NY Hospital Fires a Surrogate: The Dorothy Livadas Case

1. NY Hospital Fires a Surrogate: The�Dorothy Livadas Case� Ethics Consultant Group January 14, 2010

2. The Patient: Dorothy Livadas 97 years old Retired writer, college professor Nov. 02, 2007: Hospitalized with dehydration, altered mental state, urinary tract infection; intermittent capacity Nov. 11: Non-responsive; placed on ventilator

3. Continuing Treatment Neurological diagnosis = likely Persistent Vegetative State (PVS) Neurologist: �No reasonable likelihood� that Ms. Livadas would �awaken, communicate, or thrive.� Tracheotomy and peg tube placed approximately 2 weeks later

4. The Patient�s Daughter: Ianthe Practicing astrologer, writer Relocated to Rochester following mother�s 2004 hospitalization Eventually moves in mother�s home in summer of �07 and is currently providing care out of the home Caring relationship but�

5. Family Dynamics In 2005: Ianthe tries to dissolve trust which held title to home so� ? Dorothy�s will re-worked to safeguard property until Ms. Livadas� death (attorney given sole power to sell the property pre-mortem)

6. Directives Advance directives also discussed with attorney at this meeting Ms. Livadas appoints Ianthe as health care proxy only after her brother and the attorney decline to accept role April �05: Dorothy executes a Living Will

7. Adult Protective Services (1) Summer �05: neighbor calls APS (elder neglect); Ms. Livadas tells case worker about verbal abuse and financial vulnerability; patient also appeared underweight Unpaid bills, code violations; daughter feel �overwhelmed� as sole care provider

8. Adult Protective Services (2) Summer of 2007: Dorothy is noticeably underweight, lethargic APS case worker suggests hospitalization; both women reject this idea but Ianthe eventually brings Mrs. Livadas to hospital with an infection Dorothy refuses all treatments and insists on discharge to home against both the doctors� and her daughter�s wishes

9. Back to the Present Dr. Apostolakos (attending) informs Ianthe of prognosis 2nd (independent) opinion obtained; same diagnosis/prognosis ? PVS Daughter does not believe medical assessments; does believe that her mother is still responsive Wishes to use various alternative therapies (vitamins, crystal, Reiki)

10. Ianthe�s Diagnosis Knows that her mother wants to live as long as possible; �not her time yet� Claims attorney fooled mother into signing LW which she didn�t understand Blames hospital for her condition; �She entered hospital with a urinary tract infection and as a result of gross negligence is now on a ventilator.�

11. Communication Problems Jan �08: Case Manager notifies Ianthe that LTAC placement will be necessary Hospital needs financial/insurance information to proceed; Ianthe does not provide this, claiming need to speak to an attorney Limited & ineffective communication noted between medical staff and Ianthe from late December 2007 � March 2008

12. Dorothy�s Living Will If I should be in an incurable or irreversible mental or physical condition with no reasonable expectation of recovery or of regaining a meaningful quality of life (such as permanent unconsciousness or PVS), I direct that (life-prolonging) procedures be withheld or withdrawn so that I may be permitted to die naturally. This statement shall be honored by family, physicians as final expression of my legal right to refuse treatment

13. Legal Actions Physicians, staff feel that patient�s Living Will presents clear and convincing evidence of patient�s wishes and to continue current course of treatment is violation Dr. Richard Demme, Strong Memorial CEC chair: hospital generally allows a proxy to interpret a living will but legal action is necessary when significant differences between the LW & a proxy's interpretation

14. Legal Actions, continued Ianthe's lawyer: Patient�s Living Will is not valid because Dorothy may still be able to participate in her own medical decisions� "Although she cannot speak, she can hear and respond to questions in a lucid manner." 4-28-08: Hospital petitions court, which revokes Ianthe�s financial and medical power of attorney status; appoints an independent guardianship provider (Catholic Family Center)

15. Catholic Family Center Early June �08: CFC notifies Ianthe of their intention to comply with Living Will and discontinue support; Ianthe files appeal August 6th: Neurologist conducts apnea and blood flow tests which indicate brain death Request for 2nd apnea test denied by Catholic Family Center pending appeals court ruling

16. Testimony and Further Tests Neurologist: "Even without the apnea test, I can still say with medical certainty that Dorothy L. is brain dead ...As of now, we are providing care to a deceased patient." MD�s eventually perform an MRI which determined there was still some blood flow to the brain ? Neurologist backpedals: �We will not declare a patient brain dead if there is any blood flow to any part of the brain."

17. Resolution Aug. 2008: Appellate court upholds lower court ruling. Aug 29th: CFC guardian requests that ventilator be removed consistent with patient wishes ? Ms. Livadas dies

18. Postscript $27,735 owed to Rochester Gas and Electric ? power shut off as well as phone and cable services. Home forecloses in April after falling behind $13,000+ in mortgage payments CFC plans to sell the house; acknowledges that Ianthe is living at her mother's home but says, "The guardian is responsible for Dorothy L.'s bills and not the financial support of her adult daughter.� Ianthe writes numerous letters to newspaper; online blogs & various groups weigh in on case

19. Ianthe�s Letters to the Editor, Discussion Board Posts As for my mother's condition, no doctor has told me to date that my mother is in a "coma" or "persistent vegetative state"; I never heard or saw such words concerning her until I read the hospital's petition, which was full of other inaccuracies and perjurious statements.

