Learning the laws on complicated care

Experts offer advice for difficult decisions.


Your patient, a car crash victim, is in a permanent vegetative state. He has no advance directive. His sister, acting as his surrogate, decides to withdraw treatment. Can her decision be challenged?

At a session at the Society of Hospital Medicine's annual meeting in Grapevine, Texas, in May, Erin A. Egan, ACP Member, and Vijay Rajput, FACP, discussed this and other legal and ethical issues surrounding end-of-life care and pain management.

One common difficulty, Dr. Egan said, is that physicians aren't always aware of the difference between advance directives and surrogate decision making. This can hinder the process of helping patients and families decide on end-of-life care.

“An incompetent person has exactly the same rights as a competent person,” said Dr. Egan, a professor of bioethics and health policy at Loyola University in Chicago who also holds a juris doctorate. “The only difference is in how those rights are regulated.”

When a patient has an advance directive that gives a friend or family member durable power of attorney, Dr. Egan said, that person legally becomes the patient. He or she can make any decision that the patient could, including the decision to withdraw treatment. “Without clear evidence, it's hard to interfere with a person who has durable power of attorney,” Dr. Egan said.

Surrogate decision makers, on the other hand, are usually immediate family members who are making decisions because the patient has become incapacitated without an advance directive. The patient has not directly given them decision-making power, so there are more restrictions on the types of decisions they can make. For example, most states won't allow surrogate decision makers to withhold or withdraw life-sustaining treatment unless two physicians attest that a patient's condition is terminal, Dr. Egan said.

Because these two types of proxy are different, it's important to know which is which when you're treating an incapacitated terminal patient. “You need to know the structure of decision making,” Dr. Egan said.

Dr. Egan also advised physicians to be aware of the laws in their particular states. “Your state gave you the license to practice medicine. Find out why they think they can take it away,” she said. Physicians should also stay abreast of their state's mandatory reporting requirements in cases of child abuse, elder abuse, evidence of crimes and physician impairment.

Documentation often plays an important legal role in end-of-life care, according to Dr. Egan. For example, what if you're treating a terminal cancer patient who requires a large amount of narcotics for pain relief, and you're afraid the Drug Enforcement Administration will target you based on your prescription volume? In this kind of situation, Dr. Egan said, document exactly what you're doing, why you decided to do it and why you believe it meets the standard of care.

“The longer note you write, the better off you are,” Dr. Egan said. “I write a lot more than I have to, but it has made me so happy so many times.”

Dr. Rajput, associate professor of medicine and program director for internal medicine residency at the UMDNJ/Robert Wood Johnson Medical School in Camden, N.J., reiterated this point when discussing the ethical and legal issues surrounding pain management in hospitalized patients.

“Documentation isn't just ‘write what you give,’ “ Dr. Rajput said. Instead, he advised, your chart notes should also explain your thought processes, any other people you consulted and treatment courses you rejected and why.

Failure to refer a patient for pain management is another potential pitfall for physicians, Dr. Rajput said, because the duty to refer or get a consultant's opinion is well established in medical malpractice law. According to Dr. Rajput, it's always prudent to refer patients with intractable or chronic pain that doesn't respond to treatment to a pain management specialist.

As surgical co-management becomes more common, hospitalists may find themselves clashing with surgeons over pain relief. Dr. Rajput cited a 1999 survey in which 89% of surgeons said they would prefer that pain medication be withheld until a surgical evaluation is completed. In these cases, he said, it's up to the hospitalist to advocate for the patient.

“In my practice, I will give pain medication,” he said. “If the surgeon objects, you can always find another surgeon.” Denying optimal pain relief is ethically and legally wrong, Dr. Rajput said.

Finally, when discussing end-of-life care in the hospital, Dr. Rajput recommended against using the word “futility” in documentation or in talking to the patient or family because it has a tendency to stop conversation.

“Explain why [a treatment] won't work, explain your reasoning, but don't use that term,” he said. “Communicate goals of care and treatment.”