Making Medical Treatment Decisions for Unrepresented Patients in the ICU. An Official American Thoracic Society/American Geriatrics Society Policy Statement.

Background and Rationale: ICU clinicians regularly care for patients who lack capacity, an applicable advance directive, and an available surrogate decision-maker. Although there is no consensus on terminology, we refer to these patients as "unrepresented." There is considerable controversy about how to make treatment decisions for these patients, and there is significant variability in both law and clinical practice.Purpose and Objectives: This multisociety statement provides clinicians and hospital administrators with recommendations for decision-making on behalf of unrepresented patients in the critical care setting.Methods: An interprofessional, multidisciplinary expert committee developed this policy statement by using an iterative consensus process with a diverse working group representing critical care medicine, palliative care, pediatric medicine, nursing, social work, gerontology, geriatrics, patient advocacy, bioethics, philosophy, elder law, and health law.Main Results: The committee designed its policy recommendations to promote five ethical goals: 1) to protect highly vulnerable patients, 2) to demonstrate respect for persons, 3) to provide appropriate medical care, 4) to safeguard against unacceptable discrimination, and 5) to avoid undue influence of competing obligations and conflicting interests. These recommendations also are intended to strike an appropriate balance between excessive and insufficient procedural safeguards. The committee makes the following recommendations: 1) institutions should offer advance care planning to prevent patients at high risk for becoming unrepresented from meeting this definition; 2) institutions should implement strategies to determine whether seemingly unrepresented patients are actually unrepresented, including careful capacity assessments and diligent searches for potential surrogates; 3) institutions should manage decision-making for unrepresented patients using input from a diverse interprofessional, multidisciplinary committee rather than ad hoc by treating clinicians; 4) institutions should use all available information on the patient's preferences and values to guide treatment decisions; 5) institutions should manage decision-making for unrepresented patients using a fair process that comports with procedural due process; 6) institutions should employ this fair process even when state law authorizes procedures with less oversight.Conclusions: This multisociety statement provides guidance for clinicians and hospital administrators on medical decision-making for unrepresented patients in the critical care setting.

Teaching legal competencies through an individualized elective in medicine and law.

Medical education, including education intended to prepare future physicians to care to older individuals, should include development and implementation of competencies relating to a physician's ability to understand and interact with the legal environment and legal actors who will affect the practice of medicine. The wisdom of integrating legal knowledge into the medical curriculum has been documented, and literature discusses the content and methods of teaching medical students and residents about law and the legal system. This article describes one unique but replicable, pedagogical approach to preparing future physicians to thrive in their inevitably interprofessional careers as they fulfill the fiduciary responsibilities that lie at the heart of their therapeutic and advocacy relationships with older patients.

I'm getting turned off: emerging consensus on deactivating cardiac implantable electronic devices.

The surgical insertion of permanent heart rhythm (resynchronization) devices within individuals who have chronic cardiac deficiencies is widespread and increasing. It is predictable that some individuals who have had a permanent heart rhythm device implanted will subsequently reach a point, physically and/or emotionally, at which they (or their surrogates) indicate the desire that their own resynchronization be removed or deactivated. Despite continuing controversy, a professional international consensus has begun to emerge over the past few years, concerning the fundamental legal and ethical principles that ought to guide clinical practice regarding the deactivation of cardiac implantable electrical devices (CIEDs). The central legal and ethical principles of the emerging professional consensus in this sphere are briefly summarized in this article, along with some thoughts about the challenges of translating those principles into clinical practice for specific patients.

Older persons and compromised decisional capacity: the role of public policy in defining and developing core professional competencies.

Issues frequently arise concerning the cognitive and emotional ability of older individuals to make certain legally significant decisions. In confronting these issues, the professional involvement of both attorneys and physicians (and other health care professionals), acting both individually and collaboratively, is desirable. This article describes the possible contributions of public policy in developing, through fostering innovations in medical and legal education, core competencies for physicians and attorneys that are essential to improving interprofessional collaboration on behalf of older individuals suspected of being compromised in their ability to make certain significant decisions. Additionally, ideas are suggested to address certain aspects of the current policy environment that may inhibit attorneys and physicians from optimal interprofessional interaction in this sphere.

The POLST paradigm for patients with advanced, irreversible illness: a therapeutic jurisprudence basis for legal codification.

