Health Care Proxy or Clinical Judgment?
End of life care is a difficult subject. It finally has a thorough and appropriate treatment. End-of-Life Communication in the ICU, A Global Perspective, edited and co-written by David W. Crippen, MD, is an excellent treatise on what goes on in the end-of-life jungle. I say this not because I contributed a chapter to this work, but rather, because clinicians will find helpful and useful material in it. I also mention it because the legal chapter in the book deals with a topic that comes up frequently in the ICU, and perhaps a little less frequently in the nursing home: Just Who Is In Charge Here? At the end of life, who is it that gets to make decisions about who lives and who dies?
In most cases, it is not the nurses and bedside clinicians. Recently, a New York nurse found out that her clinical judgment did not trump the wishes of the patient. Martha Kovach, RN, agreed to turn in her license after being accused of halting CPR on a nursing home resident being taken to a hospital emergency room. The incident occurred April 17 at a nursing home adjacent to the local hospital. The nurse claimed that she didn't have the proper equipment or enough help, and did the best she could.
If the issue was brain surgery, putting in an IV line, or even intubating the patient, I might agree. But CPR is, by its nature, not something that actually requires equipment. Clinicians by virtue of their jobs are required to do CPR even without an ambu bag, and even without oxygen, and yes, even without a second team member, when the situation requires it. Apparently, in this situation, the situation required it because the nurse surrendered her license to the state rather than fight the charges.
In Kovach's case, the patient had a health care proxy and that required full code efforts be implemented. Whether Kovach agreed or disagreed isn't clear. What is clear is that she started, and then failed to continue. That is an absolute no no!
Irrespective of whether the patient has a health care proxy or not, once CPR is started, it should only be discontinued on a physician's order. f the health care proxy says the patient should not receive CPR, and someone erroneously begins, CPR should continue until it is ordered stopped by a physician. The reason, as so aptly demonstrated by Kovach's case, is that these are the kinds of decisions that are often second-guessed.
When they are second-guessed, they are second-guessed around a conference table, in a well-lighted room, during the day, by well-rested people who have not been up all night and who did not discover a pulseless non-breathing individual at 3:00 a.m. without sufficient help on duty to assist them with CPR. The people second-guessing often have lofty-sounding degrees from important educational institutions, and an appointment to a board by a friendly governor. The civilian members of the board have never rendered patient care at the bedside, and the nurse members have likely not had to make a clinical decision in several years. As a result, the standards that apply are those from the ivory towers of academia, and not those of the real world. Is that fair? Probably not, but it is reality. As someone who defends nurses in front of the state board, I've seen the results when the Board decides to apply standards that are not based on reason or clinical rationales.
What role does clinical judgment play? That's hard to discern. When a patient is found cold, blue, and in the early stages of rigor, the application of CPR is not only futile, it's usually inappropriate. But where a rattled aide or co-worker begins, that CPR should not be stopped until the patient is pronounced or state-appointed personnel order it stopped.
Clinicians must be wary not only of being second-guessed by their professional board, but also by the family who may be completely convinced that Uncle Seymour, with CPR, would have pulled through in spite of his advanced rigor-mortis and non-functioning brain stem. Families like that tend to sue, and those lawsuits, even if they ultimately are unsuccessful, are still costly.
There are also a variety of ways to err in end-of-life care. Who has the authority to terminate life support? Is it the wife? Is it the children? Although all of these may need to be consulted, the fact is that anyone who could bring an action for wrongful death is a person that needs to be part of the decision-making process unless the patient has ended the speculation about who is proper to speak for them by giving someone a durable power of attorney for health care. This document permits the "agent" to make decisions for the "principal" and decide if life support should be continued or withdrawn. But, what if the agent has a conflict, or is exercising his authority in a way that may indicate his wishes conflict with those of the patient?
The answer, one that is both proper and expensive, is to involve the courts. Guardianship is a court-monitored process that allows a judge to appoint the proper person to make the end-of-life decision for the patient. Decisions to terminate life support can't be fixed with an eraser, and so it is important to get them right. If you don't understand what the rules are, and when a health care power of attorney is in force and when it is not, then it is important to have good legal help available to you to assist with these kinds of issues. Sometimes hospitals sue to get courts to appoint guardians so that they do not bear the legal responsibility for terminating life support. Sometimes these struggles drag on for decades, like Terri Schiavo, whose case ultimately reached the 11th Circuit Court of Appeals.
If you don't know what a patient's code status is, it is a good idea to check. And, if you haven't taken a look at the institutional policies on CPR, and when it is to be started, and when it may be stopped, then it's a good idea to dust those off and take a careful look.
The license you save may be your own!