Medical Ethics and Professionalism

2. Medical Ethics and Professionalism Richard L. Elliott, MD, PhD, FAPA Director, Medical Ethics Professor, Internal Medicine and Community Medicine Mercer University School of Medicine Adjunct Professor Mercer University School of Law

4. Ethical dilemma? • You, as the on call member for the hospital ethics committee, are asked to consult about a mother who is 11 weeks pregnant, has BP 240/160, impending heart failure, and the physician tells you that if surgery is not performed to terminate the pregnancy there is almost a 100% certainty the mother and baby will die. All other measures have been unsuccessful. What do you do? • The hospital is Catholic, which forbids abortion even to save the life of the mother. What do you do?

6. November 2009 Mother, 11 weeks pregnant with severe pulmonary hypertension, doctors believed only way to save life was to terminate pregnancy • Sister McBride on call as member of hospital ethics committee, decided along with patient, doctors, to terminate pregnancy • May 19, 2010 Sister McBride excommunicated and reassigned • December 22, 2010 Bishop Olmsted ruled St Joseph’s Hospital cannot call itself Catholic

7. Goals • What is medical ethics? • Medical ethics and professionalism at MUSM • Expectations for Community Medicine I • What is an ethical dilemma? • What are the principles of medical ethics? • How to analyze an ethical problem • Introduction to informed consent and confidentiality • Introduction to surrogate decisionmaking • Introduction to professionalism

8. What is Medical Ethics? • The application of moral principles and analysis to medical situations • Not bioethics

9. Overview of MUSM Medical Ethics and Professionalism • First Year • Orientation • White Coat ceremony • Medical history, Delivering bad news, . . . • Introduction to Medical Ethics and Professionalism • Research opportunity as Summer Scholar • Basics of Health Care Reform • Ethics Interest Group - Savannah • PPL?

10. Medical Ethics and Professionalism Overview • Second Year • Clinical research • Pharmaceutical companies • Physician impairment • Student abuse

11. Medical Ethics and Professionalism Overview • Third Year • Professionalism as a third year student • Internal medicine – end-of-life, futility of care, physician assisted suicide • Pediatrics - child abuse, neonatal care • Obstetrics and gynecology – reproductive technologies, genetic screening • Surgery – case analyses • Psychiatry – competence, involuntary treatment, boundary violations, duties to third parties • Family medicine – elder abuse, domestic violence, medical errors

12. Medical Ethics and Professionalism Overview • Fourth Year • Senior Case analysis • Ethics in the Emergency Room • Electives • Capstone? • Risk management • Health care and resource allocation • Special topics

13. Medical Ethics and Professionalism – Year One • First week - two lectures • Introduction to Medical Ethics and Professionalism • Principles of medical ethics • Informed consent and surrogate decisionmaking • Confidentiality • Procedure for ethical case analysis • Principles and Codes of Medical Ethics and Professionalism • Oath of Geneva • Second week • Group discussion of two cases on medical ethics site • Advance directives • Confidentiality

14. At the end of these two weeks, you should be able to: • Describe principles of ethics and professionalism • Identify an ethical dilemma • Describe process of ethical case analysis • State basis and principles of informed consent • State basis and exceptions to patient confidentiality • Describe current challenges to the medical profession

15. Resources and Examination • Elliott_rl@mercer.edu • Dr. Greenberg greenma2@memorialhealth.com • Medicine.mercer.edu Ethics site • Academics • Degree Programs • Doctor of Medicine -> Medical Ethics -> First Year • Powerpoints posted on Ethics site Thursday Feb 16 • Exam on Powerpoint material • 10-15 questions • MDE format • Not a fluff exam – look at details!

16. What Would You Do? • Case 1: 36 year old man presents in respiratory distress, in the course of which he is found to be infected with HIV. He is firm that he does not want his wife to know. • Case 2: A 25 year old woman victim of a single car MVA enters a persistent vegetative state. After four years, her parents petition to have her feeding tube removed. The hospital insists on a court order, and the victim’s closest friend and parents testify that she would not have wanted to have a feeding tube.

17. What is an Ethical Dilemma? • A conflict between ethical principles, i.e., “what is the right thing to do?” • What is “medically” right vs. patient preference • Jehovah’s Witnesses and transfusions • What is preferred by patient vs. proxy decision maker • Rights of minor vs. legal guardians • What is best for patient vs. what is best for society • Commitment laws, notification of sexual partners of patients with HIV

18. What do Mercer Students Consider Ethical Dilemmas? 2008 2009 • Confidentiality 17 6 • Decisionmakers 17 15 • Right to refuse 4 8 • Right to treatment 4 3 • Futility of care 4 15 • Medical error 2 3 • AIDS/HIV 7 4 • Pregnancy 6 8 • Jehovah’s Witness 3 4 • DNR/ventilator 4 • Professionalism 12

