July/ August 2010

AN RANCISCO EDICINE S F M VOL.83 NO.6 July/August 2010

JOURNAL OF THE SAN FRANCISCO MEDICAL SOCIETY

The Evolution of Medical Ethics

Unparalleled Service and •

Another large dividend - $20 million back to MIEC policyholders For 35 years, MIEC has been steadfast in our protection of California physicians. With conscientious Underwriting, excellent Claims management and hands-on Loss Prevention services, we’ve partnered with our policyholders to keep premiums low.

Added value: At MIEC we have a long history of big dividend distributions. Because of excellent financial results and low overhead, MIEC has been able to return dividends to our California policyholders 17 of the last 20 years with an average savings on premiums of 25.5%.

For more information or to apply contact: n www.miec.com or call 800.227.4527 * (On premiums at $1/3 million limits. Future dividends cannot be guaranteed.)

MIEC 6250 Claremont Avenue, Oakland, California 94618 800-227-4527 • www.miec.com

SFmedSoc_ad_02.11.10

MIEC Owned by the policyholders we protect.

In This Issue SAN FRANCISCO MEDICINE July/August 2010 Volume 83, Number 6 The Evolution of Medical Ethics

FEATURE ARTICLES

10 The Emerging Discipline of Clinical Ethics: The Perspective from CPMC William Andereck, MD 12 Teaching Medical Ethics: The Evolution Bernard Lo, MD

MONTHLY COLUMNS

4 Membership Matters 5 Classified Ads 7 President’s Message Michael Rokeach, MD

14 Medical Futility: A Brief Tour Lawrence Schneiderman, MD

16 Euthanasia: Death Panels, Death Planning, and Death Policy Albert Jonsen, PhD

18 Trust, but Verify? The Ethics of Opioid Agreements for Patients with Chronic Pain Ben A. Rich, JD, PhD

9

20 SFMS Events Calender 33 Hospital News

22 Partnership for POLST: Expanding and Improving Palliative Care in San Francisco Jeffery Newman, MD, MPH, and Steve Heilig, MPH

Welcome New SFMS Members

23 “Just Do It”: The Evolution of a Palliative Care Program Jeffrey Beane, MD

25 The Unbefriended Adult Patient: The San Francisco General Hospital Approach to Ethical Dilemmas Eric D. Isaacs, MD, and Robert V. Brody, MD 27 Clinical Ethics: Palliation, Consultation, and Life Lessons Andrew Lasher, MD

29 Too Many Preventable Deaths: Putting Organ Donors First Lisa Nyberg, MD, and Steve Heilig, MPH

30 From the Mouths of Doctors: A Sampling of Ethical Dilemmas from SFMS Members

Editorial William Andereck, MD; Albert Jonsen, PhD; and Steve Heilig, MPH

The SFMS would like to welcome the following new members Yee-Li Sun, MD The Permanente Medical Group Thang Nguyen, MD The Permanente Medical Group Andrew Wang, MD Referred by Gary Chan, MD

Editorial and Advertising Offices: 1003 A O’Reilly Ave., San Francisco, CA 94129 Phone: (415) 561-0850 extension 261 e-mail: adenz@sfms.org Web: www.sfms.org Advertising information is available by request.

www.sfms.org

July/August 2010 San Francisco Medicine 3

Membership Matters July/August 2010 A Sampling of Activities and Actions of Interest to SFMS Members

Volume 83, Number 6 Guest Editors William Andereck, MD, and

Albert Jonsen, PhD

Managing Editor Amanda Denz

Annual General Meeting of the San Francisco Medical Society

Copy Editor Mary VanClay Editorial Board Obituarist Nancy Thomson Stephen Askin

Shieva Khayam-Bashi

Toni Brayer

Arthur Lyons

Linda Hawes Clever

Ricki Pollycove

Gordon Fung

Stephen Walsh

Erica Goode SFMS Officers President Michael Rokeach President-Elect George A. Fouras Secretary Peter J. Curran Treasurer Keith E. Loring Immediate Past President Charles J. Wibbelsman SFMS Executive Staff Executive Director Mary Lou Licwinko Director of Public Health & Education Steve Heilig Director of Administration Posi Lyon Director of Membership Therese Porter Director of Communications Amanda Denz Board of Directors Term: Jan 2010-Dec 2012

Roger Eng

Gary L. Chan

Thomas H. Lee

Donald C. Kitt

Richard A. Podolin

Cynthia A. Point

Rodman S. Rogers

Adam Rosenblatt Lily M. Tan

Term: Jan 2008-Dec 2010

Shannon Udovic-

Jennifer H. Do

Constant

Shieva C. Khayam-Bashi

Joseph Woo

William A. Miller Jeffrey Newman

Term: Jan 2009-Dec 2011

Thomas J. Peitz

Jeffrey Beane

Daniel M. Raybin

Andrew F. Calman

Michael H. Siu

Lawrence Cheung CMA Trustee Robert J. Margolin AMA Representatives H. Hugh Vincent, Delegate Robert J. Margolin, Alternate Delegate

Date: Monday, September 13, 2010 Time: 6:00 p.m to 7:30 p.m.

Location: Commodore Room, Golden Gate Yacht Club Guest Speakers: Gavin Newsom, Mayor of San Francisco (invited); J. Brennan Cassidy, MD, CMA President The Nominations Committee Report also presented. Dinner will be served. RSVP required. RSVP by noon on September 6, 2010.

SFMS Members are also invited to attend the regular meeting of the Board, which immediately follows the General Meeting. This is a good opportunity both to meet with SFMS leadership and to learn firsthand what SFMS and CMA are involved in on behalf of physicians and their patients in San Francisco and California.

Please RSVP to Posi Lyon at (415) 561-0850 extension 260 or plyon@sfms. org. Make sure to include your phone number and e-mail address so we can send directions for the event.

Help Support and Grow the San Francisco Medical Society Membership renewal time is coming in September, and you can get a break on your dues while helping to grow membership. We are proud to announce our revised and improved dues incentive program!

Peer-to-peer communication remains the single most effective recruitment and retention strategy for any organization, but especially those involving physicians; if you ask a fellow member why he or she joined SFMS and CMA, the answer is most likely to be that a colleague suggested it. Increased membership numbers translate to a more diverse and robust membership, greater resources, and a stronger voice of advocacy for the profession and for patients. And now members can reduce their 2011 dues by helping their peers join SFMS and CMA.

SFMS Recruitment Incentive Plan for 2011 Dues • Recruit 1-2 members: Receive $100 off SFMS 2011 dues.

• Recruit 3-4 members: Receive $150 off SFMS 2011 dues.

Mark Your Calendars for the • Recruit 5 or more members: Receive Annual SFMS-UCSF Student Mixer! FREE SFMS dues.

Thursday, September 23 on the UCSF • TPMG physicians: Recruit 4 or more campus (exact location TBA), 6:00 p.m. members (non-TPMG) and receive two free tickets to the annual dinner. to 7:30 p.m.

Contact Therese Porter in the MemDon’t miss this opportunity for the physician members of the San Francisco bership Department for more informaMedical Society to meet with the students tion, as well as talking points and other of UCSF in a fun and informal setting; materials. Call (415) 561-0850 extension pizza and beverages will be available. 268, or e-mail tporter@sfms.org.

It is always a wonderful chance for our physician members to meet and talk with Important Changes to the SFMS the next generation of doctors, who are Election Process: Voting Will Be equally eager to meet those already estab- Online This Year! lished in the profession. This is one of the This year the Medical Society is Medical Society’s most popular annual changing how active members cast their events, and we encourage our physician votes in the SFMS Board election—the members to attend. process will be completely paperless! Active members will cast their votes online using a new, secure online system. No

4 San Francisco Medicine July/august 2010

www.sfms.org

paper ballots will be sent out for the 2011 election. The slate of candidates and the new procedure for casting votes will be featured in the October issue.

Please Make Sure SFMS Has Your Correct Contact Information

The Membership Database Update mailing will be going out to the entire membership in mid-August. This is an opportunity to ensure that you receive important updates from the Medical Society. We are increasingly going paperless, so in order to stay fully up to date, be sure to include your e-mail address.

For Current Local News and Events Read the SFMS Blog!

The SFMS blog is updated regularly with health care news and events. This past month we posted great information and resources on pertussis, the meaningful use definition for EHRs, news on Healthy San Francisco, and more. We also posted some great local events of interest.

Stay up to date—read the blog! http:// sfmedicalsociety.wordpress.com.

Addiction Medicine Issue of San Francisco Medicine has been Well Received!

The June issue of San Francisco Medicine, themed: “Addiction Medicine: From Neurons to National Policy” has been noted and lauded far beyond our city limits. California’s mental health direc-

Classified Ads

tor has sent it to every county director; the president of the national addiction medicine society has said it should be read “by every medical student, and many physicians”; and much more. Have a comment on the issue? Visit our blog and let us know what you think! http:// sfmedicalsociety.wordpress.com.

Medical office to share in downtown San Francisco. This very comfortable medical office space includes a fine consultation office, two fully equipped patient exam rooms and reception area for patients. The office is conveniently located at 490 Post Street. A shared arrangement is negotiable based on the amount of time per week the space would be used. Please call Dr. Marjorie Smith at 415248-1050 for inquiries.

Hamilton walnut exam tables and treatment tables, refinished, recovered, art deco from 1930s, 10 pieces from $500-1300. Email for list/photos. dondero@sonic.net or 707-836-9009.

For Sale: Del Mar Area General Practice. Prime location with huge potential for practice expansion in San Diego. Established in 1990. Inquiries call: 858755-0510.

Get Your Copy of the 2010-11 Membership Directory and Desk Reference Today!

This new and improved health care resource contains a comprehensive listing of SFMS members with their specialties and contact information. It is also packed with helpful resources that no medical office should be without!

SFMS members receive one copy free as a membership benefit!

In an effort to make this great resource accessible to everyone, we’ve reduced the price. Members can now purchase additional copies for only $25 each and nonmembers now pay only $50.

To order a copy of this year’s Directory, or to inquire about advertising in next year’s edition, contact Jonathan Kyle at (415) 561-0850 extension 240 or jkyle@sfms.org.

www.sfms.org

July/August 2010 San Francisco Medicine 5

President’s Message Michael Rokeach, MD

The Evolution of Medical Ethics

W

e have dedicated this issue of San Francisco Medicine to a topic of immense importance, particularly in light of the dramatic changes our health care delivery system will likely undergo in the coming days.

This volume covers the broad spectrum of what we commonly call medical ethics. The lead article by Dr. William Andereck, one of our guest editors, outlines the rapid development of the discipline of medical ethics, both in large academic medical centers and in the typical and often small community hospital. The growth and relevance of hospital ethics committees is highlighted by the nationally recognized Program in Medicine and Human Values at CPMC, created in 2004, to assess the value of professional resources and expertise on community hospital quality.

Another article, by Dr. Bernard Lo, MD, describes the growing importance of teaching medical ethics to successive generations of physicians. He remembers his own medical training, when there was no literature or evidence on which to base decisions, no journal articles or textbook chapters explaining how to answer those difficult end-of-life questions posed by patients and families. But today medical ethics has become part of mainstream medical study.

We contemplate our attempts to relieve suffering during the final days of life while at the same time not deliberately hastening death, and the ways in which such decisions bring out confrontation between the legal and medical communities.

Albert Jonsen, PhD, an internationally recognized medical ethicist, addresses the challenging concept of “death panels”—a political hot potato used by opponents of health care reform legislation.

We are reminded of the famous Karen Ann Quinlan case of 1976, which gave a legal basis to termination of life support. This case changed discontinuing life support from murder or euthanasia to a reasonable medical act—if there was agreement on the futility of further treatment.

Medical care for patients nearing the end of their lives has embossed new words in our personal medical dictionaries. We now commonly discuss “nonbeneficial” treatment, POLST, palliative care, comfort care, end-of-life-care, advanced directives, and hospice when talking with patients, families, and colleagues.

The article on medical futility by another nationally renowned ethicist, Lawrence Schneiderman, notes that a health care profeswww.sfms.org

sional has an obligation to allow a patient to choose among medically acceptable treatment options, or to reject all options. This is clearly different from providing interventions that would be, in the judgment of the provider, countertherapeutic. No physician is obligated, either morally or legally, to do that.

The author explains that organized medicine is playing an increasingly important role in the debate over what constitutes “nonbeneficial treatment.” The CMA urges all health care institutions to adopt a policy on medical futility. There are a growing number of states adopting legislation that would protect physicians who refuse to provide “medically ineffective health care or health care contrary to generally effective health care standards.”

Still pending is the establishment of consensus standards of care, lending consistency to how individual physicians actually practice.

In his article, Jeffrey Beane, MD, describes the evolution of the Kaiser Permanente palliative care program in San Francisco, started by the Community-Based Medicine department. Staff initiated a randomized controlled trial comparing interdisciplinary inpatient palliative care to usual care. The results helped lead Kaiser Permanente to support investments in palliative care services.

A fascinating article by emergency physician Dr. Eric Isaacs and Dr. Robert Brody, a primary care physician and pain management specialist, describes how their hospital, San Francisco General, addresses the issue of care for the “unbefriended adult patient,” a term I hadn’t heard before. They highlight the controversy over who is best positioned to make decisions for these unfortunate souls. Is it the courts? Is it the ethics committee?

Should it be the attending physician, who has been entrusted to make decisions throughout the hospitalization?

I hope you find this edition of San Francisco Medicine as fascinating as I did. As we head toward major change (some predict turmoil) in health care delivery, what is obvious is that we will need to make more difficult decisions surrounding resource allocation. It seems patently clear that adding some thirty million more to the access side of health care will require a redistribution of valuable and often limited health treatment resources. I am somewhat anxious about the paradigm shift. Let’s all hope it never comes down to the following concept: Health care consists of three elements, quality, service and cost—pick any two.

July/August 2010 San Francisco Medicine 7

Independent But Not Alone.

James Yoss, M.D. Hill Physicians provider since 1994.

Uses Hill inSite and RelayHealth services for ePrescribing, eReferrals and secure online communications with patients.

Independence and strength are not mutually exclusive. Practices affiliated with Hill Physicians Medical Group retain independence while enjoying the strength that comes from being part of a large, well-integrated network of physicians. Hill’s advantages include: • Fast, accurate claims payments • Free electronic communication capabilities via RelayHealth • RN case management for complex, time-intensive cases • Deep discounts on EPM and EHR solutions for the federal mandate • Preventive care and disease management reminders for patients • High consumer awareness that attracts patients That’s why 3,500 independent primary care physicians, specialists and healthcare professionals have made Hill Physicians Medical Group one of the country’s leading Independent Physician Associations. Get more for your practice with Hill.

