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Legal Update: Medical Futility

Legal Update: Medical Futility. Thaddeus M. Pope, J.D., Ph.D. Widener University Law School. ASBH Annual Meeting (San Diego) October 21, 2010. Baseline Courts (2009-2010) Legislation (2009-2010). Baseline. Bad law. Mass. Med. Society (Nov. 2008). Consensus. Intractable.

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Legal Update: Medical Futility

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  1. Legal Update: Medical Futility Thaddeus M. Pope, J.D., Ph.D. Widener University Law School ASBH Annual Meeting (San Diego) October 21, 2010

  2. Baseline Courts (2009-2010) Legislation (2009-2010)

  3. Baseline

  4. Bad law

  5. Mass. Med. Society (Nov. 2008)

  6. Consensus Intractable

  7. “Remove the __, and I will sue you.”

  8. “Why they follow the instructions of SDMs instead of doing what they feel is appropriate, almost all cited a lack of legal support.”

  9. Court Cases

  10. Damages Injunctions Surrogate selection

  11. Damages

  12. Providers have won almost every single damages case brought after unilateral w/h, w/d • State HCDA • Battery • Medical malpractice • Informed consent

  13. Providers typically only lose on claims for IIED • Secretive • Insensitive • Outrageous

  14. Luce is confirming the trend of unsuccessful lawsuits against providers

  15. Risk > 0

  16. But the process itself can be punishment Even prevailing parties pay transaction costs

  17. Injunctions

  18. Courts frequently grant temporary injunctions to preserve status quo But patients often die before adjudication on the merits

  19. amex

  20. Ruben Betancourt vs. Trinitas Hospital

  21. 73yo male PVS COPD End-stage renal disease Hypertensive cardiovascular disease • Stage 4 decubitus ulcers • Osteo-myeletitus • Diabetes • Parchment- like skin

  22. Intramural process No consensus Unilateral withdrawal • DNR order written • Dialysis port removed

  23. January 21, 2009 Jacqueline files complaint January 23, 2009 Court issues TRO February 10, 2009 Court extends TRO

  24. January – February 2009 Evidentiary hearings Medical expert witnesses Family witnesses

  25. March 4, 2009 Permanent injunction on the merits August 2009 Appeal: NJHA, MSNJ, NJP, GNYHA

  26. August 13, 2010 Appellate court refuses to reverse

  27. Surrogate Selection

  28. A proxy shall act in accordance • “directive . . . decisions” • “the maker’s . . . wishes” • “maker’s best interests”

  29. Helga Wanglie (Minn. 1991)

  30. Dorothy Livadas

  31. Bernstein v. Superior Court of Ventura County (Feb. 2, 2009).

  32. Court to Barbara Howe: Your own personal issues are “impacting your decisions” “Refocus your assessment”

  33. Ontario Capacity and Consent Board

  34. Limitations of surrogate replacement

  35. Legislation

  36. Texas as model

  37. S.B. 1114 (Mar. 2009)

  38. Thaddeus Mason Pope Associate Professor of Law Widener University School of Law 4601 Concord Pike ● L325 Wilmington, DE 19803 T 302-477-2230 F 901-202-7549 E tmpope@widener.edu W www.thaddeuspope.com

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