AMA Journal of Ethics^®

Case

George has lived in rural Georgia for all of his life, third in a family of 7 siblings. He started his own business building houses in his community, and is something of a legend for his kind manner and generosity—"pay us when you can" is a sentence frequently out of his mouth. A portly, balding man of 50, now he supervises more than works on the construction site and presides over his family of 2 daughters and his wife.

One day, George was walking on the frame of the second floor of a large house he was building for people from the city. As his foreman Jim tells it, "I turned around and he was gone." Jim recalls a horrifying moment when he finally saw George lying prone 2 floors below. Jim sent someone for the doctor and tended to George until help arrived.

Dr. Wolcott, an internist and longtime resident of the community, was the first to arrive, and an ambulance came soon after. She accompanied George to the hospital where tests showed that George had suffered a heart attack and subsequent head trauma from the fall with brain swelling due to an intracranial hemorrhage. George was taken by helicopter to a regional trauma center where he was stabilized and put on a ventilator. Later a feeding tube was inserted.

After a week went by, George's family and Dr. Wolcott requested a transfer to their community hospital, so they could be near to George and Dr. Wolcott could monitor his recovery. Dr. Wolcott initially assured them that once the swelling receded, George would recover consciousness, based on what she was told at the hospital by the neurologist who examined George's brain scans.

As the weeks turned into months, however, Dr. Wolcott became more and more convinced that George would not make the recovery she was hoping for and requested a second consult by another neurologist from the city hospital. After fully examining George, the neurologist found that the damage to his brain was more extensive than previously thought and told Dr. Wolcott that George was in a persistent vegetative state (PVS) and unlikely to regain consciousness. Dr. Wolcott broke the difficult news to George's family and counseled them through the process of deciding how to proceed. They agreed with Dr. Wolcott that if George wasn't going to recover consciousness he wouldn't want to be kept alive indefinitely, which he would view as being a burden to his family.

George's family were also members of an influential church community. They asked that the community pray for them and the difficult decision they were making to remove George's life support, a plea that provoked both sympathy and outrage among the large congregation. One member went so far as to contact local television stations about the case, resulting in national media attention. Another, an emergency physician, saw George on television and concluded that the consulting neurologist's findings had to be mistaken. He lobbied the media and George's family to get more specialists to examine him. George's family were left somewhere in the middle, relentlessly tugged by those who wanted them to let George go and those who thought this action was unethical at the least and possibly tantamount to murder.

Dr. Wolcott was unwittingly caught in the public limelight, being asked whether she had advised the family to "pull the plug."

Commentary 2

This hypothetical case raises several questions concerning the medical treatment for a patient in a persistent vegetative state. One of these issues—must such a patient undergo life-prolonging interventions—was first raised in the landmark 1973 case of Karen Ann Quinlan. There, the New Jersey Supreme Court ruled, "No external interest could compel Karen to endure the unendurable, only to vegetate a few measurable months with no realistic possibility of returning to any semblance of cognitive or sapient life."¹ The court's rationale for its ruling was that the constitutional right to privacy was "broad enough to encompass a patient's decision to decline [unwanted] medical treatment."¹

While a competent patient can readily exercise that right, the issue is more complex for the incompetent patient. In such cases, as the Quinlan court noted, the only practical way to prevent destruction of the right is to permit the patient's family to render their best judgment as to what the patient would want. If the choice would be to withdraw a life-prolonging intervention, that decision, the Court declared, "should be accepted by a society, the overwhelming majority of whose members would, we think, in similar circumstances, exercise such a choice in the same way for themselves or for those closest to them."¹

Other jurisdictions have articulated variations on that standard. The Massachusetts Supreme Judicial Court in Saikewicz utilized "substituted judgment" to determine the idiosyncratic values of an individual patient.² Under that rule the decision maker's task is, in the Court's words, "to don the mental mantle of the incompetent" to discern what the patient would choose if able to do so. New York and Missouri adopted the much more rigid requirement of "clear and convincing" evidence of what the once-competent person would want before authorizing the withdrawal of life-sustaining interventions.³ That requirement necessarily precludes the withdrawal of medical interventions from minors, the never-competent and all of those who for whatever reasons have never formally articulated their preferences on the use of life-prolonging treatments.⁴

Interventions or Basic Care?

