Tag: wrongful death

Bioethics Blogs

Lang v. Rogue Valley Medical Center – Unilateral DNR and Withholding Lawsuit

The Oregon Supreme Court has just issued a judgment allowing a medical futility lawsuit to proceed to trial.


In 2001, Ruth Miller was diagnosed with multiple myeloma. Seven years later, in 2008, she executed an advance directive, naming Phillip Lang as her health care representative.  


On August 1, 2008, Miller was admitted into Rogue Valley Medical Center, where she died that night. Lang brought a lawsuit against the Medical Center and Miller’s oncologist, asserting claims for wrongful death, negligence, medical malpractice, and abuse of a vulnerable
person.


Lang alleges that Miller was not capable of making medical decisions when she was admitted. According to the complaint, when defendants admitted Miller, they listed her as “Do Not Resuscitate” and provided her with only palliative care instead of following plaintiff’s directions to insert a feeding tube and to take other measures to reverse Miller’s deteriorating condition. 

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.

Bioethics News

Neil Gorsuch for the Supreme Court: His Bioethical Perspectives

By: Ashwini Nagappan

Neil Gorsuch was announced as President Trump’s nominee for the Supreme Court on 31st January 2017, leading many to examine his stance on prevailing controversial issues, such as end-of-life care and abortion. Answers may be found in his 2006 book, ‘The Future of Assisted Suicide and Euthanasia’, which showcases his opinion against euthanasia and the right to die. Whilst he is religious, his book relies not on theological arguments but well-substantiated, academic and philosophical principals to support his position. Should he be confirmed, many in the field will watch his progress with interest.

As he approaches the debate from his DPhil, Gorsuch claims, “all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.” Currently, the AMA allows physicians to withhold treatment and let patients die, but does not allow any direct intervention that would kill the patient, which is a system Gorsuch agrees with. But, there is a moral significance that differentiates both intentional acts of killing and letting die. When death is the lesser of two evils, perhaps it is permissible to provide a treatment that would reduce their pain, but still lead to their death. It may be more humane to quickly kill someone than put them through a slow, painful death.

Further, Gorsuch argues that institutionalizing a right to die might make people worse off. By giving patients this choice, they are deprived of not having a choice to make. They are now obliged to make a decision that once was not even existent.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.

Bioethics Blogs

Does an Arbitration Clause in a Nursing Home Agreement Preclude Tort Actions Relating to the Resident’s Wrongful Death?

By Alex Stein Arbitration clauses in nursing home agreements are pretty much standard. Whether such a clause precludes tort actions complaining about the resident’s wrongful death is consequently an important issue.  The Pennsylvania Supreme Court has recently addressed this issue in Taylor v. Extendicare … Continue reading

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.

Bioethics Blogs

Yale Wins Appeal after Removing Life Support over Family Objections

On July 24, 2010, clinicians at Yale New Haven Hospital made Helen Marsala comfort care only over the objections of her family.  


Earlier, the hospital had repeatedly tried to get consent for their recommended treatment plan.  But ultimately the team consulted the ethics committee and proceeded without consent.


Helen’s husband asserted claims for wrongful death, loss of consortium, and medical malpractice.   Those claims are still pending before the trial court.  Helen’s five children also asserted claims.  


They sued for intentional infliction of emotional distress (IIED) and negligent infliction of emotional distress (NIED).  Specifically, they alleged that they suffered the following “serious, painful and permanent injuries: (a) severe emotional distress; (b) loss of opportunity to say goodbye; (c) depression; (d) loss of sleep; (e) stress; (f) anxiety; and (g) pain and suffering.’’


The trial court ruled against those claims.  In late June, the court of appeals affirmed.  Key to the court’s analysis is that none of the children contemporaneously witnessed the Hospital’s decision-making process and none was present when the Hospital made the ultimate decision to transition Helen to comfort care.


This case stands out as an exception to a general trend in which families have successfully asserted claims for NIED and IIED against hospitals that unilaterally withdrew life-sustaining treatment.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.

