It has been argued because not enough informaton was provided in the op, that the story is unreliable. While this may be tecnically true, to me it is more likely than not a believable story. I personally knew a 17 yo JW girl who was declared mature enough to decide to refuse a life saving blood transfusion. She died of lucemia within months of her origional diagnosis. This was 18 years ago in Susanville, California. Maybe some of you here know of this case. The parents bragged over and over how their daughter gave such "a powerful witness". I think it was their way of coping with the unecessary loss of their only child. MY point: How do any of us know how this beautiful, tallented, loving girl REALLY felt about dieing for a doctrine? She was a 3rd gen girl with a reg pio mother and PO Elder father and grandfather who was the Cong Servant for over 40 years! She was captive of a cult. If she would have agreed to a transfusion where would she go to recover? Who would support her decision? She knew FULL WELL she would be disfellowshipped and disowned by her ENTIRE family and friends. She had NO REAL CHOICE. Incidently,the doctors as well as the parents were fully convinced that a transfusion/s could have saved her.
A child that DIDN'T want to die ... a blood experience you won't read in Awake! or on JW.ORG
by wannabefree 78 Replies latest watchtower medical
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Marvin Shilmer
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“I personally knew a 17 yo JW girl who was declared mature enough to decide to refuse a life saving blood transfusion. She died of lucemia within months of her origional diagnosis. This was 18 years ago in Susanville, California. Maybe some of you here know of this case. The parents bragged over and over how their daughter gave such "a powerful witness". I think it was their way of coping with the unecessary loss of their only child. MY point: How do any of us know how this beautiful, tallented, loving girl REALLY felt about dieing for a doctrine? She was a 3rd gen girl with a reg pio mother and PO Elder father and grandfather who was the Cong Servant for over 40 years! She was captive of a cult. If she would have agreed to a transfusion where would she go to recover? Who would support her decision? She knew FULL WELL she would be disfellowshipped and disowned by her ENTIRE family and friends. She had NO REAL CHOICE. Incidently,the doctors as well as the parents were fully convinced that a transfusion/s could have saved her.”
I think I recall that sad experience. It made me cry then. I still makes me cry today.
It’s as related by authors Guichon and Mitchell:
“One survivor of postpartum haemorrhage without transfusion told us that her real choice was between the living death of losing her family and friends if she chose blood transfusion, or actual death caused by blood loss. The latter seemed preferable.”—(Guichon et al, Free and informed choice in medical treatment: making it safe to choose for Jehovah’s witnesses, International Journal of Obstetrics and Gynaecology, Oct. 2009, Vol. 116, Issue 11, p. 1540.
Marvin Shilmer
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besty
Based on things you’ve revealed during this discussion and a little checking around on my own, I’ve learned some very impressive things of your person and work.
I want to say a big “Thanks!!!” for all your hard work.
If there is any way I can ever be of help please don’t hesitate to contact me.
sometimes a PM is a good idea, unless thats not really the point...
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adamah
Justitia said- Frankly, I did not read your last post, nor do I intend to. I joined this thread only when I agreed with Marvin's statement and disagreed with your statement.
Well, that's the problem: most people find it helpful to read the discussion before entering.
Justitia said- Your statement, as noted above was that "in most cases" the treating doctor does not decide whether or not a minor patient qualifies as a mature minor. I don't think anyone can say for sure what happens in "most cases."
It's a pretty-safe assumption that "in most cases" physicians actually DO remain within the boundaries of their license (AKA their 'scope of practice') by actually respecting the limits of what State Laws allow them to do, since the profession of medicine ("the diagnosis, treatment, correction, advisement, or prescription for any human disease, ailment, injury, infirmity, deformity, pain, or other condition, physical or mental, real or imaginary") actually IS regulated by the State.
Note the definition of practicing medicine does NOT include the right to "go rouge" and violate State laws willy-nilly, as if acting as a judge or legislative body of one who has the power to ignore State statutes which, eg expliciitly define who is considered a minor in WA (RCW 26.28.010).
