Dorothy Livadas--New Futile Care Case in New York: Overruling Patient Advance Directives
Labels: Futile Care Theory. Dorothy Livadas. Dishonoring Advance Directives.
This is the future that Futile Care theorists hold for us. If you sign an advance medical directive granting a proxy the right to make your health decisions on your behalf in the event of incapacity--and that proxy wants life support ceased--that decision is sacrosanct, and woe betide the outsider (even other family members) who try to interfere. But, if doctors decide that the proxy's decision to maintain life support is "inappropriate," well then, to hell with the advance directive, and indeed, to hell with the proxy.
Just such a scenario is unfolding today in Rochester. Dorothy Livadas named her daughter Ianthe to be her proxy. But Ianthe is exercising independent judgment requiring life support to continue that the hospital doesn't want to provide, and so the hospital has sued to have her replaced by a proxy more malleable to the hospital's desires. From the story:Dorothy Livadas, 97, lives with the aid of life support. She has not left her hospital bed for seven months.
In healthier times, she signed documents giving her daughter, Ianthe Livadas, the power to make medical, legal, and financial decisions for her. Before entering the hospital in 2005, Dorothy Livadas also signed documents instructing that she be taken off life support if she lapsed into a state where there was no reasonable expectation of recovery.
Now, a dispute over her mother's condition has forced Ianthe Livadas into a five-month legal battle against doctors, attorneys, and the Catholic Family Center. "You don't expect a hospital to be threatening you that they're going to put aside your mother's choice of health care proxy and power of attorney, and replace you," Ianthe said.Although not wishing to comment on the specifics of this case, the head of Intensive Care at Strong Memorial Hospital testified in a courtroom that there is no chance Dorothy will awaken or communicate. A doctor from Rochester General who was called in for a second opinion concurred.
So what, even if true? (And, as we have seen, such categorical pronouncements have often proved false, as in the Jesse Ramirez and Haleigh Poutre cases.) The proxy believes the life of Dorothy is what matters.
Surely courts would not agree! Please. Proxies and family members who value their loved ones lives aren't capable of making "objective decisions," don't you know:However, the courts have ruled that Ianthe Livadas no longer has a say in her mother's care as Justice Harold Galloway awarded custody to Catholic Family Center. He said that Ianthe "fails to appreciate her mother's true medical condition," and that she "lacks the objectivity and insight to make necessary decisions."
Here's proof of a warning I have frequently made: Under Futile Care Theory, patient autonomy is one way street. Advance directives only matter if the proxy makes the "approved" decision. This is the beginning of the creation of a duty to die in which those with the power to decide push aside patients and duly appointed proxies who disagree in order to impose their own bioethical values on the rest of us. There's a term for that; medical tyranny.
One final point: If we are going to have futile care theory imposed on us, this scenario is preferable to star chamber decision making by bioethics committees meeting in private session. At least here, there's a right to appeal and a public proceeding so that the public can be appraised of what is happening. So, if a patient's continued treatment is really torture, this is how it should be handled. But boy, this is a dangerous road that can only threaten the most vulnerable among us. And something should be done about the inequality of funds for lawyers in cases such as this. If a hospital wants to forcibly pull the plug, it should have to pay the legal fees of the family so they don't go bankrupt trying to save their loved one's life.
posted by Wesley J. Smith @ 9:08 AM
17 Comments
17 Comments:
So, question: If she hadn't signed in addition to the proxy the advance directive saying she wanted to be "removed from life support" (no doubt code for nutrition and hydration, among other things) if she had no chance of recovery, would they still have a leg to stand on to be seeking to remove the daughter? Would they try?
A health care proxy is supposed to know and follow the wishes of the patient in question. Indeed, a proxy is supposed to employ a standard of substituted judgement. This states that the surrogate should act according to what the patient would have wanted had he or she understood the circumstances under which treatment or procedures would be provided.
Obviously, it is not always easy to determine what the patient would have wanted. In this case, however, it is. Dorothy not only has a health care proxy, but she also has a living will. She expressly stated what her wishes were: to be taken off life support if she lapsed into a state where there was no reasonable expectation of recovery. Ianthe, unfortunately, is not acting in accordance with what her mother wanted. The hospital is not only legally, but also morally required to replace her as proxy.
Frankly, this is one of my biggest personal fears: to clearly state my wishes for end-of-life care, but have them be overruled by someone who thinks he or she knows better than I do what I want.
** Disclaimer: I'm a physician practicing in Rochester, and I am affiliated with Strong Memorial Hospital.
Actually, Dr. D, my impression of the legal situation (Wesley can correct me if I'm wrong) is that the whole point of a DPA for healthcare is that this person is given the authority to interpret your wishes, including what you have put in writing.
It seems to me that we don't want to go the route of having the courts remove life-sustenance (particularly nutrition and hydration) against the wishes of a proxy on the grounds of the _court's_ interpretation of an advance directive. And in fact, although I have heard of one other case of this kind several years ago, I do not believe it is at all common. Generally, my impression is that when there is both an advance directive and a DPA for healthcare, the advance directive is treated as a guide for the DPA, not as something free-standing that the courts can use to remove care against the wishes of the DPA. So I think your statement that the hospital is legally required to replace Ianthe as proxy is a bit of an overstatement, in terms of precedents.
