Ethical and Legal Issues in the
Treatment of Older Adults
Ricardo Perez, DO, JD
Assistant Professor of Medicine
UMDNJ-SOM
Ethical and Legal Issues in the Treatment of
Older Adults
This Care of the Aging Medical Patient in
the Emergency Room (CAMPER)
presentation is offered by the Department of
Emergency Medicine in coordination with the
New Jersey Institute for Successful Aging.
This lecture series is supported by an educational grant from the
Donald W. Reynolds Foundation Aging and Quality of Life
program.
An 85 year old female with mild dementia presents in acute on
chronic renal failure by EMS without a family member present.
The patient is told that she needs emergency hemodialysis or she
will die. You ask her for permission to place perm catheter to
proceed with the treatment. In terms of medical decisionmaking for the elderly, which of the following should be done
first?
A.
B.
C.
D.
E.
Capacity determination
Competency hearing
Contact family-appointed designate of surviving children
Discuss with Executor of the patient’s Will
Contact Durable Power of Attorney for Health Care
An emergency medicine attending and his subordinate emergency
medicine resident were on a flight to Las Vegas for an annual medical
conference. During the flight, an elderly male began choking on his
in-flight meal. After multiple failed attempts of the Heimlich
maneuver, the resident uses a small pocket knife to secure a patent
surgical airway. Ultimately, the elderly gentleman recovered, but
developed an infection at the surgical site. As a result of these actions,
which of the following is most likely?
A.
B.
C.
D.
The attending physician will assume liability.
The resident will be charged with Assault.
The resident will be charged with Battery.
The resident's actions are protected through an emergency
exception.
E. The resident would be liable under the doctrine of strict liability.
An 80 year old male presents to the ED with paramedics for
respiratory distress. He makes it clear that he wants to return home
after treatment for his shortness of breath. You assess that he has
capacity to make that decision. On exam, he appears quite disheveled.
He is unshaven, malodorous, and is covered in feces. Despite this,
there is no bodily injury that is apparent. Paramedics noted the home
is dirty with multiple pets urinating/defecating in the house. The
patient apparently lives with 2 of his children. What is the appropriate
next step?
A.
B.
C.
D.
E.
Send the patient home with a visiting nurse.
Contact adult children.
Contact Adult Protective Services.
Call the local police.
Notify the judge on call to appoint emergency guardianship.
Ethical and Legal Issues in the
Treatment of Older Adults
• Medical Ethics
• Informed Consent
• DNR Orders (Do Not Resuscitate)
• Living Wills
Ethical and Legal Issues in the
Treatment of Older Adults
• Durable Power of Attorney
• Guardianship
• Elder Abuse/Neglect
• Physician-Assisted Death
Medical Ethics-Principles
• Autonomy: Patient is able to make own decisions
• Beneficence: Is treatment in the best interest of
patient
• Nonmaleficence: “Do no harm”
- The law tries to capture the spirit of these principles
- There are times when legal and ethical principles do not
coincide
Hypothetical #1
• A 65 year old female is taken to the ED after a head-on
MVC
• She is unconscious and has several fractures
• She becomes hypotensive and appears to be in shock
• The physician wants to administer a blood transfusion
• At the same time, a nurse discovers a card that states
that patient is a Jehovah’s Witness
What do you do?
Hypothetical #2
•
•
•
•
Same patient as previous
She is unconscious and no family is present
She continues to become profoundly hypotensive
You notice that the aforementioned card has no date
on it
• You also notice that it is not witnessed and it is written
in French
Would you change your mind on treatment?
Informed Consent
•
•
•
•
•
•
True Story! Malette v. Shulman (1990)
The Court decided in favor of the patient
The Court concluded that the transfusion was a Battery
Informed Consent was not obtained
Patient autonomy is paramount
In this case, Beneficence and Nonmaleficence was not
as important as the patient’s self-determination
Origin of Informed Consent
• Doctrine was conceived from the intentional tort of
“Battery”
- “Laying of hands” without permission
- “Every human being of adult years and sound mind has a
right to determine what shall be done with his own body…”
Judge (later Justice) Cardozo (1914)
• Intentional Tort = No standard of care
• Informed Consent = Standard of care may apply
- Usually treated as negligent tort
Torts
Vicarious
Negligence
Torts
Intentional
Strict
Standard of Care
Torts
No Standard of
Care
Intentional
Tort
Res Ipsa
Loquitur
Standard of
Care
Negligence
No Standard of Care
Strict Liability
Fraud/Misrepresentation
Assault & Battery
Intentional Tort (No Standard of Care)
Intentional Tort
Assault & Battery
Informed Consent*
Origin of Informed Consent
• Patient consents to an aortogram. Patient never
advised of risks associated with contrast medium.
