Intubate or don't intubate

[GeneralVeers]

It's always interesting how the law forces us to do things we as a profession consider "unethical". I think it's unethical to prolong pain and suffering in a patient. Yet the apparent law, families and hospitals force us to do it.

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[cbrons]

Maybe I'm under-rested or over-stressed, but I am really bothered by how often the threads on here that start out discussing patient care decisions devolve into us speculating on the likelihood of getting sued.

Now, I don't want to get sued, and I do take steps to avoid it, but it is NOT the deciding factor in the vast majority of cases. I see two main reasons for feeling this way:
1 - I became a doctor because I was good at science and I had a strong sense of ethics. Those are the tools I should be applying in most cases.
2 - I am not a lawyer and I know very little about tort law. I suspect that's more often than not true for EM docs. So when doctors make decisions based on expected legal outcomes, it's the blind leading the blind.

Sure, document defensively and don't be cavalier. But if you're intubating non-salvageable DNR patients because you're afraid to get sued, then you're being an a$$hat and you're might not even be protecting yourself.

Families do not have the right to reverse a patient’s previously written directives, and ultimately the decision on futility is not up to the family but the physician.

 

[KGflyboy]

Families do not have the right to reverse a patient’s previously written directives, and ultimately the decision on futility is not up to the family but the physician.

That's not true. What are you basing that statement on? Once a patient is no longer able to make decisions, there is somebody else designated either in writing or by default secondary to relationship to the patient who gets to make decisions on behalf of the patient. The person making decisions, whether it be the patient or a representative acting on the patient's behalf, can update the plan for end of life care as he or she sees fit, and the new decisions supercede any prior DNR documentation from a legal perspective. Although this is often unethical when it plays out in reality, it's the law in most states. I'm sure you can find an exception, but what I wrote is by far the norm. Lots of people sign advance directives or some sort of dnr, but that doesn't preclude them from changing their minds later.

All the family has to say is "The patient told me just yesterday she regrets signing the dnr and wants to be intubated," and it's not up to us to call BS and not believe the family member at that point.

I don't like this any more than the rest of us, but there aren't any legally binding dnr documents that cannot easily be superceded later by a dpoa or other representative. If you don't like it, the only recourse is reaching out to your state politicians.

 

[cbrons]

That's not true. What are you basing that statement on? Once a patient is no longer able to make decisions, there is somebody else designated either in writing or by default secondary to relationship to the patient who gets to make decisions on behalf of the patient. The person making decisions, whether it be the patient or a representative acting on the patient's behalf, can update the plan for end of life care as he or she sees fit, and the new decisions supercede any prior DNR documentation from a legal perspective. Although this is often unethical when it plays out in reality, it's the law in most states. I'm sure you can find an exception, but what I wrote is by far the norm. Lots of people sign advance directives or some sort of dnr, but that doesn't preclude them from changing their minds later.

All the family has to say is "The patient told me just yesterday she regrets signing the dnr and wants to be intubated," and it's not up to us to call BS and not believe the family member at that point.

I don't like this any more than the rest of us, but there aren't any legally binding dnr documents that cannot easily be superceded later by a dpoa or other representative. If you don't like it, the only recourse is reaching out to your state politicians.

Physicians can always refuse to provide care they deem ineffective or harmful, and the families can say whatever they want but at the end of the day, if there is solid evidence the patient’s wishes arent to have life-prolonging treatment, you have an obligation to adhere to that regardless of what the family or friends say.

 

[Vandalia]

That's not true. What are you basing that statement on? Once a patient is no longer able to make decisions, there is somebody else designated either in writing or by default secondary to relationship to the patient who gets to make decisions on behalf of the patient.

As written above, legally that is not quite true. If a relative has a power of attorney then they are in the eyes of the law the exact equivalent of the patient and can do whatever they want without regard to the patient's previous wishes. However, in the absence of a power of attorney (or court appointed guardian) then a healthcare surrogate is recognized. This is usually the next-of-kin. The key difference between the two is that the "healthcare surrogate" is legally obligated to follow the patient's expressed or implied wishes. If the patient has previously expressed that she wants to get her money's worth and wants everything done under the sun to keep her alive, then the healthcare surrogate cannot legally say "pull the plug." (But the person named as the attorney-in-fact can.) In the same way, if these types of wishes are necessarily implied from established religious beliefs (e.g., Jehovah's Witness, Catholic, Islam, etc.) then they have the same effect binding the actions of the surrogate, but not the actions of the attorney-in-fact.