The Physician Orders for Life Sustaining Treatment (POLST) Paradigm attempts to improve the experiences of individuals with serious, irreversible illness, and their families. In some jurisdictions, the POLST is authorized in law. In other jurisdictions, efforts are underway or contemplated to encourage use of POLST for appropriate individuals, but the concept is not yet in law. An argument needs to be made to policymakers that POLST will have a therapeutic effect on patients and families. In making that argument, the analytical lens of therapeutic jurisprudence (TJ) may be useful. This article proposes a POLST legal strategy using TJ. TJ may be used to evaluate data regarding psychological effects on patients and families who are experiencing medical care with or without POLST; the TJ analysis then should be considered by policymakers in enacting POLST laws to codify clinical consensus, and in turn the law so enacted would exert a positive impact on therapeutic benefit-producing behavior by health care providers.

For love, legacy, or pay: legal and pecuniary aspects of family caregiving.

Most caregiving and companionship provided by family members and friends to older individuals in home environments occurs because of the caregiver's feelings of ethical and emotional obligation and attachment. From a legal perspective, though, it might be ill-advised for an informal caregiver to admit such a motivation. Building on a recently published study of relevant litigation, this essay discusses changing cultural and legal aspects of family caregiving when there is some expectation of pay, property, or fuiture financial legacy in return for the caregiver's present work and sacrifices.

Still dying after all these years: a classical library for contemporary controversies.

A review and discussion of Death, Dying and the Ending of Life, edited by Margaret P. Battin, Leslie P. Francis, and Bruce M. Landesman. Ashgate Publishing, 2007. The many philosophical ethical legal, and social aspects of death and the dying process remain deeply controversial despite substantial and continuous public discussion and debate about them. Springing from an in-depth review of a newly-published compilation of some of the most seminal writings in this area, the author in this essay reflects on and systematically analyzes how the classical literature of the past millennium has set the intellectual stage and in many respects established the rules of engagement for modern discourse on end-of-life decisions and decision-making.

Regulating payment for home care companionship services: legal authority and public policy.

On June 11, 2007, the U.S. Supreme Court issued a ruling in the case of Long Island Care at Home Ltd. v. Coke that upheld a federal regulation exempting employees of third-party agencies who provide home-based "companionship services" to disabled persons from the protections of the minimum wage and overtime pay provisions of the Fair Labor Standards Act. This article discusses the legal issues argued in the case and the legal rationales for the court's decision. The article then identifies the important public policy questions involving the maintenance of a sufficient, competent home care workforce that were left unanswered by the legal ruling and outlines some of the pragmatic implications of potential responses to these public policy questions.

Medicaid planning, estate recovery, and alternatives for long-term care financing: identifying the ethical issues.

In anticipation of the escalating costs of long-term care, consumers and the federal and state governments are engaging in a variety of strategies intended to preserve the financial solvency of the respective parties. For the consumer, this may mean planning in a way designed to maximize one's potential future eligibility for government support, whereas the federal government tries to limit those planning activities inspired by public benefits considerations and the states attempt to recover their long-term care expenses from the estates of deceased consumers whose long-term care needs the state had earlier supported. All of these strategies have important and controversial public policy implications. The public policy debate surrounding these strategies ought to be ethically informed. This article sets out to identify and outline some of the main ethical questions engendered by individual Medicaid planning on one hand, and state estate recovery efforts on the other. It concludes that neither of these approaches to the challenge of long-term care financing is very ethically palatable.

Front office staff as medical educators, risk creators, and risk managers.

The author describes his own negative series of encounters with the front office staff of a large specialty medical practice during a recent lengthy episode of significant medical distress. The author suggests several reasons, including legal risk management, that medical students should be exposed as part of their education to the interactions of patients with front office staffs (not just physicians) to get a fuller picture of patients' actual experiences with the health care system.

Defensive medicine: No wonder policymakers are confused.

Discussions regarding defensive medical practice often result in proposals for public policy actions. Such proposals generally are premised on assumptions about defensive medicine, namely, that it (a) is driven by physicians' legal anxieties, (b) constitutes bad medical practice, (c) drives up health care costs, (d) varies depending on a jurisdiction's particular tort law climate, (e) depends on medical specialty and a physician's own prior experience as a malpractice defendant, and (f) is a rational response to actual legal risks confronting physicians. This article examines a sample of recent literature focusing on defensive medicine and finds that the messages conveyed vary widely, helping to explain the confusion experienced by many policymakers trying to improve the quality and affordability of health care.

