- - Thursday, January 9, 2014


Abortions no longer are relegated to back alleys, but one day lifesaving procedures may be.

In fact, we may be almost there. The machinery is in place.

In Texas, hospitals can refuse to perform “futile” care, even if it as simple as hydrating a patient. The hospital, or perhaps a court, determines when someone’s care becomes futile. Care that effectively prevents death, while failing to restore a patient to productive life, may be deemed futile. It does not, after all, help us achieve the goal of improving “population health.” In fact, it diminishes the overall health score.

In California, it is actually against the law to do surgery on a dead patient, including a brain-dead patient, such as one who was recently referred to as “dead, dead, dead, dead.” A surgeon who did so could lose his hospital privileges, his medical license, and even his liberty. The exception, of course, is to harvest still-living organs for transplantation. Indeed, the organ shortage is the reason the concept of “brain death” was developed.

When the Independent Payment Advisory Board swings into action, things such as feeding tubes in patients who have a low chance of “meaningful” recovery will surely not be found cost-effective. When most doctors and hospitals are in an “Accountable Care Organization,” they will be “accountable” — liable — to the payer for wasting resources on people who are nearing the “end of life,” even if not yet pronounced dead.

Besides the cost of care or the need to free up a bed, there may be other reasons why a hospital needs a patient to be dead. If a patient is in a coma after a surgical complication, a malpractice suit is likely. Tort reform may limit recovery for pain and suffering if the patient dies, but there are no limits on the cost of lifetime care.

A brain-dead patient is not in the same situation as the Terri Schiavo saga. Although in a persistent vegetative state for 15 years, no one ever suggested that Schiavo was brain-dead. The controversy was over whether she had some awareness. If allowed, she could have lived for years longer with a feeding tube and nursing care.

This is not true of a brain-dead patient. The hospital need not worry about having the patient on a ventilator for weeks or months. Two days is about the maximum. The patient rapidly loses the ability to regulate body temperature, blood pressure and other basic functions. The temperature may fluctuate wildly, and then the body soon assumes room temperature, where metabolic activity cannot occur.

If this does not happen, the patient is not brain-dead. The definitive test is an arteriogram or nuclear medicine scan that demonstrates absence of blood flow. This test is seldom done. Instead, doctors rely on absence of detectable neurologic functions, such as brainstem reflexes or brain waves. Cells that are not able to function in this way may yet be alive, able to maintain their structural integrity — and potentially recover.

A rare patient has awakened just before the organ removal. Such patients did not survive brain death; they survived an incorrect diagnosis of brain death.

Sometimes, the incorrect diagnosis resulted from paralyzing or sedating drugs. This is why at least two independent examinations are needed, with enough time in between for drugs to wear off.

Some ethicists concede that doctors may cut corners — for the laudable purpose of saving some other patient’s life with a heart or a liver. Why not for the laudable purpose of saving “resources”? If we can do away with the “dead donor” rule for transplant donors, as many advocate, why wait for the natural end in resource-devouring nondonors?

Members of a hospital staff may jeopardize their careers if they disagree with an assessment that a patient is at the “end of life.”

As Lord High Executioner Ko-Ko argues in Gilbert and Sullivan’s “Mikado,” if the Mikado gives an order for an execution, the prisoner is, legally speaking, as good as dead. Practically, he is dead, “and if he is dead, why not say so?”

A family’s only remedy may be to move the patient from the hospital back home or, perhaps, to a back alley.

Dr. Jane M. Orient practices internal medicine in Tucson, Ariz., and is executive director of the Association of American Physicians and Surgeons.

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