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:
EVACUATING THOSE WITH DO NOT RESUSCITATE (DNR) ORDERS LAST
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.
WHAT IS “THE GREATEST GOOD”?
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.