In practice it can be a bit messier. If someone has a healthcare power-of-attorney then it is pretty simple; whatever they say goes. End of discussion. If the surrogate and all the rest of the family stand together and lie about the patients desires, then you have no basis to contradict them, even though they are acting illegally. But where it gets to be a real mess is if the surrogate and the rest of the family and friends disagree. Because again, the surrogate is only allowed to make those decisions that are consistent with a patient's previously expressed or implied wishes.

Advertisement: This is the reason why it is important to have an actual "Healthcare Power of Attorney" and appoint someone who will actually do what you want. (If you care about these things.)

The standard disclaimer: Every state has different laws. Know the law and regulations in the state where you practice. The fact you knew them at your last job or where you did your residency will not be a defense.

 

[chessknt]

As written above, legally that is not quite true. If a relative has a power of attorney then they are in the eyes of the law the exact equivalent of the patient and can do whatever they want without regard to the patient's previous wishes. However, in the absence of a power of attorney (or court appointed guardian) then a healthcare surrogate is recognized. This is usually the next-of-kin. The key difference between the two is that the "healthcare surrogate" is legally obligated to follow the patient's expressed or implied wishes. If the patient has previously expressed that she wants to get her money's worth and wants everything done under the sun to keep her alive, then the healthcare surrogate cannot legally say "pull the plug." (But the person named as the attorney-in-fact can.) In the same way, if these types of wishes are necessarily implied from established religious beliefs (e.g., Jehovah's Witness, Catholic, Islam, etc.) then they have the same effect binding the actions of the surrogate, but not the actions of the attorney-in-fact.

In practice it can be a bit messier. If someone has a healthcare power-of-attorney then it is pretty simple; whatever they say goes. End of discussion. If the surrogate and all the rest of the family stand together and lie about the patients desires, then you have no basis to contradict them, even though they are acting illegally. But where it gets to be a real mess is if the surrogate and the rest of the family and friends disagree. Because again, the surrogate is only allowed to make those decisions that are consistent with a patient's previously expressed or implied wishes.

Advertisement: This is the reason why it is important to have an actual "Healthcare Power of Attorney" and appoint someone who will actually do what you want. (If you care about these things.)

The standard disclaimer: Every state has different laws. Know the law and regulations in the state where you practice. The fact you knew them at your last job or where you did your residency will not be a defense.

I appreciate this legal explanation.

The problem we have upstairs is that critical illness is a complicated situation that was likely not adequately planned for by the person. Knowing what the persons wishes for the exact scenario that has occurred is practically impossible and thus trying to override a surrogates authority on this is also impossible.

 

[KGflyboy]

As written above, legally that is not quite true. If a relative has a power of attorney then they are in the eyes of the law the exact equivalent of the patient and can do whatever they want without regard to the patient's previous wishes. However, in the absence of a power of attorney (or court appointed guardian) then a healthcare surrogate is recognized. This is usually the next-of-kin. The key difference between the two is that the "healthcare surrogate" is legally obligated to follow the patient's expressed or implied wishes. If the patient has previously expressed that she wants to get her money's worth and wants everything done under the sun to keep her alive, then the healthcare surrogate cannot legally say "pull the plug." (But the person named as the attorney-in-fact can.) In the same way, if these types of wishes are necessarily implied from established religious beliefs (e.g., Jehovah's Witness, Catholic, Islam, etc.) then they have the same effect binding the actions of the surrogate, but not the actions of the attorney-in-fact.

In practice it can be a bit messier. If someone has a healthcare power-of-attorney then it is pretty simple; whatever they say goes. End of discussion. If the surrogate and all the rest of the family stand together and lie about the patients desires, then you have no basis to contradict them, even though they are acting illegally. But where it gets to be a real mess is if the surrogate and the rest of the family and friends disagree. Because again, the surrogate is only allowed to make those decisions that are consistent with a patient's previously expressed or implied wishes.

