Medicine by jury

I received two comments to my post on the case of Mrs. Ruthie Webster, from the lawyer who runs the “Texas Advanced Directive Blog,” Jerri Lynn Ward, J.D. (I have already offered Ms. Ward any help I can give in these cases.)

(Among other things) Ms. Ward said,

You will NEVER get lawyers out of this issue. This is an issue about people's lives and choices that are being overruled by doctors and hospitals.

The Texas Constitution gives people the right to have disputes concerning property and life decided in the Courts by juries. We aim to see that people have those rights protected.

If you think we will stop fighting you--you are very mistaken.

and,

Further, we have been unable to find an outpatient dialysis center (in other cases) that will take patients who can't sit up. We've had to look for nursing homes who can do the dialysis in-house. Finding such a bed has been a very difficult task. The lady in my Austin case had to be taken home to be dialyzed there.

Let me be clear: I do not believe that the doctor should have withdrawn care from Mrs. Webster under the Texas Advance Directive Act (TADA). I do not believe that the hospital ethics committee should have agreed that dialysis or other life preserving care is medically inappropriate, from what I read in the paper about the facts of the case.

I believe that Mrs. Webster's case manager and social worker should have addressed the need for a change in the level of care, rather than anyone determining whether medical treatment is appropriate or not. The newspaper article said that the hospital had been trying to transfer Mrs Webster, but that the family is resisting.

If the Advance Directive Act, specifically Section 166.046 of the Texas Health and Safety Code, was invoked in this case, I believe that it is a misuse of the Section.

From the description of her health status as told by her daughter in that August 18th article in the Dallas Morning News, I believe that Mrs. Webster no longer meets the criteria for Long Term Acute Care Hospital admission(she no longer needs 8 to 12 hours of direct nursing care each day), and that the appropriate level of care is for her to be discharged to (non-acute) long term care with outpatient dialysis.

I also tried to explain why I believe that the funding should not be an issue.

Medicare is most likely the woman’s insurance since she was on dialysis before the seizure that sent her to (the other) hospital in the first place. She should still be covered under Medicare when it comes to dialysis and certain other kinds of care. Medicare regulations allow the hospital to charge the patient after a certain period of time regardless of the diagnosis.

I did want to relate the complications including loss of license, "exclusion" from virtually all insurance billing indefinitely, jail time, and fines (RICO anti-racketeering triple fines and confiscation of assets were used quite often by the Clinton administration) that can result if Medicare determines that their regulations are broken.

However, I believe that there are times when medical procedures are not medical care. In those cases, it is inappropriate to use the medical procedure, and 166.046 is needed if the patient or surrogate disagrees with the doctor.

Perhaps by focusing on the "values" of the physician, rather than acting according to his medical judgment, we are being distracted. The question should be whether or not treatment is "inappropriate medical care" and who is best qualified to make that determination.

This morning, I watched the first 3 hours of the 12 hour archived video of the August 9th Texas House Public Health Committee hearing. (Free Real Player needed, link available at the video website) A lawyer, Burke Balch, J.D., who believes that 166.046 should be removed from TADA, talked about whether firemen would be allowed to decide that a building’s quality is worth saving when it’s on fire.

A better question would be whether firemen should do everything to save as much as possible of every building on fire, or whether they should use their professional judgment as to when the fire has gone so far that the building can’t be saved and the only thing possible is to pull back and prevent the fire from spreading.

Or perhaps, they can fight the fire while satisfying juries.

(more to follow)