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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. Baseline Courts (2009-2010) Legislation (2009-2010). Baseline. Bad law. Mass. Med. Society (Nov. 2008). Consensus. Intractable. - PowerPoint PPT Presentation
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1
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 [email protected] www.thaddeuspope.com