Ping-Pong Post: The Toughest of Choices

The New York Times and ProPublica collaborated on a story (more than a story, really) that will appear in this weekend’s magazine about health care decisions made in the immediate aftermath of Hurricane Katrina.

The upshot: some health care professionals administered lethal doses of drugs to patients who seemed almost certain to die anyway in a hospital that was completely cut off from all services. And though the doc in charge was not indicted on criminal charges, she is still facing wrongful death suits. These issues are painful to even consider in the abstract, but then, we didn’t go into nursing and law because they were warm and fuzzy. Some of the issues:


Nurse: the most familiar things would be to evacuate the sickest first. the theory behind taking the DNR’s last is that they have the least to lose– typically, patients only have DNR orders if they are very old, very ill, or often, both. But this isn’t always true. Some people who are relatively healthy have DNR orders, not because they are dying, but because if they ever do die suddenly, they want to do it peacefully. When we don’t know the extent to which rescue would be possibly, is it wrong to take spots for people who may recover fully and live for thirty years in favor of those who are currently critically ill and are unlikely to survive a few years anyway? This sounds awfully harsh, but it’s a harsh world out there. But is a DNR order an OK way to decide who those people are? DNR is NOT the same as giving up or withdrawing care. have these people somehow relinquished their right to be save while they remain alive? If this was standard or common practice, it would change the meaning of a DNR order. (incidentally, i believe DNR’s are a good thing in a lot of cases and should be protected. people who are quite ill and have little chance of recovery may not wish to have their death prolonged by violent chest compressions. It can be very, very ugly.)

Lawyer: Yes, I see the concept behind using that classification, but it seems to be the wrong one. They appear to be using it as a shorthand for chance of recovery, in some ways, and you’re right, signing a DNR would be a very different thing if it also meant “Rescue Me Last.” If such a policy were to be instituted, it could only rightly be done with NEW DNRs — that’s not what people who already had them were signing up for.


Nurse: This is what we look for in utilitarian ethics– which seems like a reasonable thing to apply in disaster situatios. but how do we define it? years of life saved? quality of life saved? number of lives saved? we can’t define any of these things in absolute terms. at memorial, they basically flipped the standard triage model on its head– the sickest were last instead of first. (in many models only the already dead or those who seemed unsavable would be passed over in favor of more stable patients).

Lawyer: Okay, I can only really speak to this with my disaster hat on, but in basic disaster medical operations (such as what they teach in CERT training) they teach you to, in initial triage, pass over people you can’t help quickly. Someone may be totally saveable — but if you’d have to stand there with your finger plugging their artery for half an hour while eight other people died, you’re not doing the greatest good. So how sick they are is part of it — but so is how far your effort will go toward helping everyone who needs help.


Nurse: These patients got doses of morphine enough to supress their breathing. Is this murder, or is it comfort care? What makes that line? Is it intent? Is it outcome?  Is it ok if the person is dying, and the morphine lets them die without pain (even if it’s slightly sooner?). If the person is not dying, but they almost certainly will– in this case, it could be from dehydration, starvation, lack of treatment, or any number of things– then is it ok? If a person is conscious and lucid, that must change things– can you ask them? If they are capable of consent and you do not ask, that is almost certainly wrong. If you do ask, it may still be wrong. It’s gray. At Memorial, it seems that alert people were given enough morphine to kill them without being asked. Although I recognize the intent was to be compassionate, I find it deeply troubling. What happened is not really palliative care, either– it seems the intent was to end life, and the doses used are way beyond the standards of practice. I have no doubt that some patients really did get “comfort, peace, and dignity” in the words of one of the nurses involved. It cant have been an easy decision, but they went too far, I think. Some of the invovled people said that that’s what they would have wanted done for them. I don’t think we can use that. I frequently do things for people that i wouldn’t want done to me– all kinds of painful, life-sustaining treatment– and I know that a lot of healthcare providers wouldn’t want it done to them either, but that doesn’t mean that others wouldn’t.

Lawyer: Since law school has now started, I wasn’t able to read all, ahem, 18 webpages of this article, so I may be missing some details. And I agree with your line-drawing there. But I’d ask if those patients who seemed certain to die were taking resources from patients who stood a good chance of recovery.

Nurse: The doctor and two nurses who were arrested in the case were not indicted. I don’t think they should be. My concern here is with what is ethical going forward– laws and ethics are not the same thing. I’m glad that healtcare providers were protected here- we need to develop systems to guide and protect them during crisis. The doctor involved, Anna Pou, is now advocating for just this. You go, girl.