A second issue in George's situation, one that roiled the nation in the recent Terri Schiavo case, is whether artificial nutrition and fluids are medical interventions to be evaluated like any other medical treatment, or basic care that may not be withheld or withdrawn so long as the patient is physically able to process nutritional support. For those who subscribe to the latter position, the removal of artificial nutrition and fluids is tantamount to "starving the patient to death." Such an action would be criminal negligence or deliberate homicide. The AMA's Council on Ethical and Judicial Affairs rejected that view in an Opinion issued in 1984.⁵ There the Council defined artificial nutrition and fluids as life-sustaining medical treatments, which are no different from other life-prolonging interventions such as mechanical ventilators or dialysis machines. Further, it held that it is not unethical to remove such interventions from patients who are terminally ill or who are in persistent vegetative conditions provided such a decision is made in accordance with the patient's values or "best interests."

That position was subsequently adopted by every state court of final jurisdiction that has ruled on the status of artificial nutrition and hydration. The legal issue was definitively resolved in the United States in the Supreme Court's 1990 Cruzan decision where the Court recognized that under our Constitution a person has "a constitutionally protected right to refuse even potentially life-prolonging artificial nutrition and fluids."³ Justices O'Connor and Brennan specifically cited the AMA's opinion for the proposition that artificial feeding cannot be distinguished from other forms of medical treatment.

No Breach of Duty

With this legal and medical background we have the context for assessing the charges of "murder" in George's case. As the California Court of Appeals put it in Barber v Superior Court, a case in which 2 Los Angeles physicians were indicted for first-degree murder for, at the family's request, removing an intravenous feeding tube from a patient diagnosed as irreversibly unconscious: "The patient has no obligation to undergo the intervention, and therefore the physician no duty to provide it."⁶ Since there was no breach of duty by the physician in withdrawing the IV, there was no criminal act. What occurred rather, was the recognition by the family and physicians that there is no need to utilize medical interventions to prolong the life of a patient who is dying or one for whom there is no realistic expectation of return to a functioning, cognitive existence.

Another issue raised in the case is the accuracy of the diagnosis of persistent vegetative state. Any diagnosis is, of course, subject to the standards within the profession for adequacy and accuracy. Those standards require a trained diagnostician making the assessment based on the evidence. That standard was met in this case.

Nothing would justify an uninvolved physician's making a diagnosis on a patient whom he has not examined and whose records he has not reviewed, nor for publicly challenging the findings of a well-qualified neurologist's "full examination." This is particularly true of the due diligence that would accompany a neurological examination done for a second opinion.

An outside physician, if asked by the patient's family, might advise that they ought to have the diagnosis "confirmed" by another well-qualified neurologist. If in the extreme case it appears to someone, including one licensed to practice medicine, that the treating doctor's actions are a violation of the law, the proper recourse, as the Florida State Supreme Court made clear in In re Dubreuil, is for that party to inform the local prosecutor.⁷ To otherwise thrust oneself uninvited into a case is to be—in the description the New York Court of Appeals used to characterize the right-to-life attorney who brought the Baby Jane Doe case into the judicial system—an "interloper," ie, one with no relationship to the patient, no personal knowledge of the facts in the case, and no standing to challenge the family's decision.⁸

Nor is there any ethical justification for an outside physician to speak to the media about an individual case other than to explain how a diagnosis is made for a particular condition and to educate the public as to what the literature says about such a diagnosis. This might be done, for example, if there were an interest in the medical condition of someone who was a prominent public figure. Illness itself, however, does not transform a patient into a public person subject to media scrutiny.

For the treating physician, Dr. Wolcott, the patient's privacy rights, HIPAA regulations [9], and the physician's commitment to confidentiality with regard to what she has learned in her interactions with her patient preclude her making any public comments on the case —other than in the face of a "serious and imminent threat to the health and safety of a person or the public"—without the permission of the patient or the patient's proxy.

The license to practice medicine gives one the awesome responsibility of acting for the best interests of his or her patient. It does not transform the individual into society's Don Quixote. Physicians might well heed the words of Justice Benjamin Cardozo in The Nature of the Judicial Process where, writing on the role of a judge, Cardozo notes, "[The judge] is not to be a knight-errant, roaming at will in pursuit of his own idea of beauty or of goodness...He is not to yield to spasmodic sentiment, or to vague and unregulated benevolence."¹⁰