19. Two Medical Dilemmas • Case 1 – HIV and Confidentiality • Case 2 – PVS and feeding tube removal

20. Two Medical Dilemmas • Case 1 – HIV and confidentiality • The patient has a right to keep his records confidential • The wife has a right to be protected • Case 2 - PVS and feeding tube removal • Patient has right to have wishes respected • State has right to have its laws respected • Hospital has a right to determine what interventions it supports • Physicians have a right to decide what treatments they provide

21. How to Analyze an Ethics Case,(or how do I figure out what’s the right thing to do?) • What are the medical issues? • Risks, benefits, alternatives, prognoses • Who are the stakeholders? • Patient, family, medical staff, hospital, state • Cultural and religious concerns • What are the relevant laws, regulations, ethical codes? • Why is an ethical dilemma being created? • Conflicts between decision makers, law and ethics • Who are possible consultants? • Medical, family, ethicists, ethics committee, lawyers • Possible courses of action • Proposed resolution

22. What are the Medical Issues? • Rule #1 • We are doctors, not moral philosophers or lawyers • Know your medicine! • Most ethical problems have a clinical solution • Diagnosis, nature of treatment proposed, risks, benefits, prognosis with and without treatment, alternatives • Evidence-based decisions • Remember this when you analyze cases next week!

23. Medical Issues • Case 1 – HIV and confidentiality • What is course, prognosis, and treatment for HIV? • What is likelihood wife is or will be infected? • What is wife’s prognosis without treatment? • What is likelihood wife will infect fetus, children? • Case 2 - PVS and feeding tube removal • What is PVS? • What are possible alternatives? • What is prognosis with and without feeding tube?

24. Who are the stakeholders (potential decisionmakers)? • Patient • Quality of life, autonomy, spiritual needs • Family • Proxy decision makers, quality of life • Physician • Risk management concerns • Medical profession • Standards • Hospital • Policies, accreditation, affiliations • State • Resource allocation, legal regulation

25. Stakeholders • Case 1 – HIV and confidentiality • Patient • Wife • Children • Physician • Medical profession • State • Case 2 - PVS and feeding tube removal • Patient • Parents • Medical profession • State

26. What are the Relevant Laws? • Statutory vs. case law • Official Code of Georgia, Code of Federal Regulations (Federal registry) • Case law • Binding at appellate level in jurisdiction • Two famous (board material) ethics cases • Karen Ann Quinlan • Nancy Cruzan

27. Legal Issues – HIV and Confidentiality • Case 1 – HIV and confidentiality • HIPAA • O.C.G.A and confidential nature of HIV information • § 24-9-47.  Disclosure of AIDS confidential information (b) Except as otherwise provided in this Code section:   (1) No person or legal entity which receives AIDS confidential information pursuant to this Code section or which is responsible for recording, reporting, or maintaining AIDS confidential information shall:      (A) Intentionally or knowingly disclose that information to another person or legal entity; or

28. Legal Issues – HIV and Confidentiality • But: • (g) When the patient of a physician has been determined to be infected with HIV and that patient's physician reasonably believes that the spouse or sexual partner or any child of the patient, spouse, or sexual partner is a person at risk of being infected with HIV by that patient, the physician may disclose to that spouse, sexual partner, or child that the patient has been determined to be infected with HIV, after first attempting to notify the patient that such disclosure is going to be made; And: • A physician having a patient who has been determined to be infected with HIV must disclose to the Division of Public Health (O.C.G.A. 31-12-2(b))      (A) The name and address of that patient;      (B) That such patient has been determined to be infected with HIV; and      (C) The name and address of any other person whom the disclosing physician or administrator reasonably believes to be a person at risk of being infected with HIV by that patient.

29. Legal Issues – Removal of Feeding Tube • Case 2 - PVS and feeding tube removal • The patient did not have an advance directive • Power of attorney for health care • Living Will • In the absence of an advance directive, the state may require by clear and convincing evidence a showing of what the patient would have chosen under the same or similar circumstances • Georgia Advance Directive for Health Care • Combines Living Will and Durable Power of Attorney for Health Care

30. Ethical dilemmas are conflicts between or among ethical principles • What are commonly accepted ethical principles in medicine?

31. Principles of Medical Ethics • Autonomy • “Every human being of adult years and sound mind has a right to determine what shall be done with his own body” Schloendorff, 1914 • Right to Privacy • Beneficence • Act for the good of the patient • Promote good • Remove or prevent harm • Non-maleficence • Primum non nocere • First, do no harm • Social justice • Access to heath care resources

32. Four Principles of Medical Ethics • Autonomy • Beneficence • Nonmaleficence • Social Justice

33. Why Does an Ethical Dilemma Exist? • Case 1 – HIV and confidentiality • The patient has a right to keep his records confidential • Autonomy, Nonmaleficence • HIPAA • The wife has a right to be protected • Right to privacy (?) • Case 2 - PVS and feeding tube removal • Patient has right to have wishes respected • Right to privacy, Autonomy • State has right to have its laws respected • Hospital has a right to determine what interventions it supports • Physicians have a right to decide what treatments they provide