Get more information about Hill Physicians at www.HillPhysicians.com/Providers or contact: Bay area: Jennifer Willson, regional director, (925) 327-6759, Jennifer.Willson@hpmg.com Sacramento area: Doug Robertson, regional director, (916) 286-7048, Doug.Robertson@hpmg.com San Joaquin area: Paula Friend, regional director, (209) 762-5002, Paula.Friend@hpmg.com Hill Physicians’ 3,500 healthcare providers accept commercial HMOs from Aetna, Alliance CompleteCare (Alameda County), Anthem Blue Cross, Blue Shield, CIGNA, Health Administrators (San Joaquin), Health Net, PacifiCare and Western Health Advantage. Medicare Advantage plans in all regions. Medi-Cal in some regions for physicians who opt-in.

Editorial William Andereck, MD; Albert Jonsen, PhD; and Steve Heilig, MPH

Medical Ethics Today

M

edical ethics has hovered over medical practices since ancient times. It has had one remarkable consistency, the Hippocratic injunction: “I use treatment for the benefit of the sick and do them no harm or injustice.” At the same time, around that central tenet the ideas, problems, and purposes of medical ethics have changed significantly. In particular, after a long static period, the years after World War II brought dramatic changes in the ethics of medicine. The changes were responses to enormous progress in medical science and technology, as well as major changes in the social and cultural circumstances in which medicine was practiced.

This issue of San Francisco Medicine reviews some of these large shifts in medical ethics. Our authors do so not merely as a history, telling what it was like in the old days, but as an evolution, telling why we have moved in these new directions.

Certainly, older physicians often say, “Well, in the old days, we used to do such and such, and nobody complained,” or “We used to do such and such and somebody should have complained.”

Our authors look at some important areas of practice to find out why, in the course of time, physicians and the public began to see certain features of medical practice as open to criticism or as failing to live up to that central, unchanging element of ethics: “I use treatment for the benefit of the sick and do them no harm or injustice.”

Some of the pieces herein describe practical ways in which clinicians and hospitals have attempted to deal with some imperatives that have long bedeviled our health care system—how to best take care of people nearing the end of their lives, how to provide the best “palliative” care, how to best confront the “choices” regarding dying, and how to resolve conflicts when further effort to “cure” are judged to be, most likely, futile. Such topics have tended to dominate the medical ethics literature, to be the most common themes in cases presented to ethics committees, and to appear before the public in the media. But they are far from the only topics that arise and are addressed here; others include decision making when no surrogates can be found among the patient’s family or friends, how to best teach ethics to medical students, the tension between providing the best pain relief and minimizing widespread abuse of pain medications, finding effective ethical means of increasing www.sfms.org

donated organs, how best to “credential” those working in medical ethics, and more.

The nuances are many and the level of sophistication around the nation varies, but when the national media and political world erupts in uproars over such illusions as “death panels”—to name just one recent example—knowledgeable clinicians and other people tend to simply sigh, roll their eyes, and continue on with the mission of providing the best care possible amid the complexities and conflicts.

Of course, there is much mention of hospital ethics committees in these pages. Such committees arose in response to some highly visible cases a generation ago and have been formed and operated with considerable variety and success. We feel confident in stating that some of the most sophisticated committees have been operating here in San Francisco for decades now, and some of our authors, who chair the committees, describe their work. It is interesting how, over time, many clinicians have come to see ethics committees not as a nuisance or even a threat but as a useful resource in tough cases. The skillful leadership of some of our authors is an important reason for that evolution in credibility.

We are proud to present this fine roster of authors and articles on the evolution of medical ethics in our time and town.

William Andereck, MD, is an internist, codirector of the Program in Medicine and Human Values (PMHV) at CPMC, and a former editor of this journal. Albert Jonsen, PhD, is also codirector of the PMHV, original chief of the division of medical ethics at UCSF, professor emeritus of ethics in medicine at the University of Washington, the only honorary non-MD member of the SFMS, and author of many landmark books and articles. Steve Heilig is with both the SFMS and PMHV and is coeditor of the Cambridge Quarterly of Healthcare Ethics.

July/August 2010 San Francisco Medicine 9

The Evolution of Medical Ethics

The Emerging Discipline of Clinical Ethics The Perspective from California Pacific Medical Center

William Andereck, MD

D

r. Albert Jonsen and I first met in 1973. He had just moved from the presidency of University of San Francisco to the University of California, San Francisco, where he was developing a teaching program in medical ethics. I was a visiting medical student from Tennessee, newly introduced to some of the ideas that were being called “medical ethics” by my chancellor in Memphis, Dr. Ed Pellegrino, and his young protégé, David Thomasma. I joined Al’s small seminar, exploring the interface of medicine and philosophy. Al’s career has been largely academic, and mine, mostly clinical. Nevertheless, we have remained committed to the basic principles that we see as the “ethic” of the profession. We have both devoted considerable time and energy, within our separate communities, to raise the awareness of the principles, duties, and responsibilities inherent in the profession.

For the past six years we have joined together in a new challenge, addressing the disconnect between the academic world of medical ethics and the clinical environment of the community hospital, where most people receive their health care. Over the decades since Dr. Jonsen and I first met, the nascent field of medical ethics has grown into its own thriving discipline. Masters and doctoral degrees are offered in the field of bioethics or medical ethics at more than a dozen major universities in the U.S. alone. Every medical school has a medical ethics curriculum under some form or another, with a faculties numbering from one to dozens. There are six major journals devoted entirely to bioethics (and several others that include bioethics as a principal topic). Our own

Program in Medicine and Human Values (PMHV) is responsible for one of these journals, Cambridge Quarterly of Healthcare Ethics. It is clear that bioethics has achieved academic respectability.

A study of ethics committees throughout the country, done by PMHV visiting scholar Dr. Robert Pearlman and colleagues, revealed that while the ethics committee presence was vibrant at many academic centers, the community hospitals surveyed had fewer resources and less talent available to address their ethical challenges.1 Our program was founded in 2004 to determine whether the addition of professional resources and expertise, traditionally only available in academic institutions, can add to or subtract from the quality of care delivered at a large community hospital.

Some of our work has aimed at the “big picture.” We have sponsored colloquia to study topics such as the influence of commercialism in medicine, or the role of ethics in the determination of quality of care. We give Grand Rounds in many departments and respond to requests for study of particular problems in various specialties. The faculty of PMHV conducts a monthly conference for our medical residents. Internationally, the program sponsors a major conference for American and European scholars in bioethics.

Locally, we offer an annual workshop for ethics committee members in Northern California. We have completed two projects, the first a survey of ethical attitudes among our own clinicians; the second, a randomized controlled study of the efficacy of proactive ethical intervention in the intensive care unit. Our program is active within CPMC, as well as its regional

11 San Francisco Medicine July/August 2010 10 San Francisco Medicine july/august

partners in Sutter Health, the San Francisco Medical Society, and the Californian Medical Association in addressing some of the systematic problems within our delivery system. The PMHV is involved in several research projects as well.

All of these activities are peripheral to our core focus, however. That is our involvement at the bedside, performing what have been deemed “ethics consultations.”

History of the Ethics Committee at CPMC

Our entry into the world of ethics consultation is not new. CPMC began its first ethics committee in 1985. What distinguished the committee was not only its early start but its immediate focus on engaging physicians in discussions about some of the weighty decisions they were forced to make in the clinical setting. We began addressing these conversations with a small subcommittee of ethics committee members, the attending physician, and the patient or a surrogate, if possible.

What distinguished our process was that we didn’t just hold a conversation in a conference room; we went to the bedside, experiencing the reality of the case in the first person. At first, no one paid much attention to the fact that we were expanding the role of the medical staff committee to that of a committee that provided a clinical service.

The types of consultations we encountered were the standard but still always perplexing stuff of ethics in the clinical setting: The elderly diabetic who refused to have her foot amputated and chose to die of sepsis despite her family’s and doctors’ pleas for surgery, the www.sfms.org

transgender individual who was not asking to be informed about the details of an upcoming reconstructive surgery, the comatose man who had previously told his wife that he would never want to live that way. Each of these were explored, discussed, and lived in real time. In most cases some recommendation as to how to proceed was given, and in all cases, either the recommendation or fate determined the outcome.

The ethics committee had accumulated enough case experience in five years to publish its results in 1992.2 The fiftycase report was one of the first detailing ethics committee consultation activities.

Some of the lessons learned from those early activities remain true today. One realization was that “the process of defining goals and limits of care can be the most helpful function of the committee.”

Offering its subcommittee consultation process as its method of addressing issues of ethical concern, the ethics committee of CPMC has continued to serve the medical staff ever since.

To date, we have responded to 593 consultation requests since we began our service. The system worked fairly well until about 2003. Coincident with the development of the Program in Medicine and Human Values, the committee chair began to increase his time rounding in the intensive care unit. The program also became much more visible in other areas of the hospital. Subsequently, requests for consultation began to increase. The establishment of an ethics “hotline” also increased the volume of requests for help.

Increased consultation requests were accompanied by an increased sense of urgency on the part of the requesters.

Clinicians wanted advice much faster than allowed by the two- to three-day process that had been used in the past.

More consults meant more involvement from our committee members. Despite a modest stipend for participating in a consultation, it became increasingly difficult to assemble a subcommittee of busy professionals on short notice.

In response, the chair began to become more involved at the outset of the request. Many of the issues could be dealt www.sfms.org

with readily, either by providing missing information, helping to identify an appropriate surrogate, or fostering communication between disaffected parties. In 2006, the Program in Medicine and Human Values hired the institution’s first clinical bioethicist. Dr. Katrina Bramstedt joined us from the Cleveland Clinic, where she had been providing up to twenty-five ICU ethics consult a month, as well as providing support to the Cleveland Clinic’s busy transplant service.

The clinical ethicist now initially evaluates consultation requests received by the ethics committee. If the disposition of the case is relatively straightforward, such as helping to identify a surrogate or clarify a matter of hospital policy, the evaluation is conducted by a single individual, the “clinical ethicist,” who makes recommendations for the committee.

If a case presents a significant ethical, legal, or political issue, the chair appoints a subcommittee, and the consultation proceeds as before. This process has allowed the committee to process more requests without a significant increase in demands on committee members’ time. We have divided our consultations into three modalities: problem-focused (handled by a clinical bioethicist or the committee chair), comprehensive (handled by a subcommittee of ethics committee members), or complex (reviewed by the committee as a whole).

The number of consultations addressed by a subcommittee of ethics committee members has remained relatively stable at about one case per month. Last year the PMHV’s ethicist conducted ninety-seven consultations. Each case is reviewed at the monthly ethics committee meeting, during which the entire committee of nineteen members has the opportunity to discuss the case as well as the ethical challenges involved. The committee reviews the recommendation, which was made at the time of consultation, and reveals the outcome of the case. A detailed report of each case is then provided to the Executive Committee of the Medical Staff.

Clinical Experience

The committee performed 195

consultations in 2008 and 2009, and 167 of them were performed by our clinical ethicist, 23 were conducted by a subcommittee of ethics committee members, and 5 were considered by the committee as a whole. Most of the patients on whom we were consulted were critically ill, although almost 20 percent of the requests concerned patients outside the hospital. Twenty percent of the consultations were also performed in the ICU. As expected, the overwhelming issue concerned appropriate care at the end of life. The overall mortality rate for the 66 patients from the ICU was 45.5 percent. Physicians constituted more than half of the individuals requesting committee consultation. Over the years, we have seen an increasing number of consultation requests initiated by nurses, social workers, and patients themselves.

Additionally, the committee receives an increasing number of consultations from the palliative care service.

CPMC has an active transplant service, and the committee commonly reviewed issues related to that service (17 percent of consultations). Two other themes were common in our consultation experience. Fifteen percent of cases revolved around the problem of finding an appropriate decision maker for a patient or else having the medical team proceed as it saw best. An almost equal number of consultations involved conflicts between the family and the medical team. Often these conflicts involved communication or mistrust, but sometimes they represented clear conflicts of basic values.

About 10 percent of the consultations involved the difficult decision to discontinue medical support for dying patients.

In these cases the committee helped the medical team, or a distraught family, work through the best course of action in a difficult and sad situation.

Administrative Challenges

Since its inception as a medical staff committee in 1985 to a multinational program operating on almost 500,000 philanthropic dollars a year, the ethics activity at CPMC now embodied in the Continued on page 20 . . .

July/August 2010 San Francisco Medicine 11

The Evolution of Medical Ethics

Teaching Medical Ethics Evolution into the Modern Medical Mainstream

Bernard Lo, MD

A

s a resident, I was paged to the intensive care unit one night to see a seventeen-year-old who had undergone bone marrow transplantation for leukemia and now had chronic interstitial fibrosis and progressive respiratory failure.1 His patient’s father grabbed my hand and pointed to the ventilator, saying, “Stop, it’s enough. He doesn’t want this.”

I phoned the attending physician, who said that the patient was expected to die in the next few days. I asked whether we should extubate the patient, as his father had requested, and sedate him as he died.

The attending replied that the bone marrow transplant service wanted to continue intensive care; although he did not defend that decision, he deferred to it. We did agree on a Do Not Attempt Resuscitation order. I ordered some sedation for the patient and tried to comfort him and his family. The boy died just before I went off duty, more comfortable but by no means peaceful.

The father asked me, “Why didn’t they stop? Why?” I also asked, “Why?” Why were we so reluctant to withhold or withdraw life-sustaining technology from dying patients? Why was it acceptable to withhold cardiopulmonary resuscitation (CPR), but not to withdraw mechanical ventilation and to administer high doses of narcotics and sedation to a patient dying because of intractable ventilatory failure?

Why were we reluctant even to talk about these difficult issues?

The lack of medical ethics guidelines and training was commonplace when I trained thirty-five years ago. There were no journal articles or textbook chapters explaining how to answer the questions this patient posed. Since then, medical eth-

ics has become part of the mainstream of medicine. Medical students and residents now can read articles in medical journals and textbooks on medical ethics.1,2 Accreditation agencies require trainees to receive teaching on medical ethics. Licensing and board examinations contain questions on medical ethics. Hospitals must have an ethics consultation service. A number of academic health centers offer continuing medical education courses, certificates, or advanced degrees in medical ethics.

A P r a c t i c a l , C a s e - B a s e d Orientation

Because medical ethics was rooted in dilemmas from real patient cases, it focused on providing practical answers to busy clinicians. Highly theoretical treatises tend to have little impact on actual decisions by physicians. Although the ethical foundations of medical ethics have been articulated and debated, there has been more emphasis on specifying ethical principles to provide practical guidance to physicians who must make actual decisions. Broad principles, such as respect for persons and their autonomy, need to be made much more specific with regard to particular situations—for example, decisions regarding life-sustaining interventions for patients who lack decisionmaking capacity, like the one I described.

