Will Selecting Surrogate Decision-Makers for Dying Patients Reduce Futile Care Disputes?

Thaddeus Pope -- ya'll know I'm a fan -- has a new article in the St. Louis Journal of Health Law and Policy addressing the selection of health care proxies, or surrogates, as a means of preventing futile care disputes. When parties surrounding a dying patient disagree about what medical treatments to pursue, if any, law suits can ensue. Pope examines the use of surrogates to reduce the chance of these conflicts, citing both benefits and detriments, and gives us a summary of state laws.

William Colby, the lawyer for Nancy Cruzan's family, writes in Unplugged that the definition of death has changed so drastically in such a short span of time that laws, hospital best practices, and the public, forced to reckon with these changes, have not been able to keep up. Pope's work is always a reminder that the issues surrounding patients' rights and futile care are not straight-forward or simple and that they are constantly evolving.

You can read the full article here

You can read the abstract at Pope's site, Medical Futility Blog

Patients' Rights at Catholic Hospitals: Take Phoenix for Example

I hope it's a good omen for 2011 that Becky Garrison's article for The Guardian about the excommunication of Sister Margaret McBride is getting such attention. Perhaps the crisis of patient's rights that results when health care is provided with a denominational bias will be addressed?

Here's the nitty-gritty of the story: Sister McBride and her colleagues approved an abortion to save the life of a pregnant mother of three. The local Bishop, Thomas Olmsted, objected to the procedure, saying that the hospital and sister were treating an unborn child as a disease. That was last November. Last week, Olmsted revoked the hospital's Catholic status.

This rift between practitioners of health care and the Catholic Church is not about to go away any time soon. There are about 624 Catholic hospitals in the U.S. The Catholic Healthcare Association, state laws, and individual doctors and practitioners are increasingly at odds with the more conservative bishops who enforce adherence to the Church's 72 Ethical and Religious Directives. These directives, written by the United States Conference of Catholic Bishops, are enforced by the bishop in the area where hospitals operate. If the bishop is opposed to certain medical practices and highly involved with the hospital's operations, the rights of patients can be grossly curtailed.

Here are just a few scenarios that take place across the country every day:

- a rape victim is not told that she can prevent pregnancy by taking emergency contraception, nor is she referred to a doctor or emergency room willing to provide EC

- women are denied tubal ligations at the time of birth (or any other time and are not referred to alternative services), when the procedure would be easiest and not require a second invasive operation

- patients are not informed of how to prevent STDs, AIDS, or unwanted pregnancies, nor are they referred to appropriate services

- the hospital retains the right to decide when a dying patient should be removed from artificial nutrition and hydration, not the patient, the patient's advance directive, nor their family

As Becky writes, CHA broke with the USCCB by supporting the Obama Administration's health care bill, despite the latter's claim that the new bill would skirt the Hyde Amendment (which prohibits use of federal funds for abortion; the amendment is an annually renewed clause applied specifically to Medicaid funding).

The rift between bishops and medical practitioners can only widen as the Church works to bring hospitals in line with their doctrine, doctrine that often runs afoul of federal and state laws protecting patients' rights.

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