the patient's mother. We obviously do not know exactly what was said. However, some have wondered whether the possibility of death after this procedure was part of the consent process.

The mortality rates for a simple tonsillectomy range from about 1 in 10,000 to 1 in 35,000. For UPPP, the mortality rate for adults is generally quoted at 0.2% or 1 in 500. I was unable to find any information about the mortality rate for that operation in the pediatric age group.

The issue then is—must a surgeon mention death as a possible outcome after this type of surgery?

According to a medico-legal encyclopedia, the disclosure of risk depends on two general elements.

Would other doctors have disclosed the risk of death and would the patient (or family) have made a different decision if the risk of death had been discussed?

A paper from Duke University states the following: "In fact, there is no dictum that death must be included among the risks of every surgical procedure; when the risk of death is so low as to be unexpected and highly improbable, including it may actually be misleading." What they mean is that patients could be unnecessarily dissuaded from agreeing to a procedure they really needed.

The authors of the Duke paper go on to say that the question of how high of a risk requires disclosure is debatable, "but it may range from any chance of death to about 0.1% risk as a reasonable threshold for inclusion." Keep in mind that this is merely an opinion by three surgeons and a medical oncologist.

An informed consent guideline from Harvard says, "The type and the number of risks to be disclosed should depend on the significance the doctor's patient would attach to such risks in deciding whether to consent to the procedure or treatment. (The court recognizes that such disclosure does not apply to all 'remotely possibly risks of proposed treatment' which may be 'almost without limit.')"

The website of Dr. Erik J. Kezirian, a prominent expert in sleep apnea surgery, has information pertinent to this issue. The surgeon lists a number of complications related to UPPP including bleeding, infection, difficulty swallowing, tooth injury, and continued snoring. Notably absent is any mention of death.

I had always heard that adverse outcomes occurring less than 1% of the time need not be part of an informed consent discussion. Again, this is only an opinion. There is no agreed upon standard.

If a malpractice suit is filed, I doubt it will hinge on informed consent, but it is useful to discuss the topic. 

What do you think about informed consent and the risk of death?

[Disclaimer: I am not a lawyer and this is not legal advice.]

A lawyer tries (unsuccessfully) to take down Skeptical Scalpel

A trial lawyer named Max Kennerly has taken issue with a piece I wrote called "Can defensive medicine ever be stopped?" It appeared last week on KevinMD.

On his blog, he he says defensive medicine is a "myth" and accuses me of many wrongs, too numerous to detail here.

I will address a few of them.

He read my post but apparently did so selectively. He failed to note that I agreed with him that tort reform did not reduce the cost of medical care in states that have enacted it. This was documented by a paper from the National Center for Policy Analysis which I cited.

He went on to criticize three brief examples of defensive medicine that I mentioned in my post—about abdominal pain, a wound infection after colon surgery, and chest pain.

Mr. Kennerly writes, "a young girl with lower abdominal pain gets an ultrasound for appendicitis (among the least invasive, least expensive, and most helpful tests in history — remember this funny GE ad for their portable ultrasound?)."

Why do misconceptions about brain death persist?

On December 9, 2013, 13-year-old Jahi McMath underwent a tonsillectomy at a children's hospital in Oakland, California. She suffered postoperative hemorrhage and became comatose. She was declared brain-dead by doctors at that hospital on December 12th. This was later confirmed by a court-appointed outside consultant.

There are many issues surrounding this case. Was the tonsillectomy indicated? Some stories reported that it was done to improve her obstructive sleep apnea. Why wasn't she successfully rescued from her complication of bleeding? I can find no discussion about how she could have bled so much without intervention in any article about the case.

But one of the most distressing aspects of this poor child's demise is that despite many years of experience with brain death, it is still misunderstood by laypeople, the courts, and even some medical providers.

As of December 26th, 14 days after the brain death declaration, the child remains on a mechanical ventilator with apparently stable vital signs.

A lawyer for the family had petitioned the court for the outside expert's consultation and to prevent the hospital from disconnecting the child's life-support.

After all this time, a judge has finally ruled that the hospital may remove the life-support but not until December 30th to give the family time to appeal to a higher court.

What a shame. It is bad enough that this girl has died. But to realize that in 2013, society still cannot deal with the concept that brain death is "death" makes it sadder.

It may be a problem of terminology. When we say "brain-death," it somehow does not sound like real death.

The problem is compounded by other words used in this post such as "life-support" and "vital signs." These terms perpetuate the mistaken notion that life is still present.

The Harvard Criteria for brain death were written in 1968. That is 45 years ago. Why are we still debating this in court?

The answer is, we have failed to properly educate the public about this relatively straightforward fact.

It must be extremely difficult for this child's family to accept that the girl is dead after what many have called "routine" surgery. I feel very bad for them.

Something that has not been mentioned in any report about this case is another issue that society has trouble handling—organ donation. Perhaps the family should consider this. Those who have been in similar situations say that donating organs gives them some comfort in that part of their loved one lives on and that someone else has been helped.

I hope the higher court does the right thing and declines to review the case and that the family can eventually find peace.

UPDATE: December 27, 2013

According to the San Jose Mercury-News, the family says it has found a facility willing to provide long-term care for the girl. They want doctors at the Children's Hospital to perform a tracheostomy and a gastrostomy (semi-permanent feeding tube), which they have declined to do because it is futile.

The child's uncle is quoted, "It looks like we may have found a miracle to keep Jahi alive and to give her another fighting chance to wake up." I'm sorry to say that is not going to happen.

Also, the original surgery was much more than just a tonsillectomy. The girl underwent a full obstructive sleep apnea operation consisting of the following: adenoidectomy, tonsillectomy,  uvulopalatopharyngloplasty (UPPP), and submucous resection of bilateral inferior turbinates of the nose.

University to offer 6-year combined college + law degree

The University of Iowa College of Law has established a new program which will enable students to begin law school after three years of undergraduate study. After six years, the student will have a J.D. degree, and credits earned in the first year of law school will count toward an undergraduate degree.

The school says this is not for everyone, but rather only for the "right" students.

Not only will the right students save a year of college tuition, they will also be able to look for work as Starbucks baristas a year sooner than law school graduates who spend four years getting their undergraduate degrees.

Related posts.

Law school applications are way down.

Law schools start firms in order to employ their graduates.