Advertisement: This is the reason why it is important to have an actual "Healthcare Power of Attorney" and appoint someone who will actually do what you want. (If you care about these things.)

The standard disclaimer: Every state has different laws. Know the law and regulations in the state where you practice. The fact you knew them at your last job or where you did your residency will not be a defense.

What you just typed is exactly what I was trying to say, without the legal jargon. I don't read your statement as contradictory to anything in my post. As you stated, power of attorneys AND next of kin can easily state the advance directive should be ignored under a variety of circumstances. I agree that a next of kin does NOT have the authority to undue the patient's wishes. I never made such a claim in my post.

The reality though is that all next of kin or surrogates will state they know what the patients want, and sometimes the written wishes are reported to be out of date and not reflective of the current wishes. If a patient has an advance directives signed 1 year ago refusing intubation, it quickly becomes moot if the spouse says, "she just told me last week she would be ok with intubation for a couple days. She just doesn't want to be on a ventilator long term."

When surrogates make statements like that, you now have "solid evidence" that the advance directive does not reflect the patient's wishes. Is the surrogate lying? Maybe. I wonder about this a lot. But it's beyond my ability to determine that, especially in the ED.

 

[KGflyboy]

Physicians can always refuse to provide care they deem ineffective or harmful, and the families can say whatever they want but at the end of the day, if there is solid evidence the patient’s wishes arent to have life-prolonging treatment, you have an obligation to adhere to that regardless of what the family or friends say.

Yes, I agree physicians can refuse to provide harmful or ineffective treatment. That comes into play occasionally, but does not always help out. Sometimes the patients may benefit (briefly) from an intubation despite having a terminal illness and bring on hospice. It may not make sense to do it, but we can't always use the futile care or harmful principle in these cases. People with terminal cancer can easily get pneumonia for instance, which would potentially benefit from all life saving measures.

Patient's wishes are allowed to change over time. If a patient changes his or her mind, and communicates the updated wishes to next of kin, it is not appropriate to ignore the updated wishes and use an out of date advanced directive to refuse to intubate the hypothetical cancer patient with pneumonia.

 

[Old Grunt]

No intubation. The patient's wishes are on paper and it would be hard for them to sue you. I would convince the family not to intubate her, in fact with a signed DNR I wouldn't even bring it up. I would just put face mask oxygen on her and tell them I am making her comfortable per her wishes.

Out in the community, I have been surprised with how much hospice/comfort care I do in the ED. I mean, not a ton, but enough for several similar situations. I thinks Veers is right on. A medical decision made by a patient when they are lucid and not in duress trumps a surrogate's wishes. It's the patient's body and performing a procedure on a patient against their wishes is assault. Most importantly, it's not what they want. I typically approach it from that perspective. It's going to be messy either way, but I think that is the best way to handle it (after ruling out easy reversible causes (i.e. glucose)).

Another helpful thing I found is the inpatient "comfort care orderset" to guide you through the process of making them more comfortable.

I don't think there is a right or wrong answer to your situation - so I am curious as to what you ended up doing (I haven't read the whole thread through so I apologize if you already posted it).

 

[Old Grunt]

I currently work as a tech in the ER...I can't tell you how many times I've had to start compressions on a patient who purposefully signed a DNR and the POA rescinded it. Crushing a 90 year old chest while they are asystole is ridiculous and frustrates the heck out of me.

The. Worst.

 

[leviathan]

Let's ignore the legal side for a minute.

The patient has signed a form expressing wishes to never be intubated or resuscitated. These forms are helpful, but taken out of context, essentially useless. I'm sure any patient who signs a DNR/DNI would unanimously agree that this applies to a massive ischemic stroke not compatible with life. I don't think the same could be said about a highly reversible process that will leave no disability. While some patients might not have wanted intubation in any situation, that is where the next of kin comes in. In this case I would speak to the family and ask them why she signed the form, what her rationale was, and why they think she would want intubation despite signing the form. In the case of clinical uncertainty, it's very reasonable to intubate her until you have more information on prognosis.

Also, there are far better forms that patients can fill out which give a better description of their overall goals of care and feelings.