Overcoming Legal Impediments to Physician Orders for Life-Sustaining Treatment.

The Physician Orders for Life-Sustaining Treatment (POLST), otherwise known as the POLST paradigm, represents the next generation in end-of-life (EOL) planning for certain patients who wish to exercise prospective control over their own medical treatment in their final days. As is true for any physician treatment orders, a POLST is written in consultation with the patient or patient's surrogate. There are a number of practical impediments to widespread adoption and implementation of the POLST paradigm in medical practice. One of these impediments has to do with some physicians' anxiety about potential negative legal repercussions they might suffer for writing or following a patient's POLST; this is the focus of the present article. After describing the POLST paradigm and physicians' anxieties about it, this article argues that the feared potential negative legal consequences of writing or following a patient's POLST are not well founded. Instead of succumbing to legal and ethical paralysis, resulting in the failure to integrate the POLST paradigm robustly into practice, physicians should feel comfortable under current and developing law to write and honor POLSTs for appropriate patients. This article explains the basis for such physician comfort.

Medical Malpractice in Dermatology-Part I: Reducing the Risks of a Lawsuit.

Malpractice risk is a common source of concern for the practicing physician. Dermatologists experience fewer lawsuits than most other specialists in medicine, but the risk is not negligible. All physicians should familiarize themselves with areas of potential risk and avoid medico-legal pitfalls. We present Part I of a two-part series addressing medico-legal questions common to most practitioners that cause a great deal of anxiety. Part I will focus upon risk management and prevention of future malpractice lawsuits, and Part II deals with suggestions and guidance once a lawsuit occurs. Herein, we discuss the primary sources of malpractice lawsuits delivered against healthcare practitioners including issues with informed consent, patient noncompliance, medical negligence, and inappropriate documentation, including use of electronic medical records. The overall goal is to effectively avoid these common sources of litigation. The risk management strategies discussed in this paper are relevant to the everyday practitioner and may offer physicians some degree of protection from potential liability.

Medical Malpractice in Dermatology-Part II: What To Do Once You Have Been Served with a Lawsuit.

Facing a malpractice lawsuit can be a daunting and traumatic experience for healthcare practitioners, with most clinicians naïve to the legal landscape. It is crucial for physicians to know and understand the malpractice system and his or her role once challenged with litigation. We present part II of a two-part series addressing the most common medicolegal questions that cause a great deal of anxiety. Part I focused upon risk-management strategies and prevention of malpractice lawsuits, whereas part II provides helpful suggestions and guidance for the physician who has been served with a lawsuit complaint. Herein, we address the best approach concerning what to do and what not to do after receipt of a legal claim, during the deposition, and during the trial phases. We also discuss routine concerns that may arise during the development of the case, including the personal, financial, and career implications of a malpractice lawsuit and how these can be best managed. The defense strategies discussed in this paper are not a guide separate from legal representation to winning a lawsuit, but may help physicians prepare for and cope with a medical malpractice lawsuit. This article is written from a US perspective, and therefore not all of the statements made herein will be applicable in other countries. Within the USA, medical practitioners must be familiar with their own state and local laws and should consult with their own legal counsel to obtain advice about specific questions.

Regulating hematology/oncology research involving human participants.

The conduct of hematology/oncology research, particularly clinical trials involving human participants, is an extensively regulated enterprise. Professionals in the specialty of hematology/oncology have important stakes in the success of biomedical research endeavors. Knowledge about and compliance strategies regarding the pertinent regulatory parameters are essential for avoiding negative legal repercussions for involved professionals. At the same time, there is a need to be aware of and actively resist the danger that strong [legal] protectionism might inadvertently result in undermining physician investigators' sense of personal moral responsibility in the conduct of human experiments. For all the limitations of that virtue in the protection of human subjects, it is surely not one that we would want medical scientists to be without [47]. Members of the potential participant pool, financial sponsors, and the general public must be convinced that everyone involved in the research enterprise is committed to operating within acceptable legal and ethical boundaries if the atmosphere of confidence and trust that is indispensable to the continued process and progress of investigation aimed at extending and improving quality of life for all of us in the future is to continue and flourish [48].