Similarly, the teaching of medical ethics has had a practical orientation, with casebased discussions proving more useful than didactic lectures. Through such discussion, trainees learn how to provide reasons for their decisions that are persuasive to other people involved in a case.

Effective teaching of medical ethics takes into account that ethical dilemmas

12 San Francisco Medicine July/August 2010

have interpersonal and affective components as well as an intellectual foundation.

Often, ethical dilemmas are resolved not by providing more cogent arguments but by establishing trust and listening with empathy. Thus, in addition to the justifications for a decision, teaching on medical ethics also commonly addresses effective communication. A particular challenge for a physician is to listen carefully and nonjudgmentally to patients or to families who disagree with his or her recommendations, instead starting discussions from the perspective of the patient and family. Such listening has an ethical basis—it shows respect for patients and their families. But it also is an effective strategy for building trusting and making it more likely that patients and families will listen to the physician’s information.

Furthermore, dilemmas about endof-life care commonly raise intense emotions in physicians in training, who often have little personal experience with death and who are under intense stress. Thus, teaching about medical ethics is placed in the context of professional and personal development. Students and residents often find it a challenge when presented with patients or colleagues from other cultural backgrounds whose core moral values than differ radically from their own.

Trainees need to distinguish their own personal moral values—which others may not share—from ethical principles that are shared within the medical profession.

At the same time, as physicians in training are socialized into the medical profession, they learn expectations and values—such as integrity, compassion, and dedication to patients—that they are expected to internalize and adopt as habits or www.sfms.org

virtues. As “professionalism” has become an explicit part of medical training, the goal of inculcating desirable professional traits needs to be balanced with a more philosophical goal of understanding the rationale for these expectations and how they might conflict with each other.

Broadening the Scope of Ethics Teaching

Medical ethics has expanded beyond its initial focus on end-of-life decisions, driven by cases that present new decisions to physicians. New clinical, technological, or organizational developments present novel dilemmas for physicians who are trying to act in their patients’ best interests. In the 1980s, the AIDS epidemic put surgeons and obstetricians who were exposed to blood when caring for HIV-infected patients at personal risk for contracting a fatal disease. During the 1990s, many primary care physicians believed they were justified in deceiving managed care plans that set unreasonable procedures for authorization of services.

More recently, computers and the Internet revolution raise novel ethical dilemmas regarding the confidentiality of electronic medical records, the impact of medical information on the Internet on the doctorpatient relationship, and point-of-service advertising of medical products. New scientific developments have also raised new dilemmas regarding research ethics.

Human reproductive cloning, stem cell research, and whole-genome sequencing have raised issues that fall outside the traditional framework for human subjects research as articulated in the seminal Belmont Report. Furthermore, debates over health care reform and the 2010 Patient Protection and Affordable Health Care Act have sparked public debates over justice-related issues regarding access to medical care and the cost of care. Teaching in medical ethics needs to be continually updated to cover such emerging topics, which trainees will hear about or face in their clinical work. Although some of these issues are not as dramatic as certain cases about decisions at the end of life, it is important for trainees to learn how to address the day-to-day dilemmas that

www.sfms.org

permeate the practice of medicine.

Educators need to decide which of many important and interesting topics in medical ethics should be featured in ethics teaching. In light of the limited time available for ethics training relative to other core educational activities, such as pathology and genomics, educators will need to identify which ethics topics are “core” and must be taught to all students and residents regardless of their ultimate career paths. In setting priorities, it is helpful to clarify the goals of all medical education, including hard sciences such as genomics and immunology. Some teachers might advocate comprehensive coverage of major topics in medical ethics. However, this may not be practical for several reasons. As with other subjects in the medical school and residency curriculum, there is not enough time to cover everything. Moreover, no matter how comprehensive the curriculum, there will topics that emerge as important for physicians after they complete their formal training. Currently the dominant educational philosophy is not to try to cover everything trainees will need in their careers but instead to teach analytic skills needed for lifelong learning, so that trainees will be able to resolve dilemmas they have not previously studied. In medical ethics, such skills would include learning how to frame an ethical dilemma, how to analyze the strengths and weaknesses of ethics arguments and positions, how to address the emotional and interpersonal causes of ethical disagreements, and how to seek help in particularly difficult cases.

Case discussions that capture the students’ interest stimulate active learning of these analytical skills. Trainees enjoy discussing cases that they have encountered in their clinical work or situations that have received prominent press coverage. At UCSF, we have moved from “set cases” to discussing cases from the medical students’ own experiences, which they write up before class. We have found that medical students participate eagerly in discussions facilitated by physicians whom they hold in high regard as clinicians and educators. Undoubtedly, such physicians also provide valuable role modeling, showing that experienced and skilled physicians

face perplexing ethical issues. In addition, we have found that writing a paper that analyzes an ethical dilemma they have encountered helps students develop their critical thinking skills.

Looking to the Future

The field of medical ethics has flourished because it is rooted in dilemmas physicians encounter when caring for patients or carrying out medical research. Teaching has been effective when it addresses the ethical problems that students and residents face in their work. In the future, it is likely that new ethical problems will spring from advances in medical science or clinical practice. For example, if personalized medicine and pharmacogenomics become clinical reality, there will be new dilemmas regarding disclosure of incidental information to patients and disclosure to relatives of findings that would significantly alter their medical care. Similarly, if patient-controlled health records become widespread, ethical issues of inaccurate information, privacy, and the impact on the doctor-patient relationship will need to be looked at afresh.3 Teaching on medical ethics will remain vigorous if it evolves to include these fresh topics.

Bernard Lo, MD, is a professor of medicine and director of the program in medical ethics at UCSF. He is national program director for the Greenwall Faculty Scholars Program in Bioethics. He developed a course on responsible conduct of research that postdoctoral fellows and junior faculty take each year. He and his group also carry out research on ethical issues in human participants research, end-of-life decisions, and stem cell research.

References Lo B. Resolving Ethical Dilemmas: A Guide for Clinicians, fourth ed. Philadelphia: Lippincott Williams & Wilkins. 2009.

2 Jonsen AR, Siegler M, Winslade WJ. Clinical Ethics: A Practical Approach to Ethical Decisions in Clinical Medicine, seventh ed. New York: McGraw-Hill. 2010.

3 Lo B, Parham L. The impact of new information technology on the doctorpatient relationship: Promises and pitfalls.

J Law Med Ethics 2010; 38:217-226.

1

July/August 2010 San Francisco Medicine 13

The Evolution of Medical Ethics

Medical Futility A Brief Tour

Lawrence Schneiderman, MD

A

lthough the concept of medical futility goes back to ancient times, it recently became a subject of impassioned debate, resulting from the clash of the patient’s rights movement of the 1960s with the almost simultaneous development of high-technology medicine and an emphasis on medical specialization arising from advances in the basic sciences.

Two ideological positions took hold: Patients have the right to receive whatever medical treatment they want, and a treatment cannot be regarded as futile as long as it can produce a physiological effect on some part of the patient’s body (a position advocated usually by the medical specialty superintending that body part).

In 1986, Brett and McCullough argued that patients are entitled to choose only from a range of choices that are medically suitable; that when a patient seeks medical care, an established or theoretical medical basis should exist for the patient’s request.

In the absence of at least a modicum of medical benefit, the whole point of the physician-patient interaction disappears.

Already the California Appellate Court, in its 1983 decision Barber v. Los Angeles County Superior Court, had pointed out that there was a significant difference between an effect on a body part or function (such as artificially maintaining respiration) and a benefit to the patient as a whole (namely whether the patient has the capacity to appreciate that effect as a benefit). The justices authorized the withdrawal of a life-sustaining ventilator on the grounds that merely preserving bodily functions in a patient judged to be permanently unconscious was not an appropriate goal of medicine. Since then the decision has been cited innumerable times in high

courts around the country as one of many precedents for withdrawing unwanted and futile treatments. During the decades of the 1980s and 1990s, medical and nursing associations, along with bioethics groups, began formally taking positions and recommending that futile treatments be withheld or withdrawn. In the same year, the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research issued a report, Deciding to Forego[sic] Life-Sustaining Treatment, in which it stated: “A health care professional has an obligation to allow a patient to choose from among medically acceptable treatment options . . . or to reject all options. No one however, has an obligation to provide interventions that would, in his or her judgment, be countertherapeutic.”

Subsequent professional statements explicitly cautioned physicians against applying futile interventions. Thus the Hastings Center (1987), the American Nurses’ Association (1988), the American Academy of Neurology (1989), the Society of Critical Care Medicine (1990), the American Medical Association (1991, 2009), the American Thoracic Society (1991), and the American Heart Association (1992) came out in favor of limiting medical care that is no longer beneficial to patients.

In 1991, the American Medical Association’s Council on Ethical and Judicial Affairs published Guidelines for the Appropriate Use of Do-Not-Resuscitate Orders.

The Council held that CPR efforts may be withheld, even if previously requested by the patient, “when efforts to resuscitate a patient are judged by the treating physician to be futile.” In the same year, the American Thoracic Society took a similar stand and

15 San Francisco Medicine July/August 2010 2010 14 San Francisco Medicine July/August

argued that “forcing physicians to provide medical interventions that are clearly futile would undermine the ethical integrity of the medical profession.” During the same period, the Society of Critical Care Medicine’s Task Force on Ethics published a consensus report declaring that “treatments that offer no benefit and serve to prolong the dying process should not be employed.”

In 1993, the Ethics Committee of the Society of Critical Care Medicine specified severe, irreversible brain damage, irreversible multiorgan failure, and metastatic cancer unresponsive to treatment as categories of “patients who may be excluded from the ICU, whether beds are available or not.” The Committee also designated “patients who should be excluded,” as those who refuse intensive care, who are brain dead, or who are in a permanent vegetative state.

At the state level, the California Medical Association urged adoption and recommendation to the American Medical Association of a clearly defined “nonbeneficial treatment” policy in support of the AMA Code of Medical Ethics of 1996, which declared, “All health care institutions, whether large or small, should adopt a policy on medical futility.” The AMA further stated that policies on medical futility should follow “due process in specific cases,” starting with earnest attempts to deliberate and negotiate what constitutes futile treatment and what falls within acceptable limits for the physician, the family, and the institution, concluding that “if transfer is not possible, the intervention need not be offered.” Most recently, in 2009, the AMA took a significant step further when they adopted Resolution 003, Limiting Futile Care at End of Life: “RESOLVED, That our American Medical Association seek legislation by the www.sfms.org www.sfms.org

United States Congress that will allow the creation of a methodology directed by physicians (MDs/DOs) that permits physicians (MDs/DOs) to either not engage in or to suspend futile care at the end of life; and that those physicians (MDs/DOs) be given immunity from liability when such decisions are made in good faith and within the standard of care with clear and convincing legal and ethics standards.”

Another state, Texas, passed an Advance Directives Act in 1999 that sets out specific steps to resolve disagreements prior to withdrawal of futile treatment. If a dispute is not resolved, and if after ten days of searching no other hospital can be located that will accept the patient, and if a judge determines there is no reasonable likelihood of finding a willing provider of the disputed treatment, the treatment “may be unilaterally withdrawn by the treatment team with immunity from civil and criminal prosecution.” This “legal safe harbor” for physicians, institutions, and ethics committees is the first of its kind in the country.

The Uniform Health-Care Decisions Act lends further support at the federal level: “A health care provider or institution may decline to comply with an individual instruction or health care decision that requires medically ineffective health care or health care contrary to generally accepted health care standards applicable to the provider or the health care institution.”

To intercept any doubt, the Act further explains, “‘Medically ineffective health care,’ as used in this section, means treatment which would not offer the patient any significant benefit.” This statute has already been adopted by more than a half dozen states, including California.

Meanwhile there are community efforts throughout the country to address the issues of medical futility’s meaning and ethical implications and establish consensus standards of care. In the past several years, hospitals, state legislatures, and working groups of professionals and laypersons have developed consensusbased futility policies. In 1998, I organized a conference that involved participants from twenty-six California hospitals. All but two of the hospitals had specific futility policies, and all but two of the remaining twentywww.sfms.org

four hospitals defined futile treatment in terms of benefit to the patient rather than physiological effect. This division provides a basis for a definitional “majority standard” of care based on patient benefit and also a “respectable minority.” In my judgment, a “respectable minority” hospital that permits physicians to continue life-sustaining treatment on patients other hospitals deem futile has taken an ethical position and should be willing to accept such patients in transfer. Certainly this would spare all the contending parties long, expensive, and emotionally draining court disputes.

More recently, in 2009, the San Diego Bioethics Commission, comprising representatives from eleven San Diego area hospitals, including a major university hospital, a Veterans Administration hospital, several large health maintenance organizations, a military hospital, and a Catholic hospital, came together and, after a year of discussions, adopted a model benefit-based futility policy. All these events suggest that the profession and society are already in the process of examining, understanding, and resolving issues of medical futility.

It should be acknowledged that some critics insist that only a narrow physiologic definition of medical futility is ethically defensible because only a narrow definition is “value-free.” Contrary to the assertion that physiologic futility is value-free, I argue that physiologic futility entails a value choice.

Specifically, it assumes that the goals of medicine are to preserve organ function, body parts, and physiologic activity—an assumption that, in my opinion, departs dramatically from the patient-centered goals of medicine. This narrow focus is also proving to be dangerous. For example, many diabetes specialists promoted strict control of blood glucose on the assumption that producing a physiological effect (lowering blood glucose) was equivalent to achieving a benefit for the patient (preventing complications and prolonging life).

Well-designed randomized control trials examining patient outcomes showed that strict control failed to reduce adverse cardiovascular outcomes and either increased or had no effect on mortality; moreover, strict control increased the risk for severe hypoglycemia in type II diabetes. Another

example of effect-benefit confusion that proved harmful, even fatal, occurred when physicians imprudently began prescribing erythropoietin, a red cell growth factor, to raise blood levels to a “normal” range in anemic patients with cancer and chronic kidney disease. Once again, this physiological effect was assumed to be beneficial. Unfortunately, the treatment resulted in significantly more harms to patients, including stroke, heart attack, hospitalization, and death.

In summary, medicine, like all human enterprises, has its inevitable limits. While these limits may shift with advances in technology and science, it is deceptive to act as though medicine can conquer all disease, or even death itself. Right now, many physicians still practice and many patients still receive treatments in an environment where ad hoc and often capricious decisions are rendered according to no agreed standard. Patients and their families are sometimes forced to endure and pay for inhumane, unwanted treatments because of an individual physician’s misguided notions of medical duty. Many physicians admit that they practice “defensive medicine,” fearing that anything less than mindless continuation of aggressive treatments would make them legally vulnerable. As a consequence, they give the courts little guidance but to “do everything possible.” It is not sufficient merely to refrain from offering or using interventions that do not work. Rather, I, along with my colleagues Kathy FaberLangendoen and Nancy S. Jecker, have urged that the discussion of futility move beyond definitional debates to promoting an ethic of care that means truly caring for patients even when the inevitable limits are reached.

