Legal Update Medical Futility Thaddeus M Pope J

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

“Why they follow the instructions of SDMs instead of doing what they feel is

Damages Injunctions Surrogate selection 10

Providers have won almost every single damages case brought after unilateral w/h, w/d §

Providers typically only lose on claims for IIED § Secretive § Insensitive § Outrageous

Luce is confirming the trend of unsuccessful lawsuits against providers 14

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

Courts frequently grant temporary injunctions to preserve status quo But patients often die before

Ruben Betancourt vs. Trinitas Hospital 20

§ 73 yo male § PVS § COPD § End-stage renal disease § Hypertensive

Intramural process No consensus Unilateral withdrawal § DNR order written § Dialysis port removed

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

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

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

August 13, 2010 Appellate court refuses to reverse 26

A proxy shall act in accordance 1. “directive. . . decisions” 2. “the maker’s.

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

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

Thaddeus Mason Pope Associate Professor of Law Widener University School of Law 4601 Concord

Slides: 42

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

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

Baseline 3

Bad law 4

Mass. Med. Society (Nov. 2008) 5

Consensus Intractable 6

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

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

Court Cases 9

Damages Injunctions Surrogate selection 10

Damages 11

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

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

Luce is confirming the trend of unsuccessful lawsuits against providers 14

Risk > 0 15

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

Injunctions 17

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

» amex 19

Ruben Betancourt vs. Trinitas Hospital 20

§ 73 yo male § PVS § COPD § End-stage renal disease § Hypertensive cardiovascular disease § Stage 4 decubitus ulcers § Osteomyeletitus § Diabetes § Parchmentlike skin 21

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

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

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

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

August 13, 2010 Appellate court refuses to reverse 26

Surrogate Selection 27

A proxy shall act in accordance 1. “directive. . . decisions” 2. “the maker’s. . . wishes” 3. “maker’s best interests” 28

Helga Wanglie (Minn. 1991) 29

Dorothy Livadas 30

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

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

Ontario Capacity and Consent Board 33

Limitations of surrogate replacement 34

Legislation 35

Texas as model 36

S. B. 1114 (Mar. 2009) 37

Thaddeus Mason Pope Associate Professor of Law Widener University School of Law 4601 Concord Pike ● L 325 Wilmington, DE 19803 T 302 -477 -2230 F 901 -202 -7549 E tmpope@widener. edu 42 W www. thaddeuspope. com