34. Possible Consultants • Case 1 – HIV and confidentiality • Infectious disease • Clinical • Policy on HIV and confidentiality • Division of Public Health • Ethicist • Health or malpractice insurance lawyer • Case 2 - PVS and feeding tube removal • Medical • Establish prognosis, possible alternative interventions • Others who knew patient’s wishes • Ethics Committee • Medical Director • Futility Policy? • Mediator

35. Possible Courses of Action • Case 1 – HIV and confidentiality • Do nothing • Contact wife • Contact Division of Public health • Refer to another physician • Case 2 - PVS and feeding tube removal • Do nothing • Remove tube • Contact hospital attorney to block family’s wishes

36. Proposed Resolution • Case 1 – HIV and confidentiality • Attempt to meet with patient and wife to discuss test results and implications, offer to test wife • If patient refuses, contact DPH for partner notification • Case 2 - PVS and feeding tube removal • Remove tube or refer to another physician/hospital

37. Two Ethically Problematic Situations • Informed consent • Surrogate decisionmakers • Right to die/wrongful life • Karen Ann Quinlan, Nancy Cruzan, Terry Schiavo • Advance directives • Rights of minors • Treatment refusal • Jehovah’s Witnesses, dialysis, Dax • Confidentiality • When to breach confidentiality • Tarasoff

39. Ethical and Legal Bases of Informed Consent • What is the ethical basis for informed consent? • Autonomy underlies informed consent • Assault and (intentional tort of) battery

40. Informed Consent • Three Elements of informed consent • Voluntariness • Information • Competence (capacity)

41. Three Elements of Informed Consent • What three elements comprise informed consent? • Information • How much? • Competence (capacity) • How do we determine this? • Voluntariness • What constitutes coercion?

42. Voluntariness • Freedom from undue influence • Incentives for research? • Would decision of patient with HIV to disclose information to wife be voluntary if alternative is partner notification through public health? • Voluntary within constraints • Would decision of family to request withdrawal of feeding tube be voluntary if hospital threatened them with threat of massive health care costs?

43. Information – What must be disclosed?? • No doctrine of informed consent in Georgia. Georgia requires disclosure “in general terms the treatment or course of treatment” but for surgical or diagnostic treatments standard is higher (O.C.G.A.31-9-6.1) • For surgical procedures, amniocentesis, contrast material “disclosure of the material risks generally recognized and accepted by reasonably prudent physicians which, if disclosed to a reasonably prudent person in the patient's position, could reasonably be expected to cause that person to decline the proposed treatment or procedure because of the risk of injury that could result” • Good practice to disclose diagnosis, nature of treatment, risks, benefits, alternatives, prognosis with and without treatment, and to invite questions

44. What should be disclosed? • Case 1 – HIV and confidentiality • Meaning of test • Risk of infecting wife • Possible criminal consequences for failing to inform her • Woodrow Grady, Macon, sentenced to two years in 2009 • HIV and fetus, children • Treatment possibilities, alternatives, side effects, prognosis • Case 2 – PVS and removal of feeding tube • Prognosis with and without feeding tube • Alternatives • Costs – make it clear care does not depend on ability to pay

45. Competence • § 31-9-2. • (c) For purposes of this Code section, "inability of any adult to consent for himself" [shall mean the adult] "lacks sufficient understanding or capacity to make significant responsible decisions" regarding his medical treatment or the ability to communicate by any means such decisions.

46. Competence • Competence or capacity is specific to a particular decision • Competence is a legal decision, but used synonymously with capacity • Range of competence: • Ability to communicate decision • Not refusing • Simple assent • Simple Understanding • E.g., able to paraphrase • Appreciate complexities of decision • Medical • Interpersonal • Spiritual • Level of competence needed related to risk/benefit

47. Competence • Case 1 – HIV and confidentiality • Was patient competent to release or to deny release of information? • What if retarded? • Depressed? • Demented (HIV dementia)? • Delirious? • Case 2 – PVS and PEG removal • Were parents competent to request tube removal?

48. When the Patient is Incompetent • Karen Ann Quinlan • 1954-85 • 21 yo, Valium and ETOH • PVS, ventilator • Parents sued to remove ventilator • 1976 New Jersey Supreme Court decided on right to privacy • “Right to die”

49. When the Patient is Incompetent • Nancy Cruzan • 1983 MVA • PVS, feeding tube • 1987 parents sued to remove tube • Court liberty interest in being free from unwanted intrusions • Loosely “right to die” • Patient Self-Determination Act 1990

50. When the Patient is Incompetent • Guardian • Probate court • Guardian of person or estate or both • Advance directive • Specifies what is to be done in the event patient is unable to make a decision • Durable Power of Attorney for Health Care • Who will make decision • Living Will • Specifies particular decisions, e.g., ventilators • Georgia Advance Directive for Health Care includes both Power of Attorney and Living Will provisions (posted on ethics site, First Year)