Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: TUESDAY, April 4, 1995 TAG: 9504040071
SECTION: NATIONAL/INTERNATIONAL PAGE: A-1 EDITION: METRO
SOURCE: GINA KOLATA THE NEW YORK TIMES
DATELINE: LENGTH: Long
A Massachusetts doctor's refusal to take extraordinary steps to keep alive a comatose patient suffering from irreversible brain damage has intensified the debate over whether physicians or family members should determine when further treatment is futile.
The doctor, who is at Massachusetts General Hospital in Boston, acted against the wishes of the patient's daughter, who has sued the hospital and the doctors over the issue.
The hospital argues, through its lawyer, that doctors and social workers spent a great deal of time talking to the daughter, Joan Gilgunn of Boston, about the decision on her mother, Catherine F. Gilgunn. Hospital officials contend that it is difficult for a health care team to work for no positive end, and that in exercising professional judgment, doctors are not required to provide treatment simply because it is demanded by patients or their surrogates.
On the other side, lawyers and health experts say that the case, at its heart, is about how society protects its most vulnerable members and how it decides which lives are worth preserving. They say these decisions cannot be made unilaterally by hospitals and insurance companies, which have a stake in holding down costs.
Decisions about withholding further treatment are usually resolved in discussions between doctors and a patient's family members. When they disagree, however, there is no simple mechanism for quickly resolving the dispute.
Some doctors say they have simply stopped futile treatment without telling a patient's family or over a family's objections. In a recent survey of 879 doctors in adult intensive-care units throughout the country, Dr. David A. Asch, an internist at the University of Pennsylvania School of Medicine, found that 14 percent said they had withheld or withdrawn treatment that they considered futile without informing the patient's family. More than 80 percent had withdrawn care over the objections of family members.
Indeed, Asch added, most of the time, doctors call the shots. ``When you get patients to agree, there's so much subtle or not so subtle coercion,'' he said. ``Patients are sold something. We all know doctors who are particularly good at, quote, getting the DNR order,'' referring to a ``do-not-resuscitate'' order.
Gilgunn's lawsuit is set to go to trial in Suffolk County Superior Court in Boston today. She is seeking damages for the mental anguish she said she suffered because, she asserts, her mother's fervent wishes were not followed.
Ethicists and legal experts said they knew of no previous lawsuit in which a hospital and its doctors were accused of unilaterally failing to provide care that a patient had wanted.
``This is a first,'' said Peter Gubellini, a lawyer in Wellesley, Mass., who is assisting with Gilgunn's case.
But, medical experts said, it is unlikely to be the last such lawsuit.
``It is very important,'' said Dr. Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania, ``as an instance of a category of cases that will come more and more to the fore as cost-containment pressures grow and patients begin to wonder, `Can I trust my doctor to do everything that's necessary for me?'''
Gilgunn was 71 when she entered the hospital June 7, 1989, to have surgery for a hip fracture. She was in poor health, with diabetes, heart disease, chronic urinary tract infections and Parkinson's disease. She had had a mastectomy for breast cancer and a stroke the year before. One hip had been replaced twice and the other once before.
Before Gilgunn's surgery could begin, she had a seizure and entered into status epilepticus, a condition of repeated and uncontrollable seizures. When the seizures ended, she had irreversible brain damage and was comatose.
Her daughter says she told doctors at Massachusetts General that her mother had always wanted everything to be done for her. But, on July 5, after the mother's doctors consulted with the hospital's optimum care committee, which mediates issues like this, the doctor in charge of the committee, Dr. Edwin H. Cassem, authorized a do-not-resuscitate order on her chart. Two days later, when her daughter objected, the order was withdrawn.
A month later, a new attending physician, Dr. William Dec, came on duty and asked the committee again for permission for a do-not-resuscitate order. He received such permission and, on Aug. 7, re-entered the order on Catherine Gilgunn's chart. The 71-year-old died Aug. 10. The daughter says that she did not know about this order either and would have objected to it. The hospital's lawyer, Frank E. Reardon of Boston, said that members of the health care team discussed the matter with her, but he would not elaborate.
Yet, Reardon said that, because of the health workers' discussions with the daughter, ``in my opinion, it wasn't a unilateral action.''
John J. Paris, an ethicist at Boston College and a Jesuit priest who is an expert witness for the hospital and its doctors, pointed out the ethical and philosophical issues at stake. He said that the doctors did not have to abide by the daughter's wishes because her mother was so ill that resuscitating her would be futile. The mother, Paris says, did not have a right to be forcibly kept alive.
``We now have the idea that not only does patients rights mean that I can turn down any treatment, but we have the idea that patients and their surrogates can demand treatment and physicians are obligated to provide it,'' he said. ``This is madness. This isn't what medicine is about.''
On the other side, Gubellini, representing the daughter, said: ``I suppose it's going to be said, `Who's going to miss Mrs. Gilgunn?' She was old, not very productive, and had very little family.'' But, he said, ``it's not who will miss her''; instead, it is who decides that she will die.
``When it comes to cases like this, we can't presume to take away people's rights to make treatment decisions and give those rights to hospitals or insurance companies looking for any excuse to get people out of the hospital,'' Paris added.
But some ethicists say doctors are not simply the servants of their patients.
``We are talking about limits to personal autonomy - what you can ask for,'' the University of Pennsylvania's Caplan said. The issue, he said, is, ``How far does the physician go in the name of fidelity and advocacy for a patient?''
He added: ``If you are my doctor, does that mean you do every marginal thing you can think of, and if you do less than that you have betrayed me? We haven't answered that question. We've talked about patients' rights to refuse treatment, but we haven't talked about whether doctors can have discretion about what they can do.''
by CNB