Anne Studholme on Am. Med. News on Betancourt

This is a guest post by - 

Anne L. H. Studholme, Esq.

Manewitz & Studholme, LLC

Princeton, NJ

anne@manewitzstudholme.com

anne@alumni.princeton.edu

Counsel to amici curiae Not Dead Yet, ADAPT, Center for Self-Determination, National Council on Independent Living, American Association of People with Disabilities, National Spinal Cord Injury Association, Disability Rights New Jersey





Professor Pope does an excellent job, among all his other duties and calls on his time, in maintaining this blog. I almost always agree with his comments about the Betancourt case, where I represent the disability-rights friends-of-the-court.  But I think May 17, 2010, American Medical News article is not fully accurate and needs a more complete response.  In particular, the positions articulated by lawyers for the hospital and its amici as quoted in the article differ extensively from what was said on their behalf in the briefs and at oral argument.   My comments to selected portions of the original article are in brackets and italicized, below:





. . . Judges will decide whether family members could compel Trinitas Regional Medical Center to continue life-sustaining care for their comatose father when hospital doctors believed further treatment was medically inappropriate. ['Hospital' is the crucially important word in that sentence. Another doctor, not connected with Trinitas, testified that the care was appropriate.]





. . . A trial judge in March 2009 blocked Trinitas from discontinuing life support for 73-year-old Ruben Betancourt, who lapsed into unconsciousness after complications from cancer surgery. [Omits to mention that the cause was a self-extubation during recovery from surgery, likely due to improperly secured post-operative restraints at Trinitas itself where the operation took place; that there were no other complications; and that the surgery -- in January 2008 -- had been successful. Betancourt was not dying from cancer and had lived for over a year since the extubation at the time of trial.]





. . . Hospital doctors advised the family that he was in a persistent vegetative state and that ongoing treatment would be futile and inhumane. Betancourt's family members disagreed with the assessment and, believing their father was still responsive [and, crucially from the legal standpoint, that he himself would not want his life-support terminated in this situation], sought and won a court order prohibiting Trinitas from withdrawing support without their consent [which consent, in New Jersey, must be based on the relatives' best understanding as to what the patient would want.]





. . . Physicians agree that patients and their proxies should have a say in such end-of-life decisions, said Lawrence Downs, general counsel and director of public health at the Medical Society of New Jersey. But so should the doctors who are providing the care, he added. MSNJ, joined by other state health care organizations, filed a friend-of-the-court brief in the case. [MSNJ's expressed legal position in its brief and at oral argument was that the doctors' 'say' should always control, regardless of what the family is able to prove as to what the patient wants or would want.]





. . . End-of-life care decisions should be a collaborative process, Downs said. "But where the care demanded by the family is futile from a medical perspective, there needs to be a better way to resolve the question than going to court to order doctors to provide care they are uncomfortable providing. ... The doctor is the medical expert and should have a place at the table to give guidance." [Everyone agrees that the doctor should give guidance and that the decisionmaking, so far as possible, should be collaborative. But Trinitas and its amici, including MSNJ, seek legal permission for the treating facility to always have the last say, with no external control or review. Downs also conflates 'medical futility'-- will the treatment serve its physiological role, in this case dialysis-- with 'futility' as a value proposition, meaning ought this life to be preserved? Under New Jersey law that latter decision is for the patient to make, not anyone else.]





. . . "Patients do have a right to choose among available and appropriate treatment, but not to decide what's medically appropriate," and in this case, doctors had done all they could do, said Trinitas' vice president and general counsel Sam Germana. [The doctors said that, while they could keep Mr. Betancourt alive indefinitely-- he was not brain dead-- they could not restore his mental function to what it had been before his extubation, nor could they reverse the kidney failure. This, in their opinion, meant that continuing to care for him was 'futile.']





. . . Betancourt's attorney, Todd Drayton, said the hospital decided on its own to discontinue support. [That removal of the dialysis port, against the family's objections, happened in January, 2009, four months before Betancourt's eventual death. (The court ordered the port reinstalled immediately, and dialysis had been resumed.)]





"We're not saying patients have the right to demand extraordinary or experimental treatment a hospital feels is inappropriate. That's not the issue," he said. "The facts of our case are whether or not a hospital can unilaterally terminate life-sustaining support over the objections of the family."





The answer is no, Drayton said. He pointed to state Supreme Court precedents upholding patients' rights to determine their care or have someone act on their behalf, particularly in end-of-life circumstances.





Downs said New Jersey case law primarily has addressed patients' rights to refuse or withdraw medical treatment. [Primarily, but hardly exclusively.]





The Betancourt case, however, opens the door for the courts to address for the first time whether doctors must continue providing care they consider medically unwarranted and even unethical, he added. [Not for the first time.]





Sincerely, Anne Studholme.