Lawrence J. Schneiderman, MD, is professor emeritus in the Department of Family and Preventive Medicine and adjunct professor in the Department of Medicine at the University of California, San Diego. He is founding co-chair of the UCSD Medical Center Ethics Committee and is a recipient of the Pellegrino Medal in medical ethics. He is presently a visiting scholar in the Program in Medicine and Human Values at CPMC. For a full list of references, visit www. sfms.org/archives.

July/August 2010 San Francisco Medicine 15

The Evolution of Medical Ethics

Euthanasia Death Panels, Death Planning, and Death Policy

Albert R. Jonsen, PhD

S

arah Palin dropped the words “death panel” into the public debate over President Obama’s health reform plan. She claimed that “my parents or my baby with Down syndrome will have to stand in front of Obama’s ‘death panel’ so his bureaucrats can decide, based on a subjective judgment of their ‘level of productivity in society,’ whether they are worth health care.” The occasion for her remark was an obscure provision in one of the earlier drafts that allowed reimbursement once every five years for a doctor visit to discuss end-oflife care—that is, the need for pain and symptom management and for hospice care—and the values of advance-care planning. Palin’s twist on this provision stirred up a storm. Representative Boehner (R-Ohio) said this bill would “start us down a treacherous path toward government-encouraged euthanasia.”

Raucous town halls echoed with shouts of “Nazi euthanasia” and “mercy killing.”

In 1972, I joined the UCSF faculty as its first professor of medical ethics.

Over the subsequent forty years, I have seen the topic of euthanasia change dramatically, in public opinion, in medical understanding, and in legal strictures.

The early seventies were still close to the horrors of the Holocaust. Euthanasia had been initiated by the Nazi government in its early years. Persons considered hopelessly ill or disabled or mentally deficient were starved to death or injected with lethal drugs in special institutions. This secretive policy was enabled by a general toleration among German physicians for the idea that so called “mercy killing” was a medical duty. It was better for certain sorts of persons to die than to live in

their state of misery. This policy was not aimed specifically at Jews but at any German unfortunate enough to fall into these categories. In the final years of World War II, the policy was intensified: Certain patients were considered “useless eaters,” those who, in Palin’s words, lacked a level of productivity in society.

The word euthanasia, coined by the sixteenth-century English philosopher Francis Bacon from the Greek words for “good death,” meant a solicitous care that the sufferings of final days be relieved as much as possible. Through the nineteenth century, euthanasia described only the physician’s duty to assuage the pain of dying. One physician wrote, in 1826, that “euthanasia is a science which checks oppressing features of illness, relieves pain, and renders the supreme and inescapable hour a most peaceful one . . . but never should the physician be permitted, prompted either by other people’s request or by his own sense of mercy, to end the patient’s pitiful condition by purposely and deliberately hastening death.”

In the years after World War II, medical science and practice advanced dramatically. Pharmacology learned to manipulate molecules to target drugs to diseases; surgery entered the bodily cavities more boldly; mechanical devices were designed to support breathing, renal function, and heartbeat. Through the 1960s, intensive care units became an intrinsic part of the hospital. In effect, many lives, otherwise doomed to death by episodes of disease, were saved and extended.

However, the “inescapable hour,” in the words of our nineteenth-century doctor, did come, and the same techniques that so often saved and extended lives were

16 San Francisco Medicine July/August 17 San Francisco Medicine July/August 2010 2010

applied to prolong an inevitable dying process.

Some observers wondered whether, since physicians created extended but inevitably dismaying and difficult dying, they should be allowed to bring those lives to an end, particularly if the patient so desired. The first step in this direction was to endorse the idea that it was ethically correct for a patient and a doctor to stop using life-sustaining devices that were no longer benefiting the patient, or were causing greater burden than benefit.

The Catholic idea of “extraordinary measures” supported this idea. The Karen Ann Quinlan case in 1976 gave a legal basis to termination of life support, “if there is no reasonable possibility of Karen’s ever emerging from her present comatose condition to a cognitive, sapient state” (Quinlan, 1976). Discontinuing life support was no longer considered murder or euthanasia, as Karen Quinlan’s doctors had originally contended, but a reasonable medical act, based on the futility of further treatment and the wishes of the patient or the surrogates.

Once this had been widely accepted, a troubling problem remained: What of persons who were not kept alive by machines but who suffered from lethal and painful diseases and wished to be freed, persons who anticipated dreadful deaths from Lou Gehrig’s disease or the ravages of Alzheimer’s? Voluntary euthanasia societies, first founded but hardly noticed in the years before World War II, revived and began to urge permissive legislation, without success. Euthanasia was too closely linked to the Holocaust to win public approval.

Gradually, however, these memories www.sfms.org www.sfms.org

faded. Heartrending stories of prolonged dying under medical management, the proclamations of the Hemlock Society (founded in 1980 to promote voluntary euthanasia), and the ghoulish ministrations of Dr. Kevorkian brought euthanasia back to public attention. The Netherlands had opened the way by permitting voluntary euthanasia in the 1980s. But in the U.S., bills to liberalize the laws against euthanasia appeared in state legislature but rarely even moved to a vote. Often those bills were flawed by overly broad definitions and confusing provisions. It was difficult in principle to distinguish euthanasia from murder, solely on the intent of the perpetrator. Finally, in addition to textual and theoretical problems, legislators often shy away from these controversial ethical issues.

Then the movement to legalize euthanasia moved from the legislatures to the people. Initiatives put propositions on the ballots in California, Washington, and Oregon. In the early 1990s, citizens in California and Washington defeated, by a tiny margin, a proposal to allow physicians to end the lives of requesting terminally ill patients. In 1997, a proposition allowing such action passed in Oregon (in fact, it passed a second time when resubmitted to the voters after legal challenge—this time with 60 percent approval). In 2008, Washington State voted again and approved by 58 percent a proposition allowing what is now called “physician-assisted death.”

This current terminology is more important than it might seem. The long debate has moved from the general term “euthanasia” to “voluntary euthanasia” to “physician-assisted suicide” to “physicianassisted death” or “aid in dying.” Each change of name signifies a change in concept. The early “euthanasia” swept together involuntary, nonvoluntary, and voluntary ending of life and the agent could be a physician or a friend or a spouse. (“Mercy killing” was a common synonym.) Voluntary euthanasia included the physician as an agent of death. The defeated California and Washington initiatives allowed physicians to cause the death of a requesting patient by ad-

www.sfms.org

ministering a lethal injection. Physicians generally saw this as a violation of their obligation to heal and not to harm.

The successful Oregon initiative changed this. It only permits a physician to prescribe medications that, in certain doses, would be lethal. The patient, who has a verified prognosis of a terminal condition, must be mentally competent to make this request and physically able to take the medication. In effect, the patient is in control from beginning to end of this process. The patient in essence commits suicide by using a legally prescribed medication. Suicide is not contrary to American law; the assisting of suicide, which is illegal, is rendered legal by following the prescriptions of this legislation. Physicians cooperate but do not cause, and their cooperation consists in prescribing with the intent of assuaging painful death.

These changes in concept and in legal formulation also change the ethics.

If competent consent is required, the ethical principle of autonomy is no longer violated. If the physician is excluded as an agent who causes death, the ethical principle that forbids doing harm seems alleviated. The sole question remaining is whether cooperation in suicide is ethically reprehensible, particularly when, as proponents claim, that cooperation seems to conform to the medical duty to alleviate pain and, as Hippocrates would say, lessen the violence of disease.

This, then, is where we stand today.

The debate over euthanasia has evolved dramatically. The U.S. Supreme Court, in a landmark case, declared “the principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment” (Cruzan 1990). The Court rejected the claim that physician-assisted suicide is also a constitutionally protected liberty but, at the same time, admitted that “Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society.”

Justice O’Connor’s concurring opinion notes, “Every one of us at some point

may be affected by our own or a family member’s terminal illness. There is no reason to think the democratic process will not strike the proper balance between the interests of terminally ill, mentally competent individuals who would seek to end their suffering, and the state’s interests in protecting those who might seek to end life mistakenly or under pressure. . . . States are presently undertaking extensive and serious reevaluation of physician-assisted suicide and other related issues. The challenging task of crafting appropriate procedures for safeguarding the liberty interest is entrusted to the laboratory of the States” (Washington v. Glucksberg, 1997).

Whether California—its citizens, patients, and doctors—will prove a laboratory in which these diverse, contentious issues can be distilled into an ethically satisfactory policy remains to be seen.

Albert Jonsen, PhD, is codirector of the Program in Medicine and Human Values at CPMC, original chief of the division of medical ethics at UCSF, professor emeritus of ethics in medicine at the University of Washington, the only honorary non-MD member of the SFMS, and author of many landmark books and articles.

July/August 2010 San Francisco Medicine 17

The Evolution of Medical Ethics

Trust, but Verify?

The Ethics of Opioid Agreements for Patients with Chronic Pain

Ben A. Rich, JD, PhD

S

ome prominent members of the pain medicine community argue that the major public health problem of prescription drug abuse actually imposes on them a professional responsibility to deter drug abuse and diversion, which is as important as their duty to provide effective pain management. A consequence has been the proliferation of “opioid contracts,” wherein patients certify that they will comply with all aspects of medical treatment or risk being cut off from their pain medications.

On this issue, I am inclined toward the view of the late Hans Jonas, who wrote: In the course of treatment, the physician is obligated to the patient and to no one else. He is not the agent of society, nor of the interests of medical science, the patient’s family, the patient’s cosufferers, or future sufferers of the same disease.

The patient alone counts when he is under the physician’s care.

(Jonas 1969) In this seminal essay, Jonas goes on to recognize a single exception: a raging epidemic in which there is a necessity to quarantine the contagious sick to protect others in the community. When analogizing this to pain management, Jonas’s position might accommodate a stringent opioid contract when there is clear and convincing evidence that a particular patient poses a serious and imminent risk of drug abuse or diversion, but not as a matter of routine custom and practice for all patients receiving opioid therapy.

The fiduciary duty of the physician to promote the patient’s interests in receiving

effective treatment has never before been viewed as commensurate with a duty to society except in the most extraordinary of exigent circumstances.

I do not categorically object to the use of opioid contracts in all instances. My chief objection is to the pervasive trend of pain physicians and clinics to require the execution of such documents as a condition precedent for all patients who are appropriate candidates for opioid analgesia. This approach is inconsistent with current policies such as that of the Federation of State Medical Boards (2004) and the American Pain Society/ American Academy of Pain Medicine consensus guidelines (2008), both of which indicate that the use of such agreements may be clinically indicated when the prescriber has legitimate concerns about or the patient has a history of prescription drug abuse.

Documenting “pharmacovigilant opioid prescribing practice is, whether acknowledged or not, a compelling aspect of the rapid proliferation of opioid contracts in the field of pain medicine. It also helps to explain the sometimes draconian provisions found in some contracts, such as precluding the patient from driving while on opioid therapy, permitting the suspension of opioid therapy for any contract violation, or utilizing a private detective to monitor patients for possible abuse in addition to mandatory random urine drug screens” (Fishman et al 1999). Although it does not contain any of these particularly onerous provisions, the American Academy of Pain Medicine sample opioid contract imposes no explicit duties on the physician (in contrast to the long list of demands upon the patient) and it

19 San Francisco Medicine July/August 2010 2010 18 San Francisco Medicine July/August

states (somewhat euphemistically) that the purpose of the contract is “to protect your access to controlled substances and to protect our ability to prescribe for you” (Fishman et al 2002).

Inasmuch as patients are unlikely to have ever before been told that they must sign an agreement in order to receive a prescription for a medically indicated treatment, as opposed to a consent form or an agreement related to payment for services rendered, such a demand would be likely to prompt a reasonable patient to wonder why their verbal assurance that they will take the medication as directed would not be sufficient. When a review of the agreement reveals that they will be subject to random urine drug screens, the patient might well perceive that they are not considered trustworthy.

Opioid Contracts/Agreements Are Not Merely Consent Forms Informed consent to virtually all medical diagnostic and therapeutic measures is both the ethical and legal standard of patient care in the United States.

It is not merely customary but highly advisable for the essential elements of the informed consent dialogue to be included in a written consent document that is signed by the patient and included in the patient’s medical record. This process, when carried out conscientiously, enhances the quality of the physicianpatient relationship. Opioid therapy warrants a thorough, ongoing, and carefully documented informed consent dialogue.

Such a consent process should include not only the known risks, anticipated benefits, and reasonable options to opioid therapy but also the details of the treatment plan www.sfms.org www.sfms.org

and the performance expectations of both patient and physician.

Arguably, many of the purported benefits and objectives of opioid agreements can be achieved through the informed consent process without the potential negative aspects discussed in this paper.

Opioid Agreements Are “Contracts of Adhesion”

A prominent pain clinician once noted, “Whether you are in the jungles of Columbia, the streets of the inner city, or the wards of a major medical center, those who have the drugs have the power.” Opioid contracts as commonly used are classic contracts of adhesion in legal parlance.

One party with all or most of the power, the physician, places the written contract before the patient and declares: Sign this if you wish me to prescribe the medication that we hope and expect to relieve your pain. If you refuse, you will need to find another doctor. Such contracts are neither illegal nor unenforceable, but they are an anomaly in patient care.

The Rationale of Enhancing the Physician-Patient Relationship

It has been suggested that such contracts are “ideally intended to enhance the therapeutic relationship by initiating and supporting an alliance between the patient and the physician” (Fishman et al 1999). First, no reasons are given why a contract would achieve this objective more readily and effectively than a thorough informed consent process. In my view, for the reasons stated below, it is significantly less likely to do so. The ethical and legal foundations of the informed consent doctrine focus on respecting and promoting individual patient autonomy and dignity. By contrast, mandating that a patient accept a long list of conditions set forth in an opioid agreement prior to receiving treatment seems highly unlikely to foster a genuine therapeutic alliance.

The Rationale of Promoting Patient Adherence Imparting to patients the importance of taking opioid analgesics only as directed by the prescribing physician,

www.sfms.org

and safeguarding the medication so that it cannot be accessed by others, is another reason consistently given for use of opioid contracts for all patients.

Clearly there are many other therapies in which there is also a critical need to foster patient adherence to the treatment plan, and data document that in some of these other therapeutic settings nonadherence is common and is associated with grave consequences (Fishman et al 2000).