Bioethics Blogs

The ethics of Indiana HB 1337: Outlawing abortion based on race, sex, and disability


In March, the Indiana legislature passed and the Indiana
governor signed into law
HB
1337
, a bill that bans abortions for women seeking them based solely on
certain characteristics of the fetus, such as race, sex, and disability.
Specifically, the bill:


 


“Prohibits a person from performing
an abortion if the person knows that the pregnant woman is seeking the abortion
solely because of: (1) the race, color, national origin, ancestry, or sex of
the fetus; or (2) a diagnosis or potential diagnosis of the fetus having Down
syndrome or any other disability. Provides for disciplinary sanctions and civil
liability for wrongful death if a person knowingly or intentionally performs a
sex selective abortion or an abortion conducted because of a diagnosis or
potential diagnosis of Down syndrome or any other disability.”


 


As I have discussed in a previous
blog
, sex selection is a frequent occurrence in certain countries, such as
India and China, where there is a strong preference for sons. Yet, there is
little to no evidence that sex selection abortion is commonplace in the US. Abortion
based on the race of the fetus is similarly rare in the US. While the purpose
of any law is to prohibit actions it deems unethical or contrary to social
norms, regardless of their frequency, due to limited time and resources, it
makes sense to focus on bills that address common occurrences or things that
are so morally repugnant that the state must take a stand. The main motivating
factor for this bill does not seem to be avoiding discrimination based on sex
and race, but rather trying to undermine legal access to abortion.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.

Bioethics Blogs

Jahi McMath Family Moves to Bifurcate Trial

Last week, the family of Jahi McMath filed a motion to bifurcate the trial against the healthcare providers whom they allege harmed Jahi in December 2013.

The McMath family proposes to first have a trial on whether the defendants committed malpractice.  Their theories of malpractice include, among others:

  • Decision to perform drastic surgery without first trying less invasive options
  • Failure to account for a congenital abnormality
  • Failure to provide adequate post-operative care
  • Failure to perform appropriate resuscitation
  • Pressuring family to donate organs

While medical malpractice is complicated litigation, it is comparatively the simpler issue in this lawsuit.  It will require only a 7-10 day trial.  

If the jury does not find liability, then there is no need to determine whether or not Jahi is alive or dead.  That is the key benefit of bifurcation.  It avoids the need to present evidence on issues (amount of damages) that could be irrelevant depending on the resolution of other issues (liability).  

On the other hand, if the jury does find liability, then it will be necessary to have a trial on damages.  The jury must determine whether to award damages for wrongful death or damages for future medical treatment.  This phase is expected to consume weeks of trial, with “medial and ethical” experts from Cuba, New Jersey,  and Los Angeles.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.

Bioethics Blogs

Healthcare Agent Sued for Making Treatment Decisions while Drunk

Linda Diann Aymond Roberts, a neonatal nurse practitioner, died on July 28, 2009.  Her son, Jeffrey Buelow, filed a petition against his stepfather, Donald Melvin Roberts, seeking damages for the alleged wrongful death of his mother.


Buelow claims that during the period that Mrs. Roberts was hospitalized in the Rapides Medical Center, Mr. Roberts was under the “influence of alcohol.”  Mr. Buelow claimed that Mr. Roberts was intoxicated when he signed “Consent to Withdraw Life–Sustaining Procedures,” for Mrs. Roberts. 


Mrs. Roberts passed away shortly after life support was withdrawn. Mr. Buelow alleges that Mrs. Roberts’ life-sustaining procedures were wrongfully withdrawn by Mr. Roberts, as BOOP (“bronchiolitis obliterans organizing pneumonia) was a curable disease.


This week, the Louisiana Court of Appeals (15–965) affirmed the dismissal of the case, because it was filed too late.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.

Bioethics Blogs

When Hospitals Incorrectly Declare Brain Death

Mindful of new reports and court cases on variability in the criteria and standards for brain death, this Alabama personal injury law firm is advertising for cases in which hospitals incorrectly declare brain death.

