Page 162 - Hall et al (2015) Principles of Critical Care-McGraw-Hill

128 PART 1: An Overview of the Approach to and Organization of Critical Care

victim who was kept alive in a permanent vegetative state within a nonbeneficial. 31-33 On the very rare occasions that courts have been
government (Missouri) long-term care facility, through the use of feed- involved prospectively with the futility issue, their holdings have been
ing and hydration tubes. Her parents asked that this intervention be confusing, inconsistent, and poorly reasoned. However, no court has
discontinued, a request they claimed was consistent with the patient’s ever imposed liability for failure to begin or perpetuate futile interven-
previously expressed (although not documented) wishes. The attend- tions for a critically ill patient, even in the face of family insistence on
ing physicians refused to honor this request, and the Missouri Supreme doing everything technologically possible. In practice, clinicians usu-
Court upheld the trial court decision and denied the parents’ request to ally seem to take the path of least resistance in such circumstances and
discontinue treatment. “treat the family,” often out of misapprehension about potential liability
On appeal, the US Supreme Court held that a mentally capable adult exposure. In the vast majority of cases, better physician-family com-
has a fundamental constitutional right, under the liberty provision of the munication, in which the realistic implications of “doing everything
Fourteenth Amendment’s due process clause, to make personal medical possible” are spelled out clearly, can obviate serious disagreement over
decisions, even regarding life-prolonging treatments including artificial how to proceed. 34
feeding and hydration. For decisionally incapacitated patients, though,
the court ruled that the public interest in preserving life is strong enough INSTITUTIONAL PROTOCOLS AND SUPPORTS
to permit a state, if the state so chooses, to require—before the state
must comply with a surrogate’s instructions to withdraw life-prolonging A broad panoply of tools for guiding life-support decisions in critical
medical treatment—“clear and convincing” evidence that the patient care situations have been published. These tools vary widely in their
would want that treatment withdrawn if the patient were currently genesis, authorship, format, focus, and practicality. 35
able to make and express an autonomous choice. Presumably, a writ- Hospitals have adopted written policies and procedures concerning
ten declaration made by the patient while the patient was decisionally patient admission to, retention in, and discharge from ICUs. The ability
capable would suffice as evidence of treatment preference in the event of physicians to consult institutional guidelines generally leads to better,
of subsequent incapacity. Under the Cruzan decision, states are also free more consistent decisions that are easier to defend against later claims of
to set lower standards of proof than “clear and convincing” evidence for impropriety. Clear protocols facilitate communication and cooperation
36
incapacitated patients, namely proof by a preponderance of the evidence among members of the health care team, decreasing both inadvertent
(in other words, greater than a 51% likelihood). mistakes and interpersonal tension. Institutional protocols are also
One form of treatment limitation around which there is a high degree essential as inevitable public and private discussions regarding health
of current consensus is the Do-Not-Resuscitate (DNR) or No Code care rationing take on increasing urgency. 37
order, which instructs caregivers to refrain from initiating cardiopul- The development and dissemination of institutional protocols regard-
monary resuscitation (CPR) for a patient who suffers an anticipated ing critical care are required by the federal Patient Self-Determination
cardiac arrest. There have been very few legal cases in this arena, but the Act (PSDA) and some state statutes. Such protocols are also required
38
well-accepted rule is that a decisionally capable patient has the right to for hospital accreditation by the Joint Commission. 39
refuse CPR, and that surrogates may elect to forego CPR for a patient Critical care physicians must be very familiar with their own institu-
if the likely burdens of this intervention to the patient would be dispro- tions’ formal policies and procedures, and must ensure familiarity with
portionate to any benefits (eg, mere continued existence until the next them on the part of nurses and other team members. Ideally, members of
arrest) that might be derived. As is true for all medical decisions, a DNR the medical staff should contribute to the drafting, continuing reevalu-
order should be created only after a thorough consultation with the ation, and revision of institutional protocols. Questions regarding the
patient or surrogate and should be clearly documented in the medical meaning or implementation of these protocols should be addressed in
record. A DNR order may be included as part of a more comprehensive a timely fashion (before a crisis erupts) to the hospital’s legal counsel
23
POLST (discussed earlier). and/or clinical ethics consultant. 40
When the patient or surrogate declines aggressive, technologically Similarly, the physician must be knowledgeable about the operation
oriented interventions, the physician still has the legal obligation to of the hospital’s institutional ethics committee (IEC). The past several
provide basic palliative (comfort, pain control, and emotional support) decades have seen a proliferation within health care institutions of enti-
and hygiene measures. Failure to do so could constitute negligence or ties designed to provide education, formulate policies and procedures,
24
form the basis for professional disciplinary action. Good palliative care and offer advice regarding particular cases and issues with serious
may sometimes include the practice of palliative sedation (also called bioethical implications. Joint Commission standards require that hos-
total, terminal, or controlled sedation) for intractable distress or suffer- pitals have in place a mechanism for carrying out these functions, and
ing during the dying process. 25 a few states specifically require the existence of an IEC in each licensed
In every American jurisdiction, it is a criminal offense (as a form of health care facility. Although the emphasis of IECs is, and ought to
homicide) for a physician to engage in positive or affirmative actions be, on better ethical decision making, salutary legal benefits may also
that are intended to hasten a patient’s death (such as administering a result from their activities. Effective use of an IEC may help keep out
lethal injection), even if the patient requested such action. Similarly, of the judicial system claims that otherwise might have been initiated
26
in every state except Oregon, Washington, and Montana, it is illegal by relatives or health care team members who feel that their opinions
27
for a physician to comply with a patient’s request that the physician have not been adequately taken into account. Moreover, in the relatively
supply the patient with the means to hasten his or her own death (such unlikely event of the informal decision-making process breaking down
as writing a prescription for a lethal dose of a medication, knowing and court involvement being invoked, using an IEC may act as powerful
that the patient intends to commit suicide by ingesting that lethal evidence of the provider’s good faith and appropriate concern for patient
dose). The US Supreme Court has soundly rejected the argument autonomy and welfare.
28
that individuals have any constitutional right to physician-assisted
death (PAD). 29,30 DETERMINATIONS OF DEATH
The other side of the coin on treatment decision making is presented
when the patient, or more usually the family, insists on initiation or One inescapable aspect of critical care medicine with important legal
continuation of medical treatment (“doing everything possible”) that implications is the determination and declaration of when a patient
the clinician concludes is futile in terms of benefit to the patient. has died. Traditional definitions of death based on cessation of car-
Neither a patient nor the family has a legal right to, nor does a physi- diorespiratory functioning are no longer sufficient by themselves in
cian owe an obligation to provide, medical treatment that would be light of modern medical technology that frequently can maintain the

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