Should s/he have been?
• Salgo v. Leland Stanford, Jr., University Board of
Trustees (1957)
- Established the Doctrine of Informed Consent
- No guidance as to the detail of what comprises “informed
consent”
Elements of Informed Consent
• Case law has determined what constitutes “Informed
Consent”
• Elements:
- Describe procedure/treatment
- Explain risks/benefits
- Discuss alternative treatments
• Adequate consent requires that the patient has
Capacity
• Capacity = Determined by a physician
• Competency = Determined by the courts
Standard of Informed Consent
• Two Standards for Disclosure
- Physician-Based
- Patient-Based
• Physician-Based
- Natanson v. Kline-Amount of disclosure based on what
physicians would disclose given the same circumstances
- Problems
 Plaintiff has to produce expert testimony
 Based solely on physician discretion
Standard of Informed Consent
o Patient-Based
o Canterbury v. Spence: Amount of disclosure determined by what
the “reasonable patient” would want to know about the
treatment
o Expert testimony no longer necessary
o By focusing on patient, court believed that autonomy/self-
determination preserved
o Beware! Some states use “subjective” standard
o States have used case law/statutes to pick one of these
standards, or a hybrid of them
Standard of Informed Consent
• Some states with
Physician-Based
Standard
-
Delaware
Florida
New York
Nevada
• Some states with PatientBased Standard
-
California
New Jersey
Pennsylvania
Texas
• Hybrid States
- Kentucky
- North Carolina
Presentation of Information
• Modalities
-
Verbal Presentation
Discussion with physician (preferred)
Written Information
Pamphlets
Video/Internet
Diagrams/Charts
Disclosure of Risks
• Should Disclose:
- Severe Risk, Low Probability
- Less Severe, Higher Incidence
- Risk specific to procedure
• Rule of Thumb:
- Death
- Serious injury
- Limb/Organ Damage
- Minor events that happen >5% of the time
• General Risk:
- Infection, vascular/neurological injury, death
DNR Orders
• This is an order given by a physician to not attempt
resuscitative protocol for someone in cardiopulmonary
distress.
• It can only be written after a physician discusses it with
the patient or, if they lack capacity, a patient
surrogate.
DNR Orders
• Types of DNR orders/code designations
-
DNR: Do not resuscitate (No ACLS protocol)
DNI: Do not intubate (No invasive airway establishment)
Chemical code: Medications only
Full code: All supportive measures
• Remember DNR ≠ Do not treat
- Numerous studies show that DNR patients get less
aggressive care and treatment, despite a Presidential Directive
to discourage this
Advance Directives
• Criteria for Capacity
-
Ability to communicate a choice
Understanding relevant information
Appreciate the situation/consequences
Ability to reason about treatment
• What happens when patient does not have capacity?
• Patient Self-Determination Act (1990)
- Attempted to improve end-of -life care with advance
directives
- In 2005, only 29% of US adults had living wills
Advance Directives
• Types of Advance Directives
- Living Will (1st)
- Durable Power of Attorney for Health Care (Next
Generation)
• Living Will
- Takes effect when patient lacks capacity
- Outlines the type of care they would like
- Usually addresses: cardiac resuscitation, ventilator treatment,
artificial nutrition, blood products, invasive tests, dialysis,
antibiotics
Advance Directives
• Living Will (Problems)
- It may not address the therapy that needs to be instituted
- Language can be vague
- May not clearly indicate code status
• “Terminal condition”
- Legal definition: Will result in death regardless of treatment
- Medical perspective: If not treated, can result in death
- Usually need 2 physicians to agree
Advance Directives
• Durable Power of Attorney for Health Care
- Provides for a surrogate to make active decisions
- Patient can still outline what they prefer as far as treatment
modalities
- Also called Medical POA, healthcare proxy, healthcare POA
- Regular durable POA-controls only finances
• Guardianship: A person is stripped of all their rights
and declared incompetent by the court
Spectrum of Autonomy
Guardianship
Advance Directives
Autonomy
Hypothetical #3
• NH patient comes into the ER. S/he is in florid sepsis,
hypotensive, and unconscious. No living will, advance
directive, or DNR order. No health care proxy or
medical POA.
