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Legal Update:

Medical Futility

Thaddeus M. Pope, J.D., Ph.D.Widener University Law School

ASBH Annual Meeting (San Diego)October 21, 2010

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Baseline

Courts (2009-2010)

Legislation (2009-2010)

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Baseline

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Bad law

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Mass. Med. Society (Nov. 2008)

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Consensus

Intractable

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“Remove the __, and I will sue you.”

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“Why they follow the instructions of SDMs instead of doing what they feel is appropriate, almost all cited a lack of legal support.”

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Court

Cases

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Damages

Injunctions

Surrogate selection

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Damages

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Providers have won almost every single damages case brought after unilateral w/h, w/d

State HCDA

Battery

Medical malpractice

Informed consent

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Providers typically only lose on

claims for IIED

Secretive

Insensitive

Outrageous

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Luce is confirming

the trend of

unsuccessful

lawsuits against

providers

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Risk > 0

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But the process itself

can be punishment

Even prevailing parties

pay transaction costs

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Injunctions

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Courts frequently grant

temporary injunctions to

preserve status quo

But patients often die before

adjudication on the merits

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»amex

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Ruben Betancourt

vs.

Trinitas Hospital

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73yo male

PVS

COPD

End-stage renal disease

Hypertensive cardiovascular disease

Stage 4 decubitus ulcers

Osteo-myeletitus

Diabetes

Parchment- like skin

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Intramural process

No consensus

Unilateral withdrawal DNR order written Dialysis port removed

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January 21, 2009

Jacqueline files complaint

January 23, 2009

Court issues TRO

February 10, 2009

Court extends TRO

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January – February 2009

Evidentiary hearings

Medical expert witnesses

Family witnesses

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March 4, 2009

Permanent injunction on the merits

August 2009

Appeal: NJHA, MSNJ, NJP, GNYHA

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August 13, 2010

Appellate court

refuses to reverse

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Surrogate

Selection

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A proxy shall act in accordance

1. “directive . . . decisions”

2. “the maker’s . . . wishes”

3. “maker’s best interests”

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Helga Wanglie

(Minn. 1991)

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Dorothy Livadas

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Bernstein v. Superior Court of Ventura County (Feb. 2, 2009).

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Court to

Barbara Howe:

Your own personal issues are “impacting your decisions”

“Refocus your assessment”

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OntarioCapacity

and Consent

Board

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Limitations

of surrogate

replacement

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Legislation

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Texas as model

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S.B. 1114 (Mar. 2009)

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Thaddeus Mason Pope Associate Professor of LawWidener University School of Law4601 Concord Pike ● L325Wilmington, DE 19803T 302-477-2230F 901-202-7549E tmpope@widener.eduW www.thaddeuspope.com