Doctor's request to end patient's care denied

A column analyzing the impact of recent court decisions on physicians

By Bonnie Boothis a longtime staffer and former editor of the Professional Issues section, left the paper to study law. She wrote the "In the Courts" column during 2005-08. Posted June 12, 2006.

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There are few controversies in medicine that stir as much emotion as whether to withhold extraordinary measures being used to keep a seriously ill patient alive. Physicians and hospital ethics committees agree that in the best-case scenarios, patients have made those treatment wishes known, preferably in writing, in advance of becoming incapable of conveying them to others.

Failing that, they said, they hope for a consensus among relatives that the patient's condition is irreversible and for an agreement among them about what the patient would have wanted to happen next.

Physicians, nurses and others who treat patients at the end of their lives generally prefer to keep these decisions near the bedside and out of the courtroom.

Paul Hofmann, DrPH, president of the Hofmann Healthcare Group in Moraga, Calif., puts it most succinctly when he says: "The general preference is for not engaging judges or courts to begin with."

Michigan Judge Frank Willis takes no offense at hearing that his courtroom is a less-than-favored last resort for these kinds of decisions.

After all, he noted, decisions about whether to use extreme measures to extend life involve a lot of turmoil and affect him emotionally as well. But, he said, his job is to handle such cases, and he doesn't back away from the duty.

Willis, who is a probate judge in Van Buren County, recently found himself called upon, for the third time in his 25 years on the bench, to decide whether to withhold extraordinary measures being used to keep a seriously ill patient alive.

But this time the request came from a physician, which further complicated the matter because the physician was not the patient's relative or legal guardian.

Brian Drozdowski, MD, an internist in Allegan, Mich., asked Willis to allow 97-year-old Hazel Wagner to be taken off a ventilator and have her feeding tube removed. Wagner, who already had kidney failure and dementia, had recently had a heart attack. In his request, Dr. Drozdowski said that Wagner had no chance of a meaningful recovery.

Willis refused to grant Dr. Drozdowski's petition, and Wagner was moved to another hospital. Her case highlights several issues that can complicate decisions about end-of-life care for people 65 and older -- a portion of the population that is projected to increase by 147% between 2000 and 2050.

Wagner left no instructions and, by most accounts, had given no solid verbal indication of whether she would want to be kept alive using a feeding tube or ventilator. She never married and had no immediate relatives. A legal guardian was appointed for her in 2003 when she was declared mentally incapacitated. The guardian had no idea of Wagner's wishes either.

In Wagner's case, a judge was the only one who could make the decision about her future. In states where end-of-life issues are not governed by statute, judges look to common law precedent when deciding these cases.

Drawing on common law

Barbara Hughes, a board member of the National Academy of Elder Law Attorneys and a partner in Hill, Glowacki, Jaeger and Hughes in Madison, Wis., said judges use a couple of different standards developed by the common law. Which one is used is often dependent on jurisdiction.

Some judges use the "best interest" standard, an objective analysis under which the benefits and burdens to the patient are assessed in conjunction with any statements the patient might have made. Hughes said this test is easier to apply when the life-extending treatments are causing the patient pain and the "best interest" may be clear.

The second method is "substitute judgment," under which the surrogate decision-maker tries to determine, with as much specificity as possible, what the incompetent patient would do if he or she were competent to make the decision. This standard has been criticized in legal circles as a "legal fiction" that, in reality, substitutes the surrogate's decision for the patient's, whether to withdraw treatment.

Michigan, however, is one of the states that has an applicable statute that judges must interpret when deciding end-of-life issues.

Willis said Michigan's law does not give a physician the authority to request that a patient's life-sustaining measures be withdrawn. The petition would have had to come from Wagner's guardian, not Dr. Drozdowski or the hospital, Willis said. About 80% of the guardians he sees in his courtroom are volunteers.

Wagner's guardian had never met her before she was declared mentally incapacitated. Whether to stop Wagner's artificial nutrition wasn't a decision the guardian was willing to make, Willis said.

After Dr. Drozdowski's request became public, the guardian did make the decision to move Wagner to another hospital.

In his ruling, Willis outlined the four ways in Michigan to allow a patient's life support measures to be withdrawn.

If a competent patient makes the decision or has previously signed a patient advocate form that gives the power to someone else, then the courts won't become involved. In addition, the Michigan Supreme Court has ruled that a court is not needed if family members agree that the patient would not want to be kept alive by artificial means. And, he said, a judge can order life support withdrawn if, after hearing the evidence, the judge decides that, while competent, the patient clearly indicated that would be his or her wish.

Willis said Michigan courts differ on whether a guardian can allow feeding tubes removed or authorize do-not-resuscitate orders without court approval. He believes the Michigan Legislature intended that guardians get court orders before taking such a step, but he said other Michigan courts have ruled that a court order is not required. It is rare, he said, for a doctor to make such a request.

Debate over the physician's role

Willis said he felt that Dr. Drozdowski was overstepping his bounds, in making the request. He said, in his opinion, that a physician should not advocate to the court for the removal of apparatus being used to keep his or her patient alive. The physician's role, he said, should be to advise the patient's family or guardian, and at most to offer an opinion.

Of course, not everyone sees the physician's duty in this way. Dr. Drozdowski did not return calls requesting comment, but in his court petition he said that Wagner had no chance of a meaningful recovery. He told the Kalamazoo Gazette that he believed it was unethical to keep her alive in her current condition.

Paul O. Farr, MD, president of the Michigan State Medical Society, backed Dr. Drozdowski's right to petition the court on Wagner's behalf. He said it is a physician's duty to advocate for his patients and that the single most important consideration is what is in the best interest of the patient. At Wagner's age, with little or no hope of recovery, pain is a factor that must be considered, he said.

The debate over whether to remove Wagner's feeding tube, at least in this case, would have been nil, had Wagner made her wishes known. As Dr. Hofmann pointed out, the only good thing that comes from the media attention attendant to these types of cases is that people start to think about their own desires for their end-of-life care. Advance directives, health care power of attorney and living wills, while not necessarily foolproof, are a good place to start.

Hughes, for one, never lets a client leave her office without an advance directive. It's a whole lot better than nothing, the elder law attorney said. On that, lawyers, judges and doctors can agree.

Bonnie Booth is a longtime staffer and former editor of the Professional Issues section, left the paper to study law. She wrote the "In the Courts" column during 2005-08.

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