And as for your great fear, that's why you're supposed to pick someone as your proxy who won't do that.
Yes, it is true that a proxy is given the authority to interpret a patient's wishes. But that authority isn't absolute. In cases where the surrogate's interpretation differs greatly from what appears to be written (which, in my opinion, is what's going on here), the courts need to step in.
As for my great fear, you're also right in that I'm supposed to pick someone who wouldn't do that. I bet Dorothy thought that's exactly what she was doing when she chose Ianthe!
W.Smith: "Here's proof of a warning I have frequently made: Under Futile Care Theory, patient autonomy is one way street. Advance directives only matter if the proxy makes the "approved" decision."
Another strange post coming from an attorney...
(1) This patient left clear instructions about what decisions should be made in this medical situation. The patient is now in that situation but her legal proxy (for whatever reason) will not advocate for her wishes to be followed but rather for her to be treated against her will. In essence, this proxy is asking the doctors to commit a battery on the patient. Last time I checked, this was a crime.
(2) From Cardozo to the present day, the courts have made it very clear that a person has a much stronger legal right to be left alone than he/she does to demand medical care. If this were NOT true, then I know of approximately 45 million Americans who would be very happy to exercise this newly discovered 'right' to demand affordable, preventative healthcare instead of using the Emergency Department. No doubt many more than 45 million would also like to exercise that 'right' to self-prescribe medicines for their own private reasons, regardless of any standard of care. What standard of care? Medically appropriate treatment? Who cares? It's a sacrosanct right!
Wesley, you seem dumbfounded when certain medical treatments are precluded at the end of life -- either by patients/families or physicians -- but say nothing about the restrictions in non-end of life situations. Care to explain the legal difference between the two?
I'm not a NY lawyer and don't know the rules there.
I had a case once where I represented a woman pro bono. The facts were these. She had durable power. But the patient had also signed a living will stating he didn't want life sustaining treatment if he became unconcious.
The fight was over a physician (for an HMO) demanding to do expensive tests on the patient, who had Alzheimer's, so he could prove the patient was PVS and pull the tube.
But the wife, who had the durable power, was a nurse and she knew the score. She had permitted a DNR and no antibiotics, but felt it was against her husband's morals to be dehydrated, as he was a devout Christian. So, she wouldn't consent to the tests!
The doctor was furious, but stymied. So he called a meeting of the ethics committee. It was a very daunting experience--even for me. She could never have faced it alone as an elderly woman.
The committee did not have quasi judicial powers, and when I stood up dramatically to promise to sue if they tried to pull the tube, that got their attention. The deal we worked out was to change doctors. That worked and the patient lived for three years, dying peacefully. The wife was so happy her husband had't been pushed out of life.
Sometimes patients don't know they are at cross purposes in these matters, and that the "objective" physicians might see things dramatically differently than the loving spouse.
These are difficult issues and bad cases make bad law, as we lawyers say. But medical futility threatens the people's trust in medicine.
O: I'm hardly dumbfounded. In fact, I know the score which is why I am so urgent about this matter.
You have slightly misstated the distinction I make. It isn't the end of life issue, it is the life-sustaining issue. Sustaining life when that is what the patient wants is a quintessential purpose of medicine. But Futility changes that, claiming that it isn't life that counts, but quality of life, which are value judgments rather than medical ones. We hear continually that unless there will be a cure or an improvement, the treatment shouldn't be rendered--even if that treatment is successfully sustaining the patient's life.
That turns medicine on its head and destroys patient autonomy that bioethicists are supposed to be so concerned about.
I explore the matter in more detail in Culture of Death.
Sorry, Wesley, but I think you just proved my point. The wife "felt it was against her husband's morals to be dehydrated, as he was a devout Christian." That may be true, but not every member of a religion believes in every dictate of that religion. There are Orthodox rabbis who disagree with each other, etc. So just because your client was a devout Christian doesn't mean that his wife should have automatically come to the conclusion she did.
It sounds like your client's husband was pretty clear what he wanted when he signed his living will.
Doctor_dredd: Perhaps I wasn't clear enough: It was her knowledge of his personal values--as his wife of decades--that made her come to that conclusion, which included her understanidng about his religous beliefs. It wasn't a "Christianity says no, so that's my decision," kind of thing. The living will was silent about ANH.
She knew him better than any other person alive. Her thinking was quite nuanced, which is supported by her willingness to have the DNR and the no antibiotics order placed on the chart.
I mostly agree with dredd here...
