Spring 2003 Vol. 10, Issue 2
Question: A 42-year-old custodian with diabetic neuropathy was treated for sepsis. A clot formed around an intravenous catheter and anticoagulation was instituted. He was confined to bed and chair, transferring with assistance. He had repeatedly fallen at home, but had refused to enter a nursing home. In the past 10 years, he had been hospitalized often under the care of an internist or her partner. The internist convinced him to execute a health care proxy. His advance directives included not being kept alive by mechanical ventilation. Estranged from family and friends, he begged his doctor to serve as his health care agent. She reluctantly agreed. He named her partner as alternate. Despite his sometimes idiosyncratic thought patterns, his physicians agreed that he had decisional capacity. A hospital consultant noted that a doctor may not be both attending physician and health care agent for the same patient. The internist told the patient that if he were to become incapacitated, she would turn his care over to her partner and become his health care agent.
That evening, the patient tried to return to bed without help and fell. No one called the internist and she first learned of the fall on rounds the next morning. Later that day, the patient complained of a headache. A CT scan showed small hemorrhages in the frontal lobes and a small subdural hematoma. Eighteen hours after he fell, the patient received vitamin K and fresh frozen plasma to reverse anticoagulation. A neurologist advised transfer for possible surgery. The patient consented to intubation and ventilation for transport with assurance that, if his condition worsened, he would not be kept alive by mechanical ventilation. On arrival, he was unresponsive. A repeat CT scan showed massive bleeding in the brain. The neurosurgeon concluded that evacuation of subdural blood would not improve the patient's clinical condition.
Did the internist make the right choice by agreeing to become the patient's health care agent? Can problems
Response: At first blush, this case appears to support the correctness of the physician's decision to serve as the patient's health care agent: when she transferred the patient for neurosurgical care she ceased to be his attending physician. Soon thereafter, when he became comatose, she became his legally appointed decision-maker, empowered to speak with the same authority he formerly possessed. 1 By conveying the patient's wishes as gleaned through direct conversation and his written directive, she could, if necessary, compel the surgeons to withdraw life-sustaining treatment.
There are, however, problems with the case. If physicians and proxies, even when well-intentioned and well prepared, never disagreed about a patient's care, there would be no need for surrogacy. Here, both roles are embodied in a single person, internalizing any disagreement. If the first scan had showed what the second one showed, and neurosurgery had refused to accept the patient, the internist might have felt conflicted.
She could have chosen to remain his attending physician to pursue treatment, because the outcome remained in doubt: the concept of futility is controversial and, when tested, may not receive legal support. 2 Physicians who ignore advance directives usually claim that the directives are not operative because the situation is not "hopeless" or the condition is not "terminal." 3 Some states foster this kind of evasion by restricting the agent's authority to "terminal illness" or "permanent" coma. The state in which this patient lived (New York) however, does not make such restrictions.
Paradoxically, by abrogating her role as attending in favor of that of agent, the internist could gain greater control over the outcome of the case. She might, however, hesitate to carry out the patient's wishes. His fall and the delay in reversing anticoagulation no doubt intensified her conflict. With his history, he should perhaps have been watched constantly from the time of admission. Moreover, it would be hard to argue that, after he fell, he did not suffer further harm from failure to reverse anticoagulation promptly. The perceived threat of a lawsuit, brought by a distanced family, might sway the internist as agent toward aggressive treatment rather than strict adherence to the patient's directives. Despite her prior assurance to her patient, she had the legal right to decline to serve as his health care agent when the time came. That might have been the wiser choice.
In 24 states and the District of Columbia, a principal's "doctor" (or "attending" or "supervising" physician) may not serve as health care agent. 4 New York and New Jersey indicate that the doctor may be one or the other but not both at the same time. As in this case, interpretation remains debatable. Arguably, a person designated as agent to be becomes the agent only if and when the principal becomes medically incompetent. Only the District of Columbia makes it clear that a principal may not appoint an agent who is his or her physician on either the date of signing or the date on which the document takes effect.
Arguing against such restrictions, Rai, Siegler and Lantos 5 claim that "managing potential conflicts serves patients better than denying them the right to choose [their agent]." As this case shows, it is difficult for the physician to assume both roles, even sequentially. Laws barring physicians from acting as their patients' legal surrogates protect not only patients but their doctors as well.
David Goldblatt, MD
Professor Emeritus of Neurology and of the Medical Humanities University of Rochester School of Medicine and Dentistry, NY
Outcome: After the surgeon discussed the case with the internist, who was then acting as health care agent for her former patient, the ventilator was stopped. The patient soon died, without regaining consciousness. The family has not pursued legal action. The physician has decided she will never again accept appointment as health care agent for one of her patients.
Footnotes
1 Bernat JL. >Ethical Issues in Neurology, 2nd ed. Boston: Butterworth-Heinemann. 2002:88-93.
2 ibid., pp 215-39.
3 Teno JM, Stevens M, Spernak S, Lynn J. Role of written advance directives in decision making: insights from qualitative and quantitative data. J Gen Intern Med 1998;13:439-46.
4 www.partnershipforcaring.org
5 Rai A, Siegler M, Lantos J. The physician as health care proxy. >Hastings Cent Rep 1999;29(5):14-9. Also see Bernat, p.92.
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Dartmouth-Hitchcock Medical Center
The opinions expressed in the journal, Lahey Clinic Medical Ethics,
belong to the individual contributors and do not represent the institutional position
of Lahey Clinic on any subject matters discussed.
