Opinion

Conflicts Of Interest In Discussions About End-Of-Life Care

Joanne Butler Contributor
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On Wednesday, the Institute of Medicine and the National Academy of Science (both institutions receive a combination of federal and private funding) issued a report on how America’s medical system lacks proper end-of-life care. (You can read a summary here.) While I agree that end-of-life care is an issue worth discussing, I think the report’s recommendations contain a basic flaw: having a patient register his/her preferences with the doctor. It’s a lawyer — a professional third-party advocate — the patient needs, not a doctor.

Earlier this summer, the Obama administration was pushing for doctor-patient end-of-life discussions by floating a regulatory proposal to have Medicare pay for this activity. Yesterday’s report adds credence to the administration’s views on this. But that still doesn’t make it the right approach.

What’s the problem with having ‘the’ discussion with your doctor? First, few doctors today are independent practitioners. Most doctors today are employees of large medical groups (and thanks to Obamacare this will be increasing) and many such groups include a hospital. The group may be a for-profit or a non-profit entity, but the key factor is the hospital. More about that in a moment.

Assuming Medicare will pay for ‘the’ discussion, the aim of the large medical group will be to have the discussion be as brief as possible – as Medicare is likely not to pay very much for the activity.

Hence the large medical group will devise a checklist form.

Let’s say Dr. Jones of Gizmo Medical Group hands Mrs. Smith the Gizmo end-of-life form – a questionnaire, consisting of a list of issues with ‘yes’ and ‘no’ boxes. Doctor and patient spend a few minutes talking about the questionnaire. Then Mrs. Smith checks some boxes and signs Gizmo’s form; the receptionists witness the form, and as one of them is a notary, she notarizes a copy for Gizmo’s files and one for Mrs. Smith.

Sounds sensible, but is it in Mrs. Smith’s best interests? For example, do the phrases in Gizmo’s form actually represent what Mrs. Smith wants?

Suppose Gizmo’s form asks: “Can we use extraordinary measures to keep you alive if you are in a coma for more than one week or are diagnosed as being in a persistent vegetative state?” A natural reaction might be to check the NO box, but what exactly do ‘extraordinary measures’ mean?

As we learned in the Terry Schiavo case, a hospital may define ‘extraordinary measures’ to include providing food and water for a patient in a coma or persistent vegetative state.

What would Mrs. Smith’s answer be if the question was reworded to ask: ‘If the doctor determines you’re brain dead, or if you’re in a coma for more than a week, do you give us permission to stop feeding you and giving you water?’ Would Mrs. Smith agree to that? Would you?

Here’s where the hospital connection enters the picture. From a purely financial angle, a hospital is likely to want to have the patient’s permission to stop providing food and water when it deems the patient is beyond recovery.

Having a hospital patient in a coma or vegetative state is costly – with Medicare or Medicaid picking up a lot of the tab, but not all of the tab. If the patient lacks secondary insurance, the hospital will have to make up the payment gap.

Therefore (again, from a financial viewpoint) a hospital would prefer a shorter stay for such patients. But will Dr. Jones explain that to Mrs. Smith during ‘the’ discussion? Probably not; remember, Dr. Jones is an employee of the medical group that owns the hospital.

And it’s not just hospitals that have conflicts of interest concerning end-of-life decisions – relatives may have them too. The Schaivo case also showed that even when a husband had a clear financial interest in withholding food and water from his vegetative wife (as Mr. Schaivo was living with another woman, and had a child by her), by Florida law he was deemed as the sole decision maker of how his wife should be treated, as Terry Schaivo had no medical directive.

The Schaivo case was dramatic, but it’s easy to foresee situations where an adult child has the medical directive authority of an elderly parent – and the child has financial problems, which would be solved if Pop could be ‘let go’ sooner rather than later.

Or what if the adult child is grappling with emotional problems over Pop’s medical distress, and is persuaded to forego ‘extraordinary measures’ without understanding what the term means?

Having a lawyer, a dispassionate third-party person whose sole purpose is to advocate for the client, changes this picture completely.

Imagine Mrs. Smith bringing the Gizmo Medical Group checklist form to her lawyer. Lawyer calls Gizmo’s counsel and asks, ‘what does “extraordinary measures” mean?’ Lawyer tosses Gizmo’s form in the trash, draws up a new directive that exactly matches Mrs. Smith’s wishes (such as: even if I’m in a coma, feed and water me), and deems the lawyer the decision maker (or one of the decision makers) in the event Mrs. Smith is incapacitated.

Not all lawyers are ethical, but they do risk disbarment if they are not zealous in advocating for their client. There is no such brake on the actions of a medical group pushing a favorable (to the hospital) ‘end-of-life checklist’ or of a spouse or an adult child with a financial motivation in a loved one’s death.

Should people have end-of-life discussions? Yes, absolutely. With their spouse or loved one?  Yes, absolutely. Do your wishes need to be in writing? Yes, absolutely. But use a lawyer who shares your values, not your medical provider’s checklist form. Plus, get your lawyer on your medical directive team – and have something in your wallet that requires contacting your lawyer if you’re incapacitated.

As for that medical provider checklist form, its best use is lining birdcages.