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Legal Update: Medical Futility. Thaddeus M. Pope, J.D., Ph.D. Widener University Law School. ASBH Annual Meeting (San Diego) October 21, 2010. Baseline Courts (2009-2010) Legislation (2009-2010). Baseline. Bad law. Mass. Med. Society (Nov. 2008). Consensus. Intractable.

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legal update medical futility
Legal Update: Medical Futility

Thaddeus M. Pope, J.D., Ph.D.

Widener University Law School

ASBH Annual Meeting (San Diego)

October 21, 2010

slide2
Baseline

Courts (2009-2010)

Legislation (2009-2010)

slide4
Bad

law

slide6

Consensus

Intractable

slide8
“Why they follow the instructions of SDMs instead of doing what they feel is appropriate, almost all cited a lack of legal support.”
slide10
Damages

Injunctions

Surrogate selection

slide12
Providers have won almost every single damages case brought after unilateral w/h, w/d
  • State HCDA
  • Battery
  • Medical malpractice
  • Informed consent
slide13
Providers typically only lose on claims for IIED
  • Secretive
  • Insensitive
  • Outrageous
slide16
But the process itself can be punishment

Even prevailing parties pay transaction costs

slide18
Courts frequently grant temporary injunctions to preserve status quo

But patients often die before adjudication on the merits

slide20

Ruben Betancourt

vs.

Trinitas Hospital

slide21
73yo male

PVS

COPD

End-stage renal disease

Hypertensive cardiovascular disease

  • Stage 4 decubitus ulcers
  • Osteo-myeletitus
  • Diabetes
  • Parchment- like skin
slide22

Intramural process

No consensus

Unilateral withdrawal

  • DNR order written
  • Dialysis port removed
slide23
January 21, 2009

Jacqueline files complaint

January 23, 2009

Court issues TRO

February 10, 2009

Court extends TRO

slide24

January – February 2009

Evidentiary hearings

Medical expert witnesses

Family witnesses

slide25

March 4, 2009

Permanent injunction on the merits

August 2009

Appeal: NJHA, MSNJ, NJP, GNYHA

slide26

August 13, 2010

Appellate court refuses to reverse

slide28
A proxy shall act in accordance
  • “directive . . . decisions”
  • “the maker’s . . . wishes”
  • “maker’s best interests”
slide29
Helga Wanglie

(Minn. 1991)

slide32
Court to

Barbara Howe:

Your own personal issues are “impacting your decisions”

“Refocus your assessment”

slide33

Ontario

Capacity and Consent Board

slide42

Thaddeus Mason Pope

Associate Professor of Law

Widener University School of Law

4601 Concord Pike ● L325

Wilmington, DE 19803

T 302-477-2230

F 901-202-7549

E tmpope@widener.edu

W www.thaddeuspope.com