Lawyer: What Dr. Pou has been emphasizing is that the rules are different in disasters. We can’t use the same standards, and we can’t use the same systems. There are many laws already in place dictating the “new rules” in disaster situations, and many more in the works — they become active when disasters and emergencies are declared in any number of different ways. (e.g. a governor’s or presidential declaration, an HHS secretary’s declaration of a public health emergency, etc.) The last eight years have been fruitful in this area — but there is still a TON of work to do. I’ll save my treatise on disaster-specific laws for another day, but the take-away here is that legally and ethically, we can’t rely on our usual senses of right and wrong in the midst of a true catastrophe.

Swine flu again. . .

So there’s been more talk in the news about the impact of swine flu on the upcoming flu season– i’ve heard wild estimates that the incidence of flu could be double what we see in a normal flu season, with mostly mild to moderate disease. I’ve also heard estimates that ICU’s may be at 100% capacity entirely with flu patients. (heard mostly via NPR).

1. Not so much with the surge capacity?  We should get on that. Lawyer knows about this kind of thing from her days as a disaster preparedness VISTA.

2. Paying ICU nurses overtime = great for Nurse, expensive for hospital/medicare/whatever is paying. . .

3. Flu vaccines are coming to a hospital employee health deartment near you, but is there enough? And, speaking of, we generally vaccinate the most vulnerable– very young, very old, or compromised– in a situation like this, healthcare providers should perhaps be among the ones chosen. Those ventilators can’t work themselves. . .

And stay in!

Lawyer: This is my fourth and final post about legal issues surrounding public health emergencies. When can we isolate or quarantine people? How can we do it? What about can vs. must? This one is a real doozy — if we could count on people to do the socially responsible thing, we wouldn’t have to worry about this. But all kinds of reasons — from employers who won’t give paid leave or even guarantee you can keep your job, to lack of education about disease, to a general lack of community spirit, many people won’t voluntarily stay home or in a hospital if they are sick or have been exposed. Here are a few thoughts about the who/when/where/why of quarantine and isolation.

1. It really can prevent the spread of disease. In a real pandemic situation, if you keep the sick people away from everyone else (isolation) and those who have been exposed separate until an incubation period has passed (quarantine), the germs can’t get to the rest of the population anywhere near as fast.

2. We as a nation place strong value on individual liberty and have a real reluctance to confine people if we can help it at all. (Unlike, say, China.) And this is one of the great things about our country. But does this great value of ours override the government’s responsibility to keep its citizens safe? I’d say it does, until the danger is really imminent. (see China: overzealous.)

3. It’s not just in what you do — it’s in how you do it. New rules that are being hashed out and introduced require a mandated isolation to meet two tests: the isolation itself must be fair and warranted, and the means of conducting it must also be. There is a built-in due process mechanism that entitles an individual to an automatic medical review after a short period of isolation, and if the individual disagrees with the decision, he/she is entitled to make an appeal on medical grounds, and is entitled to a medical representative (sort of like a lawyer for them, except it’s a doctor.) If they go through this and still disagree and exhaust all the administrative channels, then they are entitled to a habeus hearing. Where they get an actual lawyer.

4. All these hearings and such introduce interesting questions — can an infected person appear in court? Can court personnel be excused if they aren’t comfortable? This has come up in the past in the case of TB, but it’s simpler there — often much more isolated, etc. Alternatives include telephonic hearings, which have been allowed in some contexts in the past. I’m starting to envision hearings via Skype or iChat. The times, they are a-changing.

Lots of sticky issues here. It’s the old safety vs. security debate that we are so fond of, in contexts ranging from forced searches at the airport to, well, pandemic preparedness. Tough stuff!

xposted Ready or Not

Don’t shoot yourself in the foot!

Lawyer:  Here is part three of my series on public health emergency law.

There are a number of measures written into various laws that allow government agencies more flexibility during public health emergencies. We have a lot of regulations surrounding health care, including privacy rules, procedures for various state-fudned health care programs, and regulations about the use of drugs and medical equipment, and when we need to act fast, these rules, which are important protections most of the time, can really get in the way of a quick and coordinated response. Here are a few interesting possibilities:

Emergency Use Authorizations: The Health and Human Services Secretary can ask the FDA commissioner to issue an authorization to use a drug or device that has not yet been approved if there is reason to believe that its risks are minimal and it will help with the health emergency. Likewise, they can authorize the use of an approved drug in a new population or for a new use. These have been used in the past, and there is one in place now allowing the use of flu drugs in children.