Nevertheless, medication contracts are not customarily used in these clinical settings. The term “pharmacovigilance” has been invoked to characterize the professional responsibility of the prescribing professional in the context of opioid therapy. The scrupulous use of a comprehensive opioid contract purportedly constitutes clear and convincing evidence that the physician is meeting that responsibility. While arguably some form of “pharmacovigelance” is indicated whenever prescription medications are used in patient care, as previously noted, contracts have thus far not been recommended as essential to meeting that responsibility.

Finally, according the APS-AAPM Guidelines Panel, there is insufficient evidence to evaluate the effects of opioid contracts as positive or negative on clinical outcomes (Chou et al 2008).

The Role and Significance of Trust in the Physician-Patient Relationship

In defense of the use of opioid contracts and random urine drug screens for all patients receiving opioid therapy, some pain medicine physicians offer several justifications. First, they insist, borrowing the Cold War phraseology, that a “trust but verify” approach is reasonable given the serious public health problems of drug abuse and addiction.

Second, they maintain that imposing these measures routinely on all patients undergoing a trial of opioid therapy actually minimizes the potential stigmatizing effect by reducing it to a mere matter of standard practice rather than a measure targeted to particular patients who have been identified as “at risk.” Thus far, with

few exceptions (Arnold et al 2006), the medical literature demonstrates a paucity of thoughtful analyses of the serious risks posed by the wholesale use of rigid, onesided opioid contracts and random urine drug screens. Victims of chronic pain are not naïve to the ways of the health care system. Perception becomes reality as readily here as elsewhere in society. Pain patients know that it is highly uncommon for a “trust but verify” approach to be taken in a patient care setting. Chronic pain patients for whom opioid therapy is medically indicated have been singled out as warranting this thus far unproven approach to balancing the patient’s need for pain relief and political/legal concerns about drug addiction and abuse. Thus far there has been woefully inadequate attention to such an approach’s potentially devastating impact on the trust that has been deemed essential to the physicianpatient relationship since the Hippocratic era (Hall 2002).

Conclusion

Unless and until there is concrete evidence demonstrating that the benefits of imposing opioid contracts and random urine drug screens on all patients receiving opioid therapy outweigh the risks and burdens on patients and the integrity of the physician-patient relationship, such measures, as provided by the national policies and guidelines noted above, should be limited to patients with a known history of addiction or substance abuse or whom the prescribing physician reasonably believes, in the exercise of sound clinical judgment, poses a significant risk of harm. This limitation would in no way constrain a thorough and welldocumented informed consent process that includes a detailed plan of care with reasonable and clearly articulated expectations for patient adherence to the treatment plan.

Ben A. Rich, JD, PhD, is a professor of the School of Medicine and the Alumni Association Endowed Chair of Bioethics at the U.C. Davis School of Medicine.

For a full list of references, see www. sfms.org/archives.

July/August 2010 San Francisco Medicine 19

The Emerging Discipline of Clinical Ethics Continued from page 11 . . .

Program in Medicine and Human Values has no longer been able to fly under the radar of the larger organization. Perhaps the most significant recognition about the ethics committee’s function was that it was actually providing a clinical service to the patients of the hospital. This is a major departure from the normal activities of a medical staff committee and therefore something that needed to be thought through with the medical staff leadership in order to make sure the committee structure was not overstepping its role and purpose.

The introduction of a clinical ethicist into the hospital setting, particularly the ICU, also raised appropriate questions about how such an individual was to be qualified and credentialed in the medical staff process. Liability issues were also raised. Most medical staff ethics committees operate solely within the protections of peer review afforded medical staff committees. Drawing this responsibility to the bedside and having direct impact on medical decision making, even if it is only advisory, stretches the definition of medical staff functions and requires further investigation into the liability issues.

At last review, no medical malpractice insurer has developed a policy specific to the activities of a clinical ethicist.

Both issues were addressed by requiring that the clinical ethicist be either an employee of the institution or a member of the medical staff. The job description of the employee and the reporting process through the PMHV allows review of credentials and ongoing review of competence. The liability of the ethicist is covered as it is with any other ancillary clinical employee, such as a nurse, dietician, pharmacist, or therapist.

Members of the medical staff are required to have malpractice insurance covering all clinical activities. That would presume to include clinical ethics activities. Physician ethicists are credentialed and reviewed in the standard medical staff process.

We recognize that our policy precludes any independent clinical ethicist from practicing at CPMC, but we also realize

that we are one of the first institutions in California to address the issue at the level of medical staff organization.

Conclusion

California Pacific Medical Center has had a functioning ethics committee and ethics consultation service for twenty-five years. During this period, the committee has evolved from a medical staff committee of peers providing counsel to our colleagues confronted by the moral challenges inherent in clinical medicine to an active consultation service using professional, PhD-level bioethicists. The traditional role of a medical staff committee, to provide oversight and peer review of quality and use, has also been expanded.

A medical staff committee is now giving advice and direction to clinicians in the concurrent course of patient care.

Additionally, a five-fold increase in consultation requests has outstripped the ability of a volunteer committee to respond. In order to fill the gap, our professional bioethicists have become much more involved in the clinical management of the cases, helping to identify surrogates, working with patients and families, and rounding with clinicians in the ICU and Skilled Nursing Facility. These activities have required adjustments to our consultation process as well as the development of a credentialing process for the clinical ethicist and a method for providing liability coverage.

Despite these changes, I have come to realize that the major benefit of clinical ethics consultation is still the same as I described in 1992—helping patients and clinicians define the goals and limits of medical intervention in a manner that is consistent with the values of the patient and the profession of medicine. We invite our colleague institutions to join us in the discovery as the role of “clinical ethics” evolves at your hospital.

William Andereck, MD, is an internist, codirector of the Program in Medicine and Human Values (PMHV) at CPMC, and a former editor of this journal.

consultation in United States Hospitals.

A national survey. American Journal of Bioethics 2007; 7: 13-25.

2 Andereck W. The development of a hospital ethics committee: Lessons from five years of case consultations.

Cambridge Quarterly of Healthcare Ethics 1991; 1:.41-50.

Upcoming SFMS Events September 13, 2010 6:00 to 7:30 Annual General Meeting Held in the Commodore Room of the Golden Gate Yacht Club.

For more information or to RSVP, contact Posit Lyon at pylon@sfms.org or (415) 561-0850, extension 260 September 23, 2010 6:00 to 7:30 SFMS-UCSF Student Mixer at the UCSF Campus Bringing the active membership and the future of the profession together for an informal evening of networking and fun. This annual event is one of the most popular SFMS produces.

Contact Therese Porter in the Membership Department for more information, or to RSVP. Call (415) 561-0850, extension 268 or email tporter@sfms.org November 18, 2010 5:00 to 7:30 Resident & Fellows Job Fair/Mixer At the Millberry Union, UCSF Campus A way for residents and fellows to meet representatives from hospitals, medical groups, health departments and other entities to facilitate finding job opportunities, to become acquainted with the Medical Society.

Contact Therese Porter in the Membership Department for more information, or to RSVP. Call (415) 561-0850, extension 268 or email tporter@sfms.org

References 1

Fox E, Myers S, Pearlman RA. Ethics

20 San Francisco Medicine July/August 2010

www.sfms.org

When’s the last time your insurance company paid you?

NORCAL Mutual does. We’ve declared more than $372 million in dividends to our policyholders since 1975. That includes $14 million in dividends paid during 2008 alone. When you become a NORCAL Mutual policyholder you own a piece of one of the nation’s top medical liability insurers.

Visit www.norcalmutual.com today, or call 800.652.1051.

Our passion protects your practice

The Evolution of Medical Ethics

Partnership for POLST Expanding and Improving Palliative Care in San Francisco

Jeffrey Newman, MD, MPH, and Steve Heilig, MPH

M

edical care of people nearing the end of their lives has long been identified as needing much improvement. It is a complicated arena that can have many clinical, social, ethical, emotional, and even financial complications.

There are growing, unmet needs because of our nation’s aging population and its attendant advanced chronic diseases. As only one indicator, the frequency of unwanted and expensive hospitalizations at the end of life demonstrates these unmet needs.

Over the past decade, identification of shortcomings related to end-of-life care has, thankfully, spurred many efforts to improve it, with varying success. One of the goals has been to provide more and better palliative care to patients—not just near the end of life, although that is the most heavily represented patient population—but to any patient in need of it.

San Francisco and the Bay Area have many innovative palliative care programs, some of which are described in this issue of the journal. But we think it safe to generalize that it is still true that at this point, palliative care consultation, hospice, and other home and residential care options are often underused.

Advanced directives facilitate identification of general end-of-life treatment preferences and surrogate decision makers.

However, most people do not have ADs. To overcome obstacles due to health literacy and language access, simplified ADs have been developed and translated into several languages. The Physicians’ Orders for LifeSustaining Treatment (POLST) form has been designed to facilitate dialogue on endof-life decisions and to operationalize them.

A recent study in Oregon, Wisconsin, and West Virginia demonstrated that POLST

utilization among nursing facility residents is associated with higher adherence to treatment preferences.1 However, as with other ADs, widespread use of POLST has been limited to date, for varying reasons.

A New Palliative Care Partnership

To improve the quality of palliative care in San Francisco and the Bay Area, we have initiated an organized approach to assess the availability and use of palliative care services, identify remaining unmet needs, and propose interventions to close the gaps.

Our partnership already includes the San Francisco Medical Society, the San Francisco Bay Area End-of-Life Coalition (SFEOL), and provider organizations including the San Francisco Department of Public Health, Sutter Health, Kaiser Permanente, UCSF, and Catholic Healthcare West. The Ethnic Health Institute and the Chinese American Coalition for End-of-Life Care are assisting us to address the strong cultural and language influences on end-of-life care. We welcome participation in the coalition by other palliative care providers, health departments, medical societies, medical groups, hospitals, residential and home care providers, health plans, foundations, and patient advocates.

Grant support for this initiative is provided by the Metta Fund.

While POLST facilitates the identification of patients in the last chapter of life, use by clinicians and patients is increasing slowly. Sponsored by the California Health Care Foundation, POLST coalitions have been initiated in a number of counties, including Alameda, San Mateo, and Santa Clara. The enthusiastic staff of the Coalition for Compassionate Care in California (www.

CoalitionCCC.org) has encouraged us to look at opportunities to develop a POLST coali-

22 San Francisco Medicine July/August 2010

tion in San Francisco.

Our current plan is to prioritize outreach and education to clinicians at hospitals, primary care sites, nursing homes, and long-term care facilities. We also seek opportunities to evaluate the impact of advanced directives and POLST on improved patient satisfaction with end-of-life care and on any reduction in unnecessary hospitalizations. We’ll report our progress on the SFMS (http://www.sfms.org) and SFEOL (http://sfeol.org/) websites. The POLST form is included in this issue for you to tear out and keep.

CME Resource

Jim Mittelberger, MD, MPH, who initiated the POLST Coalition in Alameda County through the Medical Society there and is now a major advocate at the state level, presented an overview on a CMA webinar on June 3. This invaluable presentation is available to CMA members at https://www2.gotomeeting.com/ register/856496443.

Jeff Newman, MD, MPH, is director of Sutter Health Institute for Research & Education, adjunct professor for the Institute for Health & Aging at UCSF, and a member of the SFMS Board of Directors. Steve Heilig, MPH, is with the SFMS and the Program in Medicine and Human Values at CPMC and is co-editor of the Cambridge Quarterly of Healthcare Ethics.

Reference 1

Hickman SE et al. A comparison of methods to communicate treatment preferences in nursing facilities: Traditional practices versus the Physicians’ Orders for Life-Sustaining Treatment Program. J Am Geriatric Soc. July 2010 (in press). www.sfms.org

The Evolution of Medical Ethics

“Just Do It” The Evolution of a Palliative Care Program

Jeffrey Beane, MD

P

atients who are frail and homebound have long been recognized as being at risk for receiving poorly coordinated, crisis oriented medical care. In 1995, to address this gap in care, Kaiser Permanente in San Francisco created the Community Based Medicine program, a group of geriatric physicians and nurse practitioners who provide in-place primary care to homebound patients, as well as managing patients who are residing in skilled nursing facilities.

In our work with these patients, we developed expertise in working with interdisciplinary teams to provide whole patient care, including careful advance care planning and attention to comfort and quality of life issues. Particularly in the post-acute SNF patients, we gained experience helping patients and families process what had just happened to them during their often crisis oriented, life changing hospitalizations. They came to the SNF with hopes for rehab, sometimes to face sooner rather than later a difficult conversation about likely outcomes and limited prognosis for functional recovery. In the hospital, nuts-and-bolts, short term solutions often won out over the more difficult, time consuming exploration of values and hopes, education about disease trajectory, and the long view. As the dust settled after acute hospitalization, we found ourselves addressing these issues.

We started to ask, “What would it be like to move this process upstream into the hospital, to frame their treatment plans more effectively in the range of possible outcomes? Can we prevent suffering by helping patients understand the natural history of their illness, work-

www.sfms.org www.sfms.org

ing to minimize surprises and crisisoriented decision making with timely advance-care planning? Can we do better at making sure that patients’ treatments match their goals and values?”

From the perspective of our KP leadership, these were timely questions.

In 2001, when we had the opportunity to participate in the California Hospital Initiative in Palliative Care Services (CHIPS program), we had the leadership’s enthusiastic support. The CHIPS program (a precursor of the current Palliative Care Leadership Center at UCSF) was a two-year education, mentoring, and peer-support program designed to assist people from hospitals throughout California in improving palliative care services.1 Working primarily with Steve Pantilat from UCSF, we learned a tremendous amount about developing a program, measuring outcomes, and making the business case necessary to assure ongoing operations.

So, in our “spare time,” Marilyn Williams, geriatric clinical nurse specialist; Sarah Zaglifa, MSW; and I started seeing patients in the hospital. “Just do it” was our motto, and we learned as we went.

In 2002, after a comprehensive review of the evidence supporting palliative care interventions, KP’s Care Management Institute put out a request for proposals for research projects examining outcomes of models of palliative care delivery. We partnered with colleagues from KP in our Colorado and Northwest regions, completing a randomized controlled trial of an interdisciplinary inpatient palliative care consultation compared to usual care. 2 The study funded our team for more than a year.

By the time the study was completed, we had developed enough local support to ensure our ongoing funding. Our study helped develop the evidence base that led KP to support investment in palliative care services across the continuum of care.