I'm going to assume that this gentleman's Living Will had no specific instructions regarding the issue of feeding tubes. If this was the case, then the wife would naturally be the best authority on whether the removal of artificial nutrition & hydration was consistent with the patient's personal beliefs. But it sounds like she wasn't certain either, which is understandable. Most people don't talk about death at all, much less about the specific ways they would find acceptable to die. (Dehydration? Massive infection? MI? Kidney failure?) However, for her to deny confirming neurological tests to accurately determine her husband's diagnosis was highly suspicious. The confirmation of a PVS diagnosis and the subsequent decision of WHAT TO DO based on that confirmation are two completely separate issues and the ethics committee should have treated them as such. But to deny an accurate medical diagnosis for a critically ill (or profoundly handicapped) patient was a big mistake and could well have adversely affected his subsequent course of treatment.
You say this gentleman lived three more years? Did he remain comatose for that entire time? If he did, did you have any misgivings at all as to whether you advocated for the right thing? After all, it sounds like there was a 50/50 chance that he WOULDN'T have wanted to be maintained in a bed-bound coma for three years, in which case you would have assisted in something morally abhorrent, albeit with good intentions.
WS: "Sustaining life when that is what the patient wants is a quintessential purpose of medicine."
Ahh.. "life" is the key term here, and one in which vitalists will continue to defend as including the technological preservation of basic physiologic functions regardless of sentience or prognosis. Thankfully, the majority of Americans disagree with the oversimplified definition because so many of us have seen the horribly extended (and sometimes financially ruinous)deaths that demonstrated nothing remotely close to a sacred reverence for life.
Well, to get into even more detail, the wife didn't believe he was PVS, but wasn't about to let the doctor do expensive and unncessary tests to prove it so he could try and invoke the living will.
I have no regrets and the deep and sincere gratitude of a happy client. I was acting as her attorney, Okakura. But I think her side of the case was also the right side of the case. And it illustrated for me how tough ethics committee hearing can be on "outsiders."
We were in a horseshoe seating arrangement with my client and I alone at the non curved end. Before the meeting began, everyone on the committee--including the angry doctor--were chatting and laughing together. They all knew each other and we were clearly strangers.
I shudder to think what might have happened if the committee had the power to impose its will. It didn't. I blustered. And a mutually satisfactory deal was reached.
And now the widow doesn't have to live with the searing anger of feeling that "the doctors" killed her husband.
Most people make the right decisions in these matters. There is no need to use coersion.
No, O: Vitalists believe that life must be sustained by every means necessary no matter what.
I clearly don't. As a hospice volunteer--remember?--I believe people certainly have the right to refuse life-sustaining treatment. I just don't believe they should be FORCED to refuse life-sustaining treatment.
And believe me, the majority of Americans do not support medical futility, as the Colorado Collective for Medical Decisions found out when it tried to get the public behind futility. When people objected to coercion, the foundation funding the effort pulled the financial plug and decided to rely on education, instead of force. I am all for that.
Besides, doctors are often WRONG when they say there is no prospect for improvement. Medicine isn't that certain.
And besides even more, it isn't doctors or bioethicists' jobs to tell others when a life has lost its value. Decide for yourselves, but not others. No one died and made bioethicists kings and queens.
Again, more details in latest edition of FORCED EXIT and CULTURE OF DEATH.
People with Alzheimer's are not unconscious per se, of course. I mean, I'm not sure why O and Dr. Dredd are assuming that this man in Wesley's story was indeed unconscious.
Moreover, I would think the more crucial question there even if we are talkinga bout what the man meant would be the meaning of "life sustaining treatment."
In my experience many, many people are not giving informed consent to being dehydrated to death when they sign anything of the sort. They think vaguely of "tubes" or of ventilators but do not understand that we are talking about having fluids withdrawn for 14 days until the person dies, and that this is how what they have written will be interpreted. I would say it's *very likely*, even if the man was unconscious, that this was not what he intended under those circumstances and that the wife was in a very good position to know that.
Hi, Lydia. According to the article, the head of the ICU at Strong testified that "there is no chance Dorothy will awaken or communicate." From that, I'm assuming she's unconscious, since I've not had the opportunity to see her myself.
Wesley, do you remember exactly what your client's husband's living will said? I'm curious if there was any mention at all of artificial nutrition or hydration. Obviously his wife would know his religious and moral beliefs, but if there's an actual statement in writing I think that has to take precedence.
Agree with okakura in that the confirmation of the PVS and the decision about what to do should have been separate.
dr_dredd: It has been several years, but my recollection is that it was a general statement, not a specific mandate mentioning different forms of life-sustaining treatment. I think the physician in the case wanted to be able to make a PVS diagnosis in the belief he would then have the trump card over the durable power of attorney to decide the forms of treatment that could be terminated.
What I still don't understand is why he was so angry. I mean furious! His face turned sheet white during the discussions and he almost spoke through clenched teeth when I challenged him in the discussion.
I mean it was clear the wife was desperately trying to do the right thing by her husband under very trying circumstances. She might have been mistaken, but that was no cause for his hyper emotionality. I felt at the time he was furious at having his authority challenged, but since then, I have strived (sometimes poorly)to not to make those kinds of judgments since I don't have access to the inner recesses of people's hearts.
Thanks Ruth. So glad you are here.
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