Tuesday, November 30, 2010

Medical Futility and Maryland Law II

I am on the way back home from spending the day in Baltimore with some 200 healthcare professionals, hospital lawyers, and risk managers, talking about whether there should be changes to the unilateral refusal provisions in the Maryland Health Care Decisions Act.  The general consensus was that changes are needed.  Among other things:
  • Maryland is a treat until transfer state.  Even if the hospital determines inappropriateness, it must continue to provide the disputed treatment until the patient is transferred.  
  • The definition of "medically ineffective" is extremely narrow, effectively encompassing only physiological futility.  
MY attention was drawn to a few things I had not sufficiently grasped before.  For example, Charlie Sabatino pointed out that once a medical inappropriateness determination is made, the transfer could be impaired because that determination could itself affect reimbursement at the potential transferee facility.  In other words, the refusal of transfer may not be due to an agreement of medical inappropriateness but to a concern about taking an expensive patient.  While the patient may be insured at the time of the transfer, she may be imminently uninsured either because of inpatient days, total cap, or because of the dispute resolution process itself.


sibbaldbob said...

Whoa... they wanted to change the definition of "medically ineffective" to capture MORE than "physiological futility"??? If its not physiologically futile, then by definition, it is effective! This is where values come into play and we're talking about how to define 'benefit'. Take a look at the College of Physicians and Surgeons of ON policy on end of life decision making... they clearly indicate that when considering benefit, you must factor in patients goals and values.

Thaddeus Mason Pope, J.D., Ph.D. said...

Correct. Indeed, Larry Schneiderman argues (including in Baltimore yesterday) that even phsyiological futility embodies value judgments.

Yes, once one leaves ineffectiveness and physiological futility, the focus is on "benefit." And that is value-laden.

Yes, patient values and goals matter in such analysis. But they are not dispositive.

Annie said...

I agree with the comments made by sibbaldbob regarding the significance of personal values between "physiological futility" and "futility" as defined by a broader scope.

However, my understanding of the Ontario College of Physicians and Surgeons End of Life Policy is not so favourable.

The Policy does NOT obligate a physician to obtain consent or even to inform the patient/family of his/her determination that treatment is "almost certainly not of "permanent benefit."" It is vital to note that the words "permanent" and "benefit" are not defined by the policy and are therefore left to the interpretation of the physician.

When the physician makes a unilateral decision that treatment is not of "permanent benefit" as is the case for possible futility, the College recommends what the physician "should" do, not what he/she "must"do.

The difference in the language, in my opinion, ultimately means there will be no discipline imposed if a DNR is placed without the patient/family's knowledge, consent or their contribution of personal goals or values.

These kinds of cases never get to trial as the Canadian Court places such little value on the patients in this predicament. Therefore, one can only guess what occurs from the occasional case that makes it into the media.

ronn.huff said...

To sibbaldbob's objection, I would only add that Dr. Schneiderman would make a clear distinction between a treatment that may have a phsiologic effect versus a treatment that provide an effective benefit; that is, an effect that is experienced as beneficial by the patient. Such a notion of "benefit" neccessarily entails quality of life considerations and the values (when known) of the patient.