Currently at Kaiser Permanente San Francisco, our Community-Based Medicine group, consisting of four geriatric and palliative medicine physicians and five nurse practitioners, partner with nurses, social workers, and spiritual care providers to create a network that provides palliative care services and tracks patients as they move between sites of care. In the hospital, we work with hospital palliative care nurses and hospital social workers to staff the inpatient palliative care team. In SNF, we care for patients getting short-term, post-acute rehabilitation, who are all screened for appropriateness for a palliative care consultation and seen by the interdisciplinary team as appropriate for advance care planning; and those receiving long-term custodial care, all of whom have an advance-care plan developed with patients, families, and SNF staff.

Our Community Care Program provides ongoing home-based medical care with an emphasis on avoiding crisis-oriented medical decision making by supporting families and caregivers, doing careful advance-care planning, and managing timely transition to a more supportive care environment or to home hospice.

The physicians serve as hospice physicians, supporting the interdisciplinary team, doing home visits, and taking over the primary care of hospice patients as Continued on the following page . . .

July/August2010 San Francisco Medicine 23 2010 San Francisco Medicine 23 July/August

Continued from the previous page . . . appropriate. In the clinic, we are working with primary care physicians and nurse case managers, and also with the oncology and ESRD teams to develop appropriate supportive services for patients and families. All of this has been immeasurably enabled by the implementation of our electronic medical record, where all clinical documentation from every site is accessible to any clinician seeing a patient.

In July 2010, we became a teaching site for the UCSF Hospice and Palliative Medicine fellowship, contributing to the training of future physician leaders of our field, primarily in home-based hospice care.

The ethical issue we deal with most frequently on the inpatient Palliative Care Consult Service is that of care which is perceived as futile by the treating physicians. The consult request usually comes across as, “Please help us convince this unrealistic family to stop providing this futile care that does not make sense anymore.”

The most helpful advice I have heard in evaluating claims of futility are to examine the context by asking the questions, “Futile with respect to which goal?” and “Whose goal is that?”3 This brings to mind an early case on which our PC team consulted, a case that helped formulate our approach.

An elderly man, bedbound with advanced multiinfarct dementia, fed through a gastric tube, was receiving ICU care for his latest of several aspiration pneumonias, intubated on ventilatory support. Multiple attempts at weaning him failed. We met with the family, whom the ICU team perceived as unrealistic and angry. The family was initially wary about meeting with the palliative care team, but the early naming of the mistrust issue helped create some common ground for communication. We explored what it was like for them to feel that they constantly had to defend their treatment choices in the face of repeated questioning on the part of ICU clinicians.

Every new physician involved in the case would attempt to readdress code status

and goals of care. The family members accurately perceived this as disapproval of their treatment choices, since once we get the answer we want, we doctors stop asking the question. The family was not unrealistic about his prognosis, and they realized that he was going to die soon, but for them it was a matter of respect to support their father’s desire to have his life supported to the last possible heartbeat. Their treatment choices were not a result of a simple knowledge deficit, amenable to more education about the natural history of multiinfarct dementia, but rather a carefully considered choice grounded in their father’s values and beliefs. One of our primary interventions in the case (after making sure the patient was as free as possible from pain, dyspnea, and restlessness) was to put a notice on the front of the chart (back in the pre-EMR days when charts were in binders) asking that the topic of code status and intensity of support not be reopened with the family by crosscovering staff without coordinating with the primary ICU and PC teams.

When the patient died not long after, the family’s strong shared spiritual beliefs sustained them. They expressed appreciation for the excellent ICU care he had received.

This reinforced for us the importance of going into these difficult situations “values-neutral,” committed to a process of values clarification based in empathy, curiosity, and interest-based problem solving. To the extent that we go in with an agenda to persuade patients and families to adopt or abandon certain goals, our ability to be helpful is undermined.

There is a case to be made for limiting access to very low-benefit, expensive interventions on the basis of distributive justice, but this is discussion that happens in the sphere of politics and public policy, not at the bedside.

When I reflect on how doing this work has changed me, the biggest effect has been a sense of cultural humility.

Speaking as an individual and as a member of the culture of medicine, it is all too easy for me to think that my own beliefs

24 San Francisco Medicine July/August 2010

are somehow privileged as objective, while others’ beliefs are a product of their culture. Who is to say that my beliefs about illness, death, and appropriate medical treatments are any less culture bound than anyone else’s?

Jeffrey Beane, MD, practices geriatrics and hospice and palliative medicine at Kaiser Permanente, San Francisco and serves on the Board of Directors of SFMS.

References Pantilat SZ. Evaluating the California Hospital Initiative in Palliative Services.

Arch Intern Med. 2006; 166:227-230.

2 Gade G. Impact of an inpatient palliative care team: A randomized controlled trial. Journal of Palliative Medicine. 2008; 11,2:180–190.

1

Rubin SB. When Doctors Say No: The Battleground of Medical Futility. Indiana University Press. 1998.

3

www.sfms.org

The Evolution of Medical Ethics

The Unbefriended Adult Patient The San Francisco General Hospital Approach

Eric D. Isaacs, MD, and Robert V. Brody, MD

C

lint Johnson’s friends have not been back to the hospital since the first two days of his admission. A fiercely independent homeless man who has lived in and around Golden Gate Park for fifteen years, Clint was always willing to help his friends but rejected any help from others. His friends couldn’t bear to see him in his current state. Admitted six weeks ago due to a devastating stroke, Clint was unable to communicate and needed around-the-clock skilled nursing assistance.

The team was at the crossroads of a disposition. Yet there were no family, friends, or documented advanced directive. Who should make this decision? At San Francisco General Hospital, the attending physician makes the final decision.

The issue of care for the unbefriended adult has recently received increasing attention from the ethics and legal communities. Caring for patients who cannot make decisions for themselves and lack a surrogate decision maker is not an uncommon occurrence in hospitals, and it is seen frequently in the indigent community served

by San Francisco General Hospital (SFGH).

These are the patients who may have led a solitary existence, perhaps their family and closest friends have died, and now there is no one to speak for them when making medical decisions. There is little literature documenting care and decision making for these patients, but a review of the small literature base shows that incapacitated patients who lack a surrogate decision maker or advanced directive account for 5 to 10 percent of ICU deaths. Even among patients with identified surrogates, physicians had trouble contacting the surrogate in approximately 20 percent of the cases, and nearly three-fourths of physicians sur-

www.sfms.org www.sfms.org

veyed had made a major medical decision for a patient who lacked decision-making capacities in the past month.

In California, the official legal statute mandates that all patients in this situation should be assessed by the probate court both to determine their decision-making capacities and to authorize recommended medical care in the case that the patient is deemed incapable. Individual counties may implement this statute through their probate courts and health departments in a variety of ways, depending on the number of hospitals, size of the county, political environment, and leadership decisions.

This process may work for many elective procedures or chronic care decisions, but it is not practical in the critical care environment or with many end-of-life decisions.

Interestingly, little agreement exists between specialty societies and the “House of Medicine” with regard to how medical treatment should be conducted with regard to the unbefriended adult.

For example, the Ethics Committee of the American Geriatrics Society states that the group of individuals caring for the patient, usually a multidisciplinary health care team, should determine appropriate treatment goals. In contrast, the AMA Ethics committee put forth a policy in 2004 stating that an ethics committee or judicial review should be used in all cases, and the policy of the American College of Physicians is that all cases should be subject to judicial review. Documentation regarding hospital policy is limited, but information from selected hospitals around the country reflects a similar variation in the presence and character of policy to specifically address how decisions for such patients should be made.

It makes sense that decision making for these patients may be less than formulaic. While the SFGH Ethics Committee encourages consultation at any time, the hospital has implemented a system that allows the attending physician to make decisions for the unbefriended adult patient. Such a system causes angst for the greater ethics community. Many feel that “doctors should not be making these decisions.” But the question remains whether other systems of mandatory review would result in a different decision, or a “better” decision. Bringing in ethics committees, independent committees, or judicial review creates monetary burdens, time burdens, potentially prolonged suffering, and no guarantee that decisions would be different or better. To put the question in the context ethicists create, would another system of care for the unbefriended adult create more benefit than burden? The burdens are real, but the benefits are really only theoretical.

While many attending physicians take advantage of the Ethics Committee consultation service, some do not. Why do we think this works? Ironically, the typical hierarchy experienced at many other hospitals does not influence the working environment as deeply at this teaching hospital. SFGH endorses a culture in which anybody involved in the care of the patient can refer a case to the Ethics Committee, not just the attending physician. In addition, nurses and social workers, in fact any staff member, are empowered to exercise this right to call for an Ethics Committee consult when they feel more information is needed, or they perceive the wrong decision is being made. Ethicists and others Continued on the following page . . .

July/August2010 San Francisco Medicine 25 2010 San Francisco Medicine 25 July/August

Continued from the previous page . . . would argue that ethics committees are consulted so there is a “moral” community to assist with decision making. The environment of teamwork, structure of the care team at SFGH, and the softening of traditional hierarchy is allowing this to happen for individual patients in real time.

There is no legal basis for anyone making a decision for the unbefriended patient except for the judge or a conservator appointed by the judge, whether it is a layperson committee, ethics committee, or attending physician. Other entities, like Santa Clara County, working with the bar association and medical associations, have a system in place allowing independent citizens to come in and act as medical decision makers for these patients, with the idea that such a system is better than allowing the attending physician to make decisions. The concern is that leaving the decision to an attending physician, who may be operating in the vacuum of a passive and unempowered staff, would lead to an action based on a subjective application of the physician’s ideas and ideals without taking into account an individual patient’s preferences when they differ from our own. The argument is that an “independent” committee would be able to apply institutional values, where appropriate, in a consistent manner through a systematic process to discover an individual patient’s preferences for care in a specific situation. One might use the analogy of our society’s negative view of a provider caring for a family member, suggesting it is more important to take an unbiased view of a case, considering a wider differential diagnosis and asking tougher questions unhindered by an emotional attachment.

Certainly, the physician who has invested time, resources, energy, and worry on a patient’s behalf may have difficulty letting go, and this difficulty may stand in the way of timely end-of-life decisions.

However, we count on the intimate knowledge and emotional investment of family and surrogate decision makers to make these difficult decisions. These decisions require the same consideration and attachment from physicians. We are up to the task. It seems contradictory that

an ethics subcommittee or a special group that has no particular knowledge of this patient’s values, and which adds a layer of bureaucracy and extra time, would be preferable when there is no probability that they would make a different decision or the “right” decision.

It is interesting to remember that the attending physician is trusted to make decisions in the best interest of the patient every day, some without our overt consideration. We focus on providing the patient autonomy to make a decision between the options presented to the patient by their provider. However, no one questions the decisions by providers not to offer treatments to patients they feel will not result in any benefit.

It is perceived by some that there is a problem for the attending physician in making this decision for the patient, yet there is no documentation that a problem exists. Anecdotally, there are stories from community hospitals where the attending physician makes a decision for the unbefriended patient based on his own values, not that of the patient. There is always that possibility at San Francisco General Hospital, but the culture of this hospital makes that less likely. The system at SFGH seems to be working; exhaustive searches for surrogates and corroborating information are taking place without any outside committee influence. There is no sense that the wrong decisions are being made. But there is angst in the ethics community that such an unstructured and subjective process does not meet necessary standards. There are some attending physicians who say they do not want to make these decisions alone, and, in fact, if the attending requests (or if anybody requests), the Ethics Committee to get involved, we do. In fact, this is a large part of what we do. In the end, the Ethics Committee acts as any other consultant does; we provide information and point out nuances of individual cases, while leaving the final care decision up to the attending physician primarily responsible for the patient.

Eric D. Isaacs, MD, is an attending physician in the SFGH emergency department and professor of emergency medicine, University of California, San Francisco. He is

26 San Francisco Medicine July/August 2010

cochair of the SFGH Ethics Committee.

Robert V. Brody, MD, is chief of the SFGH Pain Consultation Clinic and professor of medicine and family and community medicine, University of California, San Francisco. He is a member and prior chair of the SFGH Ethics Committee.

Upcoming Training POLST: It Starts with a Conversation The California POLST Education Program is a two-day train-thetrainer course using the standardized California POLST training curriculum. It includes a series of educational modules and interactive exercises designed to provide an understanding of the POLST Paradigm, as well as how to complete the form to reflect a patient’s wishes. The training also provides opportunities for attendees to develop skills for facilitating meaningful conversations with patients and their families about POLST and goals of care, and ideas for implementing POLST within communities and training other individuals.

Who Should Attend

The education program is designed for: Organizations and communities/coalitions initiating a POLST program; Individuals/coalitions who will be educating professional healthcare staff and/or the community about POLST, including: physicians, nursing, social service, chaplains and other interested staff from skilled nursing and acute care hospitals, emergency medical services, home health and hospice October 11-12, 2010 UCSF Mission Bay Conference Center Contact Coalition for Compassionate Care of California at (916) 489-2222 or info@CoalitionCCC.org. www.sfms.org

The Evolution of Medical Ethics

Clinical Ethics Palliation, Consultation, and Life Lessons

Andrew Lasher, MD

M

r. Gordon Farrell 1 was a seventy-five-year-old man diagnosed with metastatic, hormone-refractory prostate cancer.

Under Mr. Farrell’s considerable duress, his oncologist had conceded that the disease was ultimately terminal, most likely within a year or so. Mr. Farrell quickly rejected a trial of chemotherapy, based on his own research and strong opinion. He modified his will and estate to exploit certain tax advantages, spent a final weekend with his daughter and two grandchildren, and enjoyed a final and celebratory meal at Restaurant Gary Danko. He phoned his nephrologist—a man with whom he had forged a lasting bond over two decades’ treatment for a largely benign kidney ailment—to arrange direct admission to the hospital for initiation of a morphine drip.

His physician initiated the morphine drip, quickly escalating the dose to eight milligrams per hour. Predictably, Mr. Farrell became obtunded. Just as predictably, the bedside RN, case manager, and oncology social worker became panicked. Having watched Mr. Farrell stroll exuberantly into the ward not only on his own power but also without complaints of pain, they correctly surmised that the well-meaning nephrologist was jeopardizing his medical license, to say nothing of his personal freedom. The ethics hotline lit up like the American Idol switchboard.

I had only recently begun working at California Pacific Medical Center, but in my few months of tenure, I had developed a reputation as someone comfortable with both morphine and dying. Such comfort still places one in a distinct minority—in this case, allied with the longtime oncology nurse specialist. Thrilled to see

www.sfms.org

me, she declared forcefully, “You’ve got to go see Mr. Farrell, and keep his idiot doctor from going to jail.” I appraised the situation, called Mr. Farrell’s physician, negotiated for the consult, and provided some education regarding prognosis in metastatic prostate cancer as well as the principle of double effect. I titrated down the morphine, allowing Mr. Farrell to wake up and explain his thoughts.

