Life, death, lawyers and ethics

LifeSite and Wesley Smith's "SecondHand Smoke" are covering the very public grief of a family facing the death of their father due to asbestos-related lung cancer.

There are accusations of euthanasia and "precipitating" death. In fact, the story does not support any of these.

From the Wall Street Journal Opinion by Pamela Winnick:

A medical resident--we called her "Dr. Death"--at the Intensive Care Unit at Long Island's North Shore Hospital chased us down the hallway.

"Your husband wants to die," she told my mother, again. Just minutes before I had asked her to leave us alone.

"He can't even talk," I reminded her.

"He motioned with his hands when we tried to put in the feeding tube," she said.

Not exactly informed consent, I pointed out as we turned our backs on her and walked down the hallway, trying to avert our eyes from the other patients in the ICU that night, each of them at various points in the so-called "twilight zone" between life and death.

Afflicted with asbestos-related lung cancer, my father, Louis Winnick, was rushed into the ICU in late May after a blood clot nearly killed him. The next day, my husband and I raced to New York from Pittsburgh. I packed enough work and knitting for what might be an extended stay, but I also put in a suit for what I was certain would be my father's imminent funeral. Still, he wasn't dead yet. And we had no intention of precipitating the inevitable.

"Dr. Death" was just one of several. A new resident appeared the next day, this one a bit more diplomatic but again urging us to allow my father to "die with dignity." And the next day came yet another, who opened with the words, "We're getting mixed messages from your family," before I shut him up. I've written extensively about practice of bioethics--which, for the most part, I do not find especially ethical--but never did I dream that our moral compass had gone this far askew. My father, 85, was heading ineluctably toward death. Though unconscious, his brain, as far as anyone could tell, had not been touched by either the cancer or the blood clot. He was not in a "persistent vegetative state" (itself a phrase subject to broad interpretation), that magic point at which family members are required to pull the plug--or risk the accusation that they are right-wing Christians.

I complained about all the death-with-dignity pressure to my father's doctor, an Orthodox Jew, who said that his religion forbids the termination of care but that he would be perfectly willing to "look the other way" if we wanted my father to die. We didn't. Then a light bulb went off in my head. We could devise a strategy to fend off the death-happy residents: We would tell them we were Orthodox Jews.

My little ruse worked. During the few days after I announced this faux fact, it was as though an invisible fence had been drawn around my mother, my sister and me. No one dared mutter that hateful phrase "death with dignity."

Though my father was born to an Orthodox Jewish family, he is an avowed atheist who long ago had rejected his parents' ways. As I sat in the ICU, blips on the various screens the only proof that my father was alive, the irony struck me: My father, who had long ago rejected Orthodox Judaism, was now under its protection.

As though to confirm this, there came a series of miracles. Just a week after he was rushed to ICU, my father was pronounced well enough to be moved out of the unit into North Shore's long-term respiratory care unit. A day later he was off the respirator, able to breathe on his own. He still mostly slept, but then he began to awaken for minutes at a time, at first groggy, but soon he was as alert (and funny) as ever. A day later, we walked in to find him sitting upright in a chair, reading the New York Times.

(Emphasis is mine)

From a link on Euthanasia at the bottom of the LifeSite article concerning Ms. Winnick's article:

"Euthanasia is the deliberate act of putting an end to a patient’s life for the purpose of ending the patient’s suffering."

I suspect a local - meaning the treatment team including residents, fellows, and the attending - influence with a prejudice toward low/no interference in patients with a terminal condition. The upper level residents and fellows would be the place I'd look. Someone taught the resident to use the phrase, "Your father wants to die." There's also the possibility that she's had a bad experience in her professional or private life and that she's projecting or assuming too much from Mr. Winnick's fighting when the feeding tube was placed (probably a nasogastric tube - through the nose to the stomach - at this point in the story.)

However, please note the timeline in the original essay and that the doctors were not suggesting "precipitating" anyone's death. The disease is/was killing Mr. Winnick. The blood clot was symptomatic of changes due to the cancer. It is absolutely true that it was a miracle that Mr. Winnick was able to come off the ventilator and that he had no heart or brain damage due to the blood clot.

The original article told us that these conversations were in the ICU, while the author's father was still unconscious. (Later reports on LifeSite and SecondHand Smoke were not as clear cut. This one seems to contradict the description of Mr. Winnick's condition described above and to be a later report.)

If there was no advance directive, how could the treating team know how far to go with intervention in the face of a patient with terminal cancer and a blood clot (I assume in the lungs) who has very little chance of being weaned from the ventilator due to the damage from the cancer, aggravated by the clot, before the patient has regained consciousness, without asking the family?

Many people would consider death during the unconsciousness due to a pulmonary embolism or pneumonia preferable to pain and air hunger or liver failure, kidney failure, bleeding disorders as the clotting factors are used up, and the other problems that I can imagine down the line.

Especially in these days of autonomy and accusations that doctors are patronizing and have all sorts of bad motivations and worse actions, it is/was appropriate to hold a family meeting in the ICU to discuss the attitude toward accelerated treatment, if needed. The treatments to be anticipated are interventional, possibly painful and require multiple departments and people: surgical intervention for a tracheostomy tube for the ventilator, permanent placement of a gastric feeding tube, cardiac compression and/or shocking in the event of heart attack or arrhythmia, addition of pacemaker, dialysis, or parenteral feedings [high-tech IV solutions that require constant monitoring and adjusting and which cause liver damage in the long-term]. If there were recurrent admissions for emergent conditions due to more clots or infections, I would discuss the risk vs. benefit of repeated painful interventions and manipulations in the face of new complications.

The discussion just happens to be the right thing to do, as well as good risk (lawsuit risk, that is) management.

After all, if lawyers have taught us anything, it's that if we don't document, we didn't do it and that anyone can be sued for anything, right?

Now, I agree with Ms. Winnick that bioethics doesn't seem to be all that ethical, far too often. (In fact, I call it the "formalized study of who we can kill.")

On the other hand, medical Clinical Ethics, a much older discipline that is too often considered a sub-division of bioethics, does tend to be more ”ethical.”


Unfortunately, ethics training in medical school focuses more on how to avoid lawyers than on clinical ethics. We are taught to avoid malpractice, to obtain informed consent, to code properly so the Federal government won't come in with their fines and guns, and to avoid crossing personal barriers. (The latter usually means sexual barriers.)

I’ll admit that clinical ethics has come to focus more on autonomy and justice (as in fair distribution) more than on beneficence guided by non-maleficence. Rather than “Heal when possible, but First, do no harm,” medical students learn that physicians should consider all world views as equal. Lord forbid that we mention Him (the subject of the last half of that original editorial by Ms. Winnick) or that we imply that some actions are flatly wrong and others are “the right thing to do.” Some ethicists teach that doctors have no right to let their consciences influence their practice of medicine, at the risk of being "idiosyncratic," "bigoted," and "discriminatory."

I haven’t figured out where “rights” and “should” come in to play if I have no conscience. Perhaps, doctors should just follow orders.