“If you have been involved in a situation in which you believe the brain death of a loved one was incorrectly determined, contact us at (877) 336-0776 to speak with an Alabama medical negligence attorney. We offer a free initial case review to all new clients.”

“Malpractice occurs when a medical professional acts in a negligent or unprofessional way. In extreme cases, malpractice can lead to wrongful death,  especially in the case of incorrectly declaring brain death. There have been several examples over the years of hospitals incorrectly identifying a patient as ‘brain-dead’ when there is still some activity.”

“Generally, a patient is classified brain-dead after being studied by a neurologist but, this is a tricky situation as the term and policies vary from hospital to hospital. Only 33% of hospitals require a neurologist to be present, and most policies don’t even mention who on the staff is required to make this very important judgment. Recent studies have found that most policies regarding brain death are highly inconsistent.”

“While new policies are being put into place, incorrectly declaring brain death still occurs all too often and is, not only traumatic for the family, but put’s the hospital at risk for a malpractice suit.”

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.

Bioethics Blogs

Connecticut Appellate Court to Rule on Medical Futility Case – Marsala v Yale

Few medical futility cases in the United States result in a trial court judgment much less a written opinion from an appellate court.  For example, New Jersey famously avoided issuing such an opinion in Betancourt v. Trinitas Hospital.  But the Connecticut Appellate Court may soon be issuing an opinion.

In July 2010, Helen Marsala died at Yale New Haven Hospital.  She had been transferred there after a lengthy stay at another hospital.  She had multiple organ system failure and was on a ventilator, dialysis, and artificial nutrition and hydration.  


At one point, clinicians weaned Helen from the ventilator.  Yale clinicians recommended that Helen not be reintubated.  Her husband, Clarence, disagreed.  So, the treatment team confirmed its plan with the ethics committee and with an independent physician.  


Helen’s family filed a lawsuit against Yale in August 2012.  Her husband’s wrongful death case is scheduled for trial.  But trial is stayed while the appellate court considers the appeal of Helen’s five children.  


The children’s claims are for negligent and intentional infliction of emotional distress.  Notably, claims for NIED and IIED are the most successful in medical futility cases.  But that is usually where the hospital was not honest or transparent.  Here, Yale seems to have proceeded in an open and deliberative manner. Of course, a jury could still find that withholding life sustaining treatment over a family’s objections is outrageous and beyond the bounds of common decency.


But Helen’s children have other hurdles.  Yale filed its brief on Dec. 23, arguing that the NIED and IIED claims are unavailable for “bystanders” like the children.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.

Bioethics Blogs

Jahi McMath – A Second Medical Malpractice Lawsuit

Since March 2015, Jahi McMath’s mother has been litigating a medical malpractice lawsuit against the clinicians and hospitals that she alleges negligently injured Jahi.  The Alameda County Superior Court will hear the defendants’ demurrers to her first amended complaint on January 8, 2016.

Yesterday, Jahi McMath’s father, Milton, filed a parallel

lawsuit based on the same allegations.  Oddly, he also includes allegations about Jahi being alive (see below).  But unlike the mother’s lawsuit, these are irrelevant and unnecessary to the father’s claims for wrongful death and NIED.

32. Based upon the pediatric neurologist’s evaluation of JAHI, JAHI no longer fulfills standard brain death criteria on account of her ability to specifically respond to stimuli. The distinction between random cord-originating movements and true responses to command is extremely important for the diagnosis of brain death. JAHI is capable of intermittently responding intentionally to a verbal command.”

“33. In the opinion of the pediatric neurologist who has examined JAHI, having spent hours with her and reviewed numerous videotapes of her, that time has proven that JAHI has not followed the trajectory of imminent total body deterioration and collapsed that was predicted back in December of 2013, based on the diagnosis of brain death. Her brain is alive in the neuropathological sense and it is not necrotic. At this time, JAHI does not fulfill California’s statutory definition of death which requires the irreversible absence of all brain function, because she exhibits hypothalamic function and intermittent responsiveness to verbal commands.”

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.