• Can’t reach family.
• Can’t get consent.
What do you do?
Emergency Exception
• Courts allow treatment because it’s presumed that
patient would want to live.
• Same patient intubated on the vent. Stable vital signs.
Has two peripheral lines for IVF and Abx. You want
to put in a central line, just in case pressors are going to
be needed. Still can’t reach family.
Do you place the central line?
Emergency Exception
• At that point in time, absolutely not!
• The emergency exception to informed consent can only
be used in the preservation of life. NO MORE, NO
LESS!
Hypothetical #4
Surgeon is doing an appendectomy on a 76 year old
woman. Surgeon notes that patient has an ovarian mass
that should be taken out and biopsied. Patient is under
anesthesia and no one is available to give consent. The
surgeon believes that the mass should be excised.
Can the surgeon perform the extra procedure?
The “Extension Doctrine”
• YES!
• Kennedy v. Parrott: North Carolina Supreme Court held
that the surgeon acted in the best interest of the patient
and they had the “duty to do what sound medicine
dictated.”
• Should be a life-threatening risk
• Does not apply:
- Elective cases
- When “extension” should be anticipated
Hypothetical #5
A neurosurgeon does not tell a patient that there is a risk
of paralysis with a laminectomy. The surgeon believed
that the patient really needed the surgery, and did not
want scare the patient out of having the procedure.
Can s/he do this?
Therapeutic Privilege
• Say No.
• Canterbury v. Spence: The court held that a physician
cannot generalize that a patient would not be able to
make an informed decision based on fear of the risk.
• The privilege can only be obtained if it can be proved
that an individual patient could not handle that
disclosure
• Largely “dictum”
• Very hard to prove
Hypothetical #6
A physician starts to explain a procedure, the risks,
consequences, etc. The patient states that s/he would
rather not know anything about the treatment and trusts
that the doctor is making the right decision.
Is the requirement of informed consent satisfied?
Waiver of Consent
• Maybe
• The physician should provide at least enough information, so
that the general nature of the treatment is expressed. In that way,
the patient can understand what they are forgoing.
- For example, state that there are risks inherent in the
treatment. If the patient chooses to not have more
information, then informed consent is satisfied.
Hypothetical #7
A 67 y/o female presented to her PCP with complaints of increased
abdominal girth. She is very active and has a well balanced diet.
Nevertheless, her pants size has increased in the past year. The
PCP offers a CT scan to further investigate. The patient refuses
because she does not want to be exposed to radiation just because
she has “gained a little weight”. The PCP does not discuss the issue
any further. One year later, the patient presents to ED with intense
abdominal pain/ascites. A CT reveals peritoneal carcinomatosis.
Is the PCP liable for failure of informed consent?
Informed Refusal
• Absolutely!
• Truman v. Thomas: In 1980, the CA Supreme Court
developed the principle of informed refusal
• The patient should be told the risks/consequences of
refusing treatment.
- For example, a patient leaving the hospital AMA (against
medical advice)
Hypothetical #8
NH patient comes into the ER. S/he is in florid sepsis
(again), hypotensive, and unconscious. Still no living will,
advance directive, or DNR order. No health care proxy
or medical POA. This time, a relative is in the ED. They
do not want anything done. You are not sure if the rest
of the family would agree with this.
Do you accept their refusal of treatment?
OR
Do you continue with treatment?
Informed Refusal
• You are stuck!
• Treatment can be given, but you should express the
urgency of medical care to the relative. If possible, get
confirmation of this from another physician, or
ethics board.