Certain laws relating to Medicare/Medicaid — specifally, some of the requirements of health care professionals (i.e. specific timetables for certain kinds of paperwork, requirement that the license be in the specific state where they are providiing services, etc.)

These kinds of built-in flexibilities are important to a functioning system! We wouldn’t want to operate this way all the time, but we also wouldn’t want to be bound by regulations that don’t make sense in a context that requires rapid action. The potential concern — that flexibility opens up the possibility for abuse — is mild in this context, and the alternative is far worse. (As I write this, Arizona has moved up in the list of states with the most cases, but the flu also continues to look mild, and the hot weather may slow its spread — here’s hoping!

(xposted on Ready or Not.)

Liability Issues

Part 2 of my series on legal issues surrounding public health emergencies: Liability.

Federal laws protect federal workers responding in an emergency, even temporary hires, and that’s great — but there are all kinds of other liability issues to take into account.

One that’s important to us: what about volunteers? Volunteers usually work with a local organization or a local government, not directly with the federal government, so it’s their rules that cover you. Pima County will cover registered volunteers of the county, even if they are temporarily registered in an emergency situation — but only if you are acting in a role assigned to you by the county after you register with them. States and counties have their own rules and plans, and it’s really a patchwork system.

It’s important for the government to provide good liability coverage for volunteers, because their services are likely to be needed — especially medical volunteers — but who wants to volunteer if they think they’re going to get sued? Take-home message: if you want to volunteer, make sure you find out what kind of liability coverage will be provided to you by the organization or government for which you are volunteering, because there is no federal law that automatically covers you.

Another interesting issue: use of experimental treatments. Since the PREP act was passed in 2005, the HHS secretary (btw: congrats, Ms. Sebelius!) can authorize emergency use (more about that in a later post in this series) of a not-yet-approved drug or use of approved drug for treating a potential health emergency. If this happens, broad protections are extended to everyone from the drug’s manufacturer to the nurse who gives the injection and everyone in between. They are basically immune from tort liability! (This applies to FDA-approved drugs, too, but the emergency use struck me as the most interesting application.) There’s plenty more to say, but for non-law geeks, this is probably enough for one sitting. Stay tuned for future posts on flexibility, availability of resources, and civil liberties!


Public Health Emergency Law

Lawyer: This morning I participated in a conference call with several lawers from FEMA and HHS. They gave a broad overview of federal law as it applies to public health emergencies. It was interesting to me, but then, I’m a nerd, so I’ve tried to distill a few broad ideas from it to share.

First, there are two ways an emergency can be declared. Either the president can declare an emergency or a major disaster, or the HHS Secretary can declare a public health emergency (which he has just done.) The main reason for these declarations is to gain access to additional funds, supplies, or powers that may help control the emergency or, in this case, the potential emergency. The legal issues surrounding pandemic response can be grouped into several categories.

1. Liability. A lot of the laws surrounding disasters and emergencies deal with protecting emergency workers from being sued, altering licenscing regulations so that workers can more easily respond without sacrificing quality of care, and protecting volunteers. Federal laws generally apply only to federal employees. State laws vary widely.

2. Many of the laws are designed to give government agencies and hospitals more flexibility in emergency situations. Some temporarily relax requiremetns surrunding medicare and medicaid, and there is a program that allows for the emergency use of drugs or other treatments that have shown themselves to be helpful but have not yet been approved by the FDA.

3. Some laws make provision for the availability of resources - -not money as much as medical personnel (HHS commissioned corps, for example) and the Strategic National Stockpile, a large collection of medications, medical devices, supplies, and equipment that would help the US to respond to a public health emergency. The public health emergency declaration isused early this week gives the federal government the authority to deploy these resourcesnot just domestically, but overseas, if there is evidence that such an action would protect our own national security.

4. Perhaps the most fascinating legal questions concern safety vs. civil liberties. In particular, this applies to quarantine laws, which are actually in the process of being rewritten for a world in which people don’t generally travel by ship. The new laws, which are due to be passed mid-June (we’ll see) include a procedure for appeals to take care of the 5th ammendment concerns that often acompany quarantine and isolation ideas.

Lots of issues to explore here. Unless breaking news demands my blogging attention, I might take the next few entries to look at each of these areas in more detail. Stay tuned!


Perspectives on Swine Flu

This article form the BBC has some really interesting perspectives from a variety of folks living in the affected area.

It’s alarming — but it’s also interesting and gives this public health emergency a much more human face.

I (lawyer) will be listening to a CDC-sponsored conference call tomorrow on Federal Public Health Emergency Law — watch for an update tomorrow with more info!