Yes, Mr. Farrell had always been a local titan of industry, always in control of his own life and destiny. He held no torch for the medical establishment—for waiting rooms, insurance headaches, and the indignity of revealing hospital gowns. He also had no interest in a life of chronic debility, having been a master swimmer into his late sixties and having hiked Mount Kilimanjaro only three years prior. Yet the real issue that had prompted his hope for an expedited death was the vivid memory of his older brother’s painful death from cancer that winter. He had died of lung cancer metastasized to the bones, and he had received neither adequate warning about the side effects of chemotherapy nor appropriate analgesia when his end was at hand. For Mr. Farrell, the experience had been harrowing and formative.

Beyond helping his well-meaning physician avoid a felony rap sheet, my role in this case was to listen to a patient’s legitimate concerns, assuage his fears, and provide him as much control over his disease and treatment as he could hope to have. We discussed chemotherapy and how to treat its side effects. We discussed strategies for pain control, pharmacologic and otherwise. I explained the role that hospice might play for him—if not now then later in his course of illness. He

walked out of the hospital three days after he had checked in, sporting a completely different perspective on his future.

Ultimately, he opted for a trial of taxotere chemotherapy and responded reasonably well.2 We managed his pain with NSAIDs and minimal opiates, only escalating his dosage in the final two weeks of his life. He died comfortably at home with nursing assistance from home hospice. An ethical and legal issue had connected me with Mr. Farrell, but our relationship was purely medical. I understood the nature of his illness, took stock of his personality, assessed his concerns and goals, and provided him compassionate medical care. Subtracting the collective panic on the oncology ward, it was pretty much a run-of-the-mill palliative care encounter.

Death and dying provide fallow ground for the field of clinical ethics.

Ethical questions often intersect with the practice of palliative medicine; it is the rare day that one of my consults does not feature, at its core, an ethical issue. Who is a patient’s surrogate decision maker?

What constitutes informed consent or informed refusal? How will patients and families make decisions regarding nutrition and hydration at the end of life? My job is to manage pain and symptoms, as well as to provide education regarding chronic and terminal illness. I could not do my job effectively without having both a solid foundation in clinical ethics as well as a healthy respect for my own limitations.

For instance, I once became involved in a difficult case involving an unfortunate elderly Chinese woman, Mrs. Xiu, in the final stages of vascular dementia. She Continued on following page . . .

July/August 2010 San Francisco Medicine 27

Continued from previous page . . . had been enrolled in a brilliant community care program, and her primary care physician had expertly elicited her wishes for extreme care. In better days, she had made clear that she wished to be allowed a natural death. She signed paperwork to that effect, which had accompanied her to the emergency room prior to her intubation and the initiation of vasopressors after a severe hemorrhagic stroke. Her grieving (and slightly narcissistic) son had overruled her document in the presence of the ER staff, claiming that the patient herself had recently expressed a strong desire to live at any cost.

This is undoubtedly an ethical issue, yet I was the one called by the intensive care team to approach Mrs. Xiu’s family. The ICU team recognized the ethical question at hand but hoped that the palliative medicine approach could bridge the divide between this woman’s stated wishes and her son’s emotional demands.

I arranged a family meeting that included the son, his wife, a grandson, a Cantonese interpreter, and a social worker.

It was a poignant and moving affair, but in practical terms I got nowhere. I learned about her struggles during the Cultural Revolution in China, her difficult passage to the United States, her status as a matriarch and protector of her flock.

I better understood her story, and her son’s interpretation of it. Yet he remained intractable and adamantine—every day above ground was a good day, and our goal should be to prolong her life with any means necessary. Her suffering, were it occurring, did not change his opinion.

No explanation of her dismal prognosis would alter his stance.

I had hoped to provide him with the education and emotional support necessary to honor his mother’s wishes.

Unable to do so, I requested a formal ethics consultation. I knew very well that our hospital should respect her advance directive, and that staff were well within the bounds of medical ethics in doing so.

Still, the formal imprimatur of the ethics team, along with its careful process and consideration, provides tremendous comfort to physicians in difficult times.

In this situation, after reviewing the case and speaking with Mrs. Xiu’s son, ethics consultation confirmed what we had all felt from the beginning. With their recommendation, I informed her son that we would not escalate the intensity of care beyond its current level, and that we would work to determine the appropriate time to remove her endotracheal tube. I did my best to maintain good relations with him so that I could continue to provide comfort-focused care to the patient without upsetting the person who loved her most. She survived the intensive care unit only to suffer a seizure on the medical floor. This dramatic event helped her son shift his focus from prolonging life to preserving dignity. I helped treat the seizure and prevent another from occurring. She died in the hospital on “comfort care,” her son at her bedside.

Palliative medicine encompasses so much of clinical ethics that the two services often cross-pollinate. As many times as I have requested ethics consultation, the ethics consultants recommend palliative care consultations twice as often. When caring for the chronically and terminally ill, questions invariably arise regarding informed consent, indications for medical intervention, advance directives, cultural beliefs, quality of life, and many other vexing concepts. In California Pacific Medical Center, I’m fortunate to work at a hospital that not only sees the value of both palliative medicine and clinical ethics but also understands the difference. In some ways, our palliative medicine team is the “boots on the ground.” We work to help patients, families, and hospital staff understand the nature of suffering and dying. We develop individual plans to suit the needs and values both of those we care for and those who consult us. Absent a reasonable understanding of clinical ethics, we simply could not perform our jobs.

Dr. Andrew Lasher is the director of palliative medicine and vice chair of internal medicine at California Pacific Medical Center in San Francisco.

References Names and basic stories have been altered to protect anonymity and comply 1

28 San Francisco Medicine July/August 2010

with privacy laws.

2 Taxotere chemotherapy for metastatic, nonhormone responsive prostate cancer has been shown to extend survival in select patients on the order of a few months, with a small number of patients attaining durable remissions and prolonged survivals.

CME Program on Marketing of Pharmaceuticals www.cme.ucsf.edu/cme/CourseDetail. aspx?coursenumber=MED11006 Marketing of Medicines Online Fees: $25 2.5 AMA PRA Category 1 Credit(s) The pharmaceutical industry spent about $29 billion on marketing of drugs in 2005. Methods include direct-toconsumer drug advertising, advertising to physicians, and detailing, as well as less obvious strategies, such as the use of opinion leaders and sponsorship of education, scientific research, publications, and professional meetings. All of these marketing strategies influence prescribing. Interactions with the pharmaceutical industry increase the likelihood of prescribing irrationally or making formulary requests for the company’s product. In addition, health professionals at all levels of training tend to believe that they are not influenced by drug industry marketing.

Thus, there is a pressing need for health care practitioners to learn about the tactics of the pharmaceutical industry and their potential effects.

This course provides an unsurpassed opportunity to learn about the marketing practices of the pharmaceutical industry by reviewing evidence on the content and effects of marketing.

This work was made possible by a grant from the state Attorney General Consumer and Prescriber Education Grant Program, which is funded by the multi state settlement of consumer fraud claims regarding the marketing of the prescription drug Neurontin. www.sfms.org

The Evolution of Medical Ethics

Too Many Preventable Deaths Putting Organ Donors First

Lisa Nyberg, MD, and Steve Heilig, MPH

T

he year 2010 marks the fifty-sixth anniversary of the advent of transplantation of human organs. Organ transplants are one of most striking modern medical miracles. Only a generation ago, using a person’s heart, liver, kidney, or other organ to save or at least improve another’s life was a science-fiction dream; once transplants began to occur, they were front-page news worldwide. In a relatively short period of time, transplantation has become common, if not routine.

Such surgeries are a wonder of our time, supported by the vast majority of people as a modern boon to humanity.

The full promise of these breakthroughs has not been realized, however, no matter how fast clinical advances take place. For although about 56 percent of Americans state that they wish to donate their own organs upon their death, only about a third take the procedural steps needed to ensure that this occurs.

Demand for organs, however, keeps rising. Thus a chronic and tragic shortage of organs relative to need results in much unnecessary suffering and death. More than 100,000 Americans are on waiting lists for organs; more than 6,500 per year die while waiting—almost 18 such deaths per day. The waiting lists grow by an average of 19 percent annually. The problem is getting worse rather than better, with pessimistic projections.

However, there is increasing advocacy for changes that might increase the supply of organs. The most sweeping such policy is that of “presumed consent,” which reverses the default for donation to one where an individual must specify that they do not want to donate their organs.

This has become the policy in at least five www.sfms.org

European nations, with marked increase in usable organs there. A similar policy has been proposed in New York State.

Under the proposed legislation, an applicant for a driver’s license is automatically enrolled as an organ donor unless he or she opts out of the program. The American Medical Association has formally noted that a presumed consent system is not unethical as long as there is a clear opt-out provision for anyone who does not want to donate their organs.

Another recent proposal is California Senate Bill 1395, which would establish a registry of individuals who identify themselves as potential organ/tissue donors after death and the establishment of an altruistic living donor registry for persons who would like to identify themselves as potential kidney donors during their lifetime. The bill would also require the department of motor vehicles to verbally ask each driver’s license/I.D. card applicant if he or she wishes to enroll in the registry.

Presumed consent still offers the greatest promise for improvement in organ donation rates. However, it may be unlikely that this sweeping change of the default for donation will be enacted in the U.S. any time soon. There may, however, be a more moderate option that could also significantly increase organ donation without raising many of the objections to presumed consent.

We believe that a “donor-first/confirmed consent” incentivized system can be implemented with minimized logistical and ethical problems. This system would offer priority to those individuals who have previously committed to organ and tissue donation at the time of their own death. After development and adop-

tion of a suitable policy and program, a widespread public education effort would be needed to inform people about their newly heightened interests in donating their organs. Ideally, the program could effectively nullify itself if many new donors respond to the new incentive. Only a fraction of those who have not yet offered organs but who say they would intend to would need to so respond in order to fulfill current demands for organs. Thus, the waiting lists could diminish so much as to make the “triaging” inherent in current practice, and this proposed policy, moot. Although this is a lofty goal, it could be attained with a full commitment to implementation of and education about this policy. Indeed, a similar model was implemented in Israel in January 2010 (Israel Parliament clause 9[B]4). The effect of the new policy on organ donation rates will be monitored and a public report will be submitted two years after its implementation.

The “donor-first/confirmed consent” incentivized program will encourage discussion of choices and attitudes regarding organ and tissue donation and thus could potentially save thousands of lives. Even if there are problems with the policy, they are unlikely to be as tragic as the existing number of preventable cases of suffering and death.

Lisa Nyberg is a gastroenterologist and transplant specialist/researcher at Kaiser Permanente in San Diego. Steve Heilig is on the staff of the San Francisco Medical Society and is coeditor of the Cambridge Quarterly of Healthcare Ethics.

July/August 2010 San Francisco Medicine 29

The Evolution of Medical Ethics

From the Mouths of Doctors A Sampling of Ethical Dilemmas from SFMS Members

T

his month San Francisco Medicine editors asked members of the San Francico Medical Society what most common ethical issues they face in their practices. What follows are responses from a diverse range of local physicians.

In a city where mental health needs are chronically underfunded and hospitals have closed inpatient psych floors; in a city that has had to have loud public protests to keep hospitals open in poor neighborhoods; in a city where PPOs have regularly diverted insured patients away from those same hospitals in poor neighborhoods, further threatening the survival of those hospitals; in such a city as this, I have no difficulty whatever in seeing glaring problems in medical ethics before the first patient of the day has arrived.

I find it unsettling that we physicians can look at a system unquestionably broken—and unethical—and continue to ignore that fact. Yes, we have work to do and we can’t get distracted, but patients are suffering. So intently do we study the texture of the bark that we have lost sight of the forest.

—Michael Treece, MD Pediatrics, St. Luke’s Hospital I am the chair of the ethics committee at UCSF. Our most common dilemma is whether withdrawal of life-sustaining treatment can occur against the wishes of a patient’s family in cases of severe illness.

We tend to encourage families and physicians to find common ground, often with the help of culturally sensitive resources including clergy and social work.

In situations in which, after exhaustive

efforts, there is still disagreement, physicians may consider withdrawal of care after offering families a second medical opinion, a transfer to another institution, and a meeting with the ethics committee.

—S. Andrew Josephson, MD UCSF Department of Neurology The most common ethical problem is feeling like I need to recommend treatments that patients cannot afford, or that insurance will not pay for. Sometimes I am in a position in which I need to offer laser or surgical options earlier than I would otherwise, because they are more completely covered by insurance, rather than pharmaceutical options, which are unaffordable for the patient but which I would otherwise find preferable. Free samples and pharmaceutical discounts or patient-assistance programs are helpful, but they do not fully bridge the gap.

—A San Francisco ophthalmologist I continue to get questions about aid in dying from patients with terminal conditions for whom I have provided care for ten years or more. It is difficult for me as a physician to close that option to my patients. Some have chosen gruesome options, such as hanging or self-inflicted firearm wounds, leaving family members and/or friends to find them and deal with the emotional trauma and memories. I feel that I have been forced by the State and the CMA to abandon my patients.

—Stephen E. Follansbee, MD Director, HIV Services and Travel Medicine, Kaiser Permanente In occupational health, one of our chief ethical (and practical) quandaries

30 San Francisco Medicine July/August 2010

is the challenge of dueling masters: Who is in charge? The patient? The company?

The payer? The doctor? Patients may want to return to work too soon—often for financial reasons—or not at all—often because the work or working conditions (including bullying supervisors) are miserable. Sometimes pain does not subside the way we expect it to—and that may be related to troubles not at all related work, such as sexual abuse in childhood.

From their standpoint, companies may not want to acknowledge that a patient could have been injured at work, and sometimes companies want workers to return before they are healed. Companies may also want information to which they are not entitled, such as laboratory or other results that are not related to work. (“We paid for them; we want them.”)

To compound the situation, patients, employers, and payers may also have unreasonable demands or expectations and occasionally are not entirely credible.

In my opinion, the physician is in the best position when she or he decides and does what is medically correct. That makes at least one half of the people angry at us all the time.

—Linda Hawes Clever, MD, MACP President, RENEW www.renewnow.org As a medical student, I was on rotation with a plastic surgeon who agreed to perform a second breast augmentation on a woman who was having difficulty dealing with her age and was using it as a way to save her dysfunctional marriage.

Yet he agreed to do it. I was extremely uncomfortable with the decision and felt Continued page 32 . . . www.sfms.org

Dr. David Young, MD reconstructive plastic surgeon

The san Fr ancisco Wound care and reconsTrucTive surgery cenTer aT s T. M a r y ’ s More than 152 years ago, eight Sisters of Mercy sailed to San Francisco with a few medical supplies and a plan: To cure suffering.