• If you decide to accept the refusal of treatment, be sure
to document that the relative was informed of the
risks/consequences.
Hypothetical #9
• 85 y/o male was brought into the ED for severe pain
• He was diagnosed with multiple compression fractures
• It was suspected that he might have advanced lung
cancer
• Patient suffered severe pain (8-10 range), he was only
given PO Vicodin prn
• His pain meds were not changed for five days
Is the physician liable?
Elder Abuse
• Bergman v. Chin (1999)
• The Court ruled that the physician’s lack of action was
egregious
• The jury ruled that this was an example of elder abuse
• Damages were $1.5 million!
Hypothetical #10
An 80 y/o demented male presents to ED with
paramedics for respiratory distress. On exam, he appears
quite disheveled. He is unshaven, malodorous, and is
covered in feces. Despite this, there is no bodily injury
that is apparent. Paramedics noted the home is dirty with
multiple pets urinating/defecating in the house. The
patient apparently lives with 2 of his children.
Should this be reported to Adult Protective Services?
Elder Neglect/Abuse
• Yes!
• Adult Protective Services stated that about 30%
of their reports were based on abuse, 70% on
neglect
• Neglect is highly underreported!
• New York-one in 23.5 abuse cases reported
- Financial abuse: One in 44
- For neglect: One in 57!
Resources
• Advance Directives for Health Care (NJ)
- http://www.state.nj.us/health/healthfacilities/documents/ltc
/advance_directives.pdf
- http://www.lsnjlaw.org/english/healthcare/livingwills/advan
cedirectives/
References
1. American College of Legal Medicine Textbook
Committee. Legal Medicine, 7th ed. Philadelphia, PA:
Mosby-Elsevier, 2007:165-173.
2. Malette v. Shulman, 630. R. 2d, 243, 720. R. 2d, 417
(OCA).
3. Supra Note 1, 337.
4. Schoendorf v. Society of New York Hospital, 1914, 105 N.E.
92 (N.Y.C.A.).
5. Salgo v. Leland Stanford, Jr., Univ. Bd. Of Trustees, 317 P.
2d 170, 181 (Cal. App. Ct. 1957).
References
6. Supra Note 1, 338.
7. Natanson v. Kline, 350 P. 2d 1093 (Kan. 1960).
8. Canterbury v. Spence, 464 F. 2d 772 (D.C. Cir. 1972).
9. Supra Note 1, 344-345.
10. Supra Note 1, 240-241.
11. Mirarchi FL. Does a living will equal a DNR? Are
living wills compromising patient safety? J Emerg Med
2007:33(3):299-305.
References
12. Magauran BG. Risk management for the emergency
physician: Competency and decision-making capacity,
informed consent, and refusal of care against medical
advice. Emerg Med Clin N Am 2009;27(4):605-614.
13. Gillick MR. Reversing the code status of advance
directives? N Engl J Med 2010;362(13):1239-1240.
14. Supra Note 1, 241.
15. Supra Note 11, 300.
16. Supra Note 11, 301.
17. Supra Note 1, 241.
References
18. Supra Note 1, 560-1.
19. Supra Note 1, 339.
20. Kennedy v. Parrott, 90 S.E. 2d 754 (N.C. 1956).
21. Canterbury, 464 F. 2d at 783.
22. Supra Note 1, 339.
23. Truman v. Thomas, 611 P. 2d 902 (Cal. 1980).
24. Supra Note 1, 341-2.
25. Bergman v. Chin, No. H205732-1 (Super. Ct. Alameda
Co. Feb. 16, 1999).
References
26. Fulmer T, Paveza G, Vandeweerd C, et al. Neglect
assessment in urban emergency departments and
confirmation by an expert clinical team. J Gerontol A
Biol Sci Med Sci 2005;60(8):1002-1006.
27. Lifespan of Greater Rochester, Inc. Under the Radar:
New York State Elder Abuse Prevalence Study Final Report,
Self-Reported Prevalence and Documented Case Surveys Final
Report. New York, NY: Weill Cornell Medical Center
of Cornell University and New York City Department
for the Aging, 2011. http://www.lifespanroch.org/documents/UndertheRadar051211.pdf.
Accessed 11/14/11.