As you well know, aside from the statuatory limits (i.e. what legislators in Olympia, WA define as allowable practices), the practice of medicine also relies on prior court rulings which are found in common law: this is where the 'standard of care' comes into play, determined by the standards which are used by other practitioners within the profession.
HOWEVER, a practitioner is safest if they practice within the statutory limits of the State, since having to rely on the gray area of 'standard of care' is a DEFENSE in court, which means the provider bears the burden of proof and is in a tougher-to-defend stance of having to produce expert witnesses to testify that in their expert opinion the defendent didn't violate the standard of care (where the plaintiff only hires expert witnesses to testify that the doctor DID violate the same standard of care). Thus the jury must rely on which expert they believe, and regardess of the outcome, it's MUCH EASIER simply to stay within the legislative limits and stay out of court in the first place, since the defendent only needs to point to the state law to justify their actions (and no med-mal lawyer worth their salt is going to take such a case).
Furthermore, any time a provider goes 'off-script' by violating State law they also risk being called before the State's medical provider licensing agency to explain their behavior (in this case, the WA State Medical Commission, within the WA Department of Health); they potentially face disciplinary actions for various violations considered "unprofessional conduct"; this includes having their medical license suspended or revoked.
Here's the 'bad boys of medicine' who had their licenses revoked in WA after the Medical Commission investigated a complaint (from a consumer: it's a complaint-driven process), and the Commission took legal action for various infractions of the 'Uniform Disciplinary Act' (the statutes which regulate licensees and defines statutory limits):
Currently, there's only four physicians listed on the site, so I think it's "pretty safe to say" that most doctors are NOT being disciplined for "going rogue".
(for those lost in this discussion, a doctor violating State law is analogous to a rank-and-file JW who 'runs ahead of Jehovah's chariot', and faces the consequences of getting ahead of the GB's official policies. A 'standard of care' defense would be analogous to getting other long-time JWs to appear at your JC, and state why they think you shouldn't be DFed, since they know of others who do the same thing.)
Justitia said- The case I cited to is an example of that very thing almost happening.
When US courts decide plaintiffs can sue for damages that ALMOST happened, let me know. Until that time, we'll all just have to remain content to recover for damages that actually happened.
Justitia said- If hospitals/providers are internally determining whether or not a minor is "mature," and not seeking outside review, we have no way of determing what happens "most" of the time. I still agree with Marvin.
Funny that you grasp the difficulty of determining what happens in "most" hospitals when deciding if a pt is a "mature minor", but you seemingly have no qualms about Marvin's attempted extrapolation to determine what happened in the rest of the World based on a single study in NZ (which didn't even include any minors)? Huh!
Anyway, you continue to straw-man me, as if I said words I actually didn't say. Read the thread (and since you've already admitted you didn't read it completely before posting, I don't feel it would be appropriate to say, 're-read').
Note that I didn't say a provider had to seek an "outside review" (as you imply above), but instead I've repeatedly stated that if the provider chooses to excede the limits of current WA statutory law by declaring a minor as "mature" (where no such provision exists), the doc should seek the opinion of a competent authority(and whether inside the facility or not is a moot point; as long as they're not directly involved in the patients care is only ONE consideration that would be advisable to follow).
That authority could be (in order of least- to most-risky): the ruling of a judge (who CAN order a transfusion or grant de-facto 'mature minor' by refusing to force a BT, as was done in the case of DL), the advisory of a bioethics panel, or as stated above, seeking out the opinions of other providers (which would be evidence of the provider using a 'standard of care' defense, a bit more risky of an approach, as I've explained above, since although it would pave the way for a defense, the doc nevertheless WAS violating State law AND the advisory opinion of the bioethics panel).
The tenuous stance was rightly recognized by the hospital administrator who could see the defense was weak, since it likely would REQUIRE a defense in civil court if the natural parents filed