Today, our plastic and reconstructive surgeons still use the same tools our founders used: The most advanced tools available in modern medicine. Their hands.

pressure ulcers • venous stasis & diabetic ulcers • radiation wounds • abdominal hernia & ostomy wounds • varicose veins • lymphedema • osteomyelitis • neuropathic pain and ulcers • post surgical wounds •

The MosT sophisTicaTed surgery.

For more inFormaTion or To schedule an appoinTmenT, call 415-750-5535.

From the Mouths of Doctors Continued from page 30 . . . that marital/individual therapy should be tried first. But as a med student, I felt I was powerless to say anything.

—George Fouras, MD Child/Adolescent Psychiatry I don’t know if it is the most difficult, but it is the most common: A longtime patient who wants certain things purged (or not stated) from the medical records so he or she can get health or life insurance.

I am very sympathetic to this because the insurance underwriters will deny or charge exorbitant fees for prior medical visits that are of no consequence to the health of the patient. I feel my obligation is to the patient, but I am also uncomfortable picking and choosing what I send to insurers when they request medical records.

Other ethical issues I face are when I treat family members and I know private facts about one that affect the other. For instance, a cheating husband or a drugseeking adult child. It isn’t common, but keeping those secrets is difficult for me.

—Toni Brayer, MD, FACP Internal Medicine

2005 Winner of the SFMS Perlman Award Wins National Award

In 2005 Bay Area reporter Suzanne Bohan was honored by the SFMS with the David Perlman Award for Excellence in Journalism for a two-part series she wrote called “Code Blue.” It addressed the root causes behind the crisis in overcrowding at the nation’s emergency departments. It also profiled how one hospital dramatically reduced patient wait times and ambulance diversions through an innovate new program.

This year Bohan went on to win the 2010 White House Correspondents’ Association’s Edgar A. Poe award, for which print and broadcast media both compete and which honors coverage of national significance.

President Obama was present during the award ceremony. The award was for a four-part series Bohan co-wrote with Sandy Kleffman called “Shortened Lives: Where You Live Matters.” It explored the reasons behind the 16-year difference in life expectancy between two East Bay neighborhoods just 12 miles a apart, with an emphasis on the “social determinants of health.”

The Poe judges’ commented: “Bohan and Kleffman stand conventional wisdom on its head, providing powerful evidence that variations in disease rates and life expectancies between neighborhoods in Alameda County, Calif., are not—as widely assumed—the result of poor people making bad choices about diet and exercise. Rather the discrepancies stem from multiple forces that deny those living in poor communities access to the basic resources necessary to engage in a healthy lifestyle, however great their desire to do so.”

The series ran in the Contra Costa Times and the Oakland Tribune, two newspapers that are part of the Bay Area News Group. You may read the article online at www.contracostatimes.com/life-expectancy.

Above Photo: Kevin Keane, executive editor of the Bay Area News Group, is on the far left. Suzanne Bohan is between President Obama and her husband Glenn Thompson, and Sandy Kleffman, co-writer on the series, is on the far right.

33 San Francisco Medicine July/August 32 San Francisco Medicine July/August 2010

www.sfms.org

Hospital News CPMC

Michael Rokeach, MD

We are pleased to announce the opening of

Saint Francis

Kaiser

Patricia Galamba, MD

Robert Mithun, MD

Saint Francis’ Bioethics Committee is

The limits of medicine are myriad and mul-

CPMC’s Kalmanovitz Child Development Center

comprised of physicians, nurses, social workers,

tifaceted. We often think of them as treacherous

services for children. For information or to sched-

Trustees. Medical Ethics is a subject that is near

the subtle—“I’d like a prescription for stimu-

in San Rafael. The Center offers speech/language therapy, occupational therapy, and psychology

ule an appointment, please call (415) 600-6200.

The San Francisco Business Times has

named three of our leaders to its list of “Most

Influential Women in Bay Area Business” for

2010: Judy Li, PhD, MBA, regional vice president of Health System Innovation and Community

Benefit; Dionne Miller, chief administrative officer, St. Luke’s Campus and vice president of

Clinical Services; and Toni Brayer, MD, chief

medical officer for Sutter West Bay Region. The

list features “women leaders who are making a difference in their companies and their commu-

nities” and “who have moved through the ranks into leadership positions.”

San Francisco Business and Professional

Women, Inc., recently honored Community

Benefits Program Manager Rev. Carolyn Dyson

for her tireless work empowering underserved women in the community. Rev. Dyson received the Health and Community Empowerment

Award for her work building bridges and coalitions in the community and for managing CPMC’s African American Breast Health and Sister to

Sister breast health programs. These programs

have offered free breast cancer screenings to more than 1,000 uninsured women as well as

no-cost treatment and follow-up services to 11

women who were diagnosed with breast cancer.

Congratulations to all the physicians, nurs-

es, and support staff at CPMC who volunteer for Operation Access, providing free surgical services

to people who lack health insurance. In 2009, CPMC staff provided 103 surgeries for Operation Access patients. A survey of those patients found

that 100 percent of them reported “excellent” or “very good” surgical results, improved quality

of life, improved health, and relief of pain and symptoms.

www.sfms.org

clergy, legal advisors, hospital administrators,

and a representative from the hospital’s Board of and dear to my heart, as I have served as a past chair of this committee for more than eight years.

Our current chair is Neurologist James Soong,

MD. The goal of the Bioethics committee is to

promote the rights of patients, promote shared decision-making between patients (or their surrogates) and the clinician, and promote fair policies and procedures that maximize the likelihood

of achieving good patient-centered outcomes and enhance the ethical tenor of health care professionals and the institution. The committee

participates in the development of guidelines for

consideration of cases having bioethical implica-

tions, including guidelines for advance directives, patient rights, and confidentiality.

Those of us who have been in medicine for a

while have probably benefited from the expertise of a bioethics consultation. It isn’t unusual to have a patient or a patient’s family disagree about what

treatment is best. The more serious the conflict

or possible consequences, the greater the need

for a consultation. I am sure many of our readers have had to address the starting or stopping of life-support measures. We have seen instances

where the patient has refused treatment or the family doesn’t agree with the Do-Not-Resuscitate

wishes. These are excellent examples of when to request a bioethics consultation. Here at Saint

Francis, anyone involved in an ethical issue arising out of patient care can ask for a consultation.

All discussions are confidential, and there need be no fear of intimidation or reprisal.

seas to be navigated at the end of life. But the limits we face daily are far more varied, from

lants to help me concentrate during exams” to

the absurd—“Why can’t my father have a brain transplant to get rid of the cancer?”

What are the limits of medicine when the

line between “normal” and “disease” becomes fuzzy, or when a treatment plan is ignored or

defied by a patient? We define even death as a

disease and wage war on it, often insisting that patients enlist in this defense—or else we feel helpless to manage their fears. As physicians

facing life-and-death issues on a regular basis,

we need to define boundaries and look to our colleagues for support, guidance, and a clear path.

The Kaiser Permanente San Francisco

Hospital Ethics Committee provides a forum, not just for consultations at the end of life but

for reflection and discussion of ethical concerns and dilemmas through the breadth of medical practice. Sometimes the discussion is an informal

hallway question or a teaching moment on the ward with a resident. Sometimes an issue is addressed by a speaker at Grand Rounds. However,

a single ethics committee can become isolated and parochial. To counter this, we have a regional Department of Medical Ethics. Four times a year, the chairs of the Northern California Kaiser Per-

manente Ethics Committees meet together to discuss cases, educate themselves about ethical issues, and review policies and programs. The

group organizes an annual Ethics Symposium,

which is open to the community and serves as a resource that is both supportive and accessible.

The regional ethics chief also reaches

out to internal, external, and national Kaiser Permanente constituents and medical and accreditation organizations, thus providing a voice for ethical practice and reflection at all levels of our institutions.

July/August 2010 San Francisco Medicine 33

Hospital News St. Mary’s

UCSF

Richard Podolin, MD

tal interventions are really maternal-fetal inter-

Elena Gates, MD

ventions, and the most important consideration

is the safety of the mother and her reproductive potential,” Farmer said.

Although many fetal problems can be di-

agnosed before birth using genetic testing and For more than sixty years, medicine has deliv-

advises families about all available options when

the world’s first surgery on a fetus that was still

treatment at birth, intervention before birth, and,

rison, MD, UCSF professor emeritus of surgery,

patient in the last moment, when everyone else

in the mother’s womb and established UCSF Chil-

brilliant, idiosyncratic physician who rescues the claimed the situation was futile, has become a

staple of television drama. So we can understand

when family members request heroic measures we believe to be of little benefit. We tell families that we are not withdrawing care but only suggesting a

change in goal from cure to comfort. Then, if a family member is recalcitrant, an ethics consultation might

be requested. Each earthly life follows an arc, and

it has been the victory of modern medicine to bend that curve, often delaying its termination for years

or even decades. Yet an end is certain, and only a little thought is required to realize than in a finite

world, no other outcome would be preferable. Our patients want more than a little more time. They

want a trusted professional who will be with them

pediatrics, and obstetrics/gynecology, performed dren’s Hospital as the birthplace of fetal surgery.

Today, the multidisciplinary team of physicians,

nurses, and social workers at UCSF’s Fetal Treat-

ment Center has more experience investigating and applying open and endoscopic fetal intervention techniques to diagnose and treat serious birth defects than any other institution.

Determining whether to operate on a fetus

in utero is a serious medical and ethical decision that involves thorough patient evaluation,

counseling, and weighing of the potential risks versus benefits, according to Diana Farmer, MD, surgeon in chief of UCSF Children’s Hospital. “Fe-

A

primary care physician. But with recent changes in health care delivery, precisely when the patient is

and real—the patient may be in the hands of relative strangers.

cluding termination of the pregnancy, aggressive where appropriate, comfort and palliative care.

Compass Care, UCSF’s pediatric palliative

care program, provides comfort-based care for all families with children facing life-limiting conditions. The program emphasizes physical,

emotional, social, and spiritual care, with a focus

on quality of life and relief of suffering. “Managing the care of a child or unborn fetus with a

life-threatening condition is one of the greatest challenges families and medical professionals

face,” said Robin Kramer, codirector of Compass

Care. “We strive to honor each family’s wishes and come together as a team to help children live as well as they can, for as long as they can.”

INC.

caring for them. That was the traditional role of the

discussed in abstract, suddenly become pressing

a fetus is diagnosed with a severe birth defect, in-

Tracy Zweig Associates

along the path, helping them, advising them, and

most ill—when difficult choices, even if previously

prenatal intervention. The UCSF medical team

More than two decades ago, Michael Har-

ered a stream of nearly miraculous advancements,

taming diseases previously thought hopeless. The

imaging techniques, only a few may benefit from

REGISTRY

&

PLACEMENT

FIRM

Physicians

Nurse Practitioners ~ Physician Assistants

Perhaps this is the time to abandon the

anachronistic fiction of the heroic, independent

physician. We need to let our patients know that in

the complex and sophisticated medicine of today, health care is provided by an interconnected system

of physicians, nurses, technicians, home care pro-

viders, and myriad others. Then the system must earn their trust, by demonstrating its commitment

Locum Tenens ~ Permanent Placement

care physician must remain central, providing care

V oi c e : 8 0 0 - 9 1 9 - 9 1 4 1 o r 8 0 5 - 6 4 1 - 9 1 4 1 FA X : 8 0 5 - 6 4 1 - 9 1 4 3

surrounded by allies who are extending their lives

tzweig@tracyzweig.com w w w. t r a c y z w e i g . c o m

to clinical excellence, patient safety, and, most im-

portant, compassionate care. And still the primary and coordination, wisdom, and ethical guidance.

Patients entering our system should feel they are when possible and, when that is not possible, helping them bring their lives to a dignified completion.

34 San Francisco Medicine July/August 2010

www.sfms.org

The San Francisco Medical Society and CMA are pleased to announce a new 10-year and 20-year Term Life program for members. You now have a choice of locking in your premium rate for the first 10 or 20 years of your policy,* enabling you to achieve dramatic premium savings. And you can apply for limits of up to $1,000,000!

Now is the time to take a good look at the SFMS/CMA plan if: • It has been more than one year since you last reviewed your life insurance protection • You had a change in lifestyle (e.g., married, had a child, adopted a child, taken out a mortgage or business loan or invested in a new practice) • The long-term assets that you once counted on for your financial planning no longer seem as secure as they once did Sponsored by:

• You think you may be paying too much • The amount of coverage provided by your medical group isn’t enough and you can’t take it with you if you leave

Call Marsh today at 800-842-3761 for information on this new program and to determine how you can save on your life insurance!

Underwritten by:

and 29 County Medical Associations & Societies

Administered by:

Insurance is provided by ReliaStar Life Insurance Company, a member of the ING family of companies.

*The initial premium will not change for the first 10 or 20 years unless the insurance company exercises its right to change premium rates for all insureds covered under the group policy with 60 days advance written notice.

49813 (5/10) ©Seabury & Smith Insurance Program Management 2010 • d/b/a in CA Seabury & Smith Insurance Program Management 777 South Figueroa Street, Los Angeles, CA 90017 • 800-842-3761 • CMACounty.Insurance@marsh.com • www.MarshAffinity.com

CA Ins. Lic. #0633005 • AR Ins. Lic. #245544

When was the last time a doctor came to YOU?

At California Pacific Medical Center’s Atrial Fibrillation and Arrhythmia Center we are com-

mitted to a comprehensive team approach in treating your patient. Whether a patient is having debilitating palpitations, recurrent syncope or severe heart failure, sensitive and difficult challenges await – for them and their family.

We are Andrea Natale, M.D., Steven Hao, M.D. and Richard Hongo, M.D., electrophysiologists who specialize in complex ablation procedures.

In fact, we have the highest atrial fibrillation ablation volume on the West Coast; last year, we performed over 450 procedures. We would

like to make an appointment to see you in your office. Why?

We’d like the opportunity to acquaint you with our facilities, staff and equipment – including California Pacific’s new Stereotaxis lab. We’d also like to help familiarize you with referral indicators for your patients with arrhythmias, particularly atrial fibrillation.

The Atrial Fibrillation and Arrhythmia Center offers: •

Board certified, fellowship trained cardiac electro- physiology specialists

•

State of the art technology and facilities for the treatment of arrhythmias

•

Nationally and internationally recognized expertise in complex ablations, providing care for patients and education for physicians throughout the world

•

In 2009, 3-star rated (top honor) by United Healthcare for Electrophysiology

•

Dedicated arrhythmia nurse and nurse practitioner to provide continuity from the consultation through the procedure to follow ups

Let’s schedule an appointment for a visit to your office: 415-600-7459

www.cpmc.org/services/heart