20. Unfortunately, the judge at the trial level took the hospital's words at face value, and considered the witnesses in a slickly orchestrated "dog and pony show" of a type which the hospital had had much and repeated prior practice organizing � "credible.�

21. The hospital lifted "persistent vegetative state" from the "living will" (and my mother, if she knew she was signing it, may have believed, as many people do, that "persistent vegetative state" equals "brain dead," which she is not, as recent testing has proven); nor has she ever had a "flat line" EEG or an EEG showing no brain activity; even when the "guardians" were attempting to kill her the first time�

22. �and the "guardians" ignored the protests of our Greek Orthodox priest that disconnecting her would not be acceptable to our church, and the "guardians" are required by statute to consider the teachings of her religion). Nor was she in a coma; at the time the hospital filed petition, and at the time of the hearing, as I testified, she was opening her eyes and looking around, smiling when I told her not to worry, that she'd be out of the hospital soon, etc. Tellingly, the judge had a tear in his eye on hearing this; he may have known that he was going to be issuing a death sentence despite her having committed no crime and against her obvious will�

23. I'm a simple person; I'm going by what my mother has indicated to me consistently before, and ever since, she was hospitalized -- and I'm the only one in this scenario who knows and understands her, and I'm the one she's told, as she has others who actually know her, that I'm the only one she trusts, and the one whom she wants to be there with her if she is ever ill. I have an obligation to follow her current wishes; as far as SHE is concerned, and it's HER ACTUAL wishes that matter, I'm still her health care proxy and power of attorney, and it's obvious that I did a much better job for her as such than her "guardians" have. 

24. The Politics of Medical FutilityWesley J. Smith (attorney/author) The usual meme that "cure" is the point, not life, was trotted out by the hospital: Although not wishing to comment on the specifics of this case, the head of Intensive Care at Strong Memorial Hospital testified in a courtroom that there is no chance Dorothy will awaken or communicate. A doctor from Rochester General who was called in for a second opinion concurred. So what, even if true? The proxy believes the life of Dorothy is what matters. Surely courts would not agree! Please� Proxies and family members who value their loved ones lives aren't capable of making "objective decisions," don't you know.

25. However, the courts have ruled that Ianthe Livadas no longer has a say in her mother's care as Justice Harold Galloway awarded custody to Catholic Family Center. He said that Ianthe "fails to appreciate her mother's true medical condition," and that she "lacks the objectivity and insight to make necessary decisions. "Here's proof of a warning I have frequently made: Under Futile Care Theory, patient autonomy is one way street. Advance directives only matter if the proxy makes the "approved" decision. This is the beginning of the creation of a duty to die in which those with the power to decide push aside patients and duly appointed proxies who disagree in order to impose their own bioethical values on the rest of us. There's a term for that; medical tyranny.

26. One final point: If we are going to have futile care theory imposed on us, this scenario is preferable to star chamber decision making by bioethics committees meeting in private session. At least here, there's a right to appeal and a public proceeding so that the public can be appraised of what is happening. So, if a patient's continued treatment is really torture, this is how it should be handled. But boy, this is a dangerous road that can only threaten the most vulnerable among us. And something should be done about the inequality of funds for lawyers in cases such as this. If a hospital wants to forcibly pull the plug, it should have to pay the legal fees of the family so they don't go bankrupt trying to save their loved one's life. (WJ Smith)

27. Discussion Questions Did Strong Memorial take the right course of action in this case? Might they have done something different to avoid judicial involvement? Under what circumstances should a proxy or surrogate have the authority to override a patient�s Living Will?

28. Autonomy & Moral Authority Do patients still have the same preferences and interests they had when the living will was executed, and if not, why should we respect living wills? Once they become permanently incompetent/unable to comprehend their earlier preferences/interests, hard to say that they still have those same preferences Example: a �pleasantly demented� patient

29. Question �If we cannot attribute those preferences and interests to the patient at the time a living will takes effect, how are we respecting the patient's autonomy, or promoting his or her interests, by following the living will?� (John K. Davis)

30. Do patients always want their living will followed? Study of 150 dialysis patients with living wills Question: How much leeway should their surrogate and physician have to override their living will if they believed it were in the patient�s best interests? 39%: no leeway 19%: a little leeway 11%: a lot of leeway 31%: complete leeway

31. Ethics Committee Takeaway Encourage an early review of all advance directives in the patient�s chart & particularly for� Incapacitated ICU patients Incapacitated patients with large families Patients with terminal illness and/or poor prognoses

32. Sources �Precedent Autonomy and Subsequent Consent� by John K. Davis. Ethical Theory and Moral Practice 7: 267�291, 2004. Durable Power of Attorney Versus the Advance Directive: Who Wins, Who Suffers? by Steven J. Baumrucker. Am J Hosp Palliat Care 2007; 24; 68 http://medicalfutility.blogspot.com/2008/08/new-case-dorothy-livadas.html http://www.wesleyjsmith.com/blog/2008/08/doroty-livadas-new-futile-care-case-in.html