Patient safety and end-of-life decision-making
American Medical Association may consider backing physician-assisted suicide
American Medical Association (AMA) Medical Ethics Opinion 5.7 describes the organization’s position against physician-assisted suicide. The opinion states that, “permitting physicians to engage in assisted suicide would ultimately cause more harm than good. Physician-assisted suicide is fundamentally incompatible with the physician’s role as healer . . . .”
In June 2018, the AMA voted down a recommendation of its Council on Ethical and Judicial Affairs to maintain its position on physician-assisted suicide. Instead, it sent it back to the Council for additional research and work.
This vote by AMA delegates reflects evolving views within the medical profession in the 25 years since Medical Ethics Opinion 5.7 was adopted.
On a legal level, since 1993, California, Colorado, Hawaii, Montana, Oregon, Vermont, Washington, and Washington, DC have enacted “medical aid in dying” laws that allow some form of doctor-assisted suicide.
Moreover, the opinions of individual physicians have morphed into two distinct camps. Some doctors believe that providing patients with the means to speed or hasten death is inconsistent with the physician’s primary role as healer. Other doctors firmly believe that supporting a patient’s request for help in reaching death more quickly is part of compassionate physician care.
As a Houston, Texas medical malpractice attorney, I have a great deal of experience in representing patients and families facing end-of-life issues, as well as situations where healthcare providers are trying to convince them that a patient is about to die. From this experience, I believe that any law that grants physicians or healthcare providers the opportunity to end a patient’s life creates a dangerous situation for patient safety and may be subject to abuse.
Texas law shows the slippery slope
Once unchecked power is available to someone, there is a potential for abuse. Black and white turns into shades of gray. As a famous politician said in the 1990s in response to a question, “It depends on how you define the word is.”
Texas law provides a good example of this phenomenon. While the Lone Star State has not joined the seven states who allow physician-assisted suicide, the Advance Directives Act of 1999 gives Texas doctors an extreme degree of end-of-life power.
Under this current Texas law, a physician can refer a patient case to a hospital committee for a decision as to whether continued care is “medically futile.” Committee membership typically consists of the doctor’s colleagues and can meet with 48-hours’ notice. The patient may attend but is not guaranteed the right to have an attorney present.
If the committee rubber-stamps the physician’s recommendation, then all curative care, food, and water to the patient can be terminated within 10 days. In other words, the doctor and hospital can override the desires of the patient and family and allow the patient to die without further care.
One of the big problems with this law is that it leaves the concept of medical futility to the eye of the beholder. The physician may have a different view from the patient and family. If the doctor goes through the committee process, though, then he or she wins 100% and there is little to nothing that the patient or family can do.
Similarly, what end of life means is also in the eye of the beholder. As more states give doctors power to promote death—and the AMA considers reversing its position on physician-assisted suicide—I expect to see many physicians replace patient decisions and moral judgments with their own. As odd as it may sound, I expect to hear of doctors lobbying patients to schedule their death when the doctor, in his or her moral judgment, thinks a patient’s life is not worth continuing to live.
What you can do
Like most things, I think it pays to plan ahead when it comes to potential end-of-life situations. As a former hospital administrator, I have found that physicians and healthcare providers usually respect a clearly-articulated statement of a patient’s desires.
Talk to your family members about what type of care you would like to receive in different situations. They will be the ones present in the hospital when you may be unable to speak for yourself. Consult with a qualified attorney about an advance directive, living will, durable power of attorney, and medical power of attorney.
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Robert Painter is a medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits against hospitals, physicians, surgeons, anesthesiologists, and other healthcare providers. A member of the board of directors of the Houston Bar Association, he was honored, in 2017, by H Texas as one of Houston’s top lawyers. In May 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.
Robert Painter is a medical malpractice lawyer at Painter Law Firm PLLC.
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Published in the July/August 2018 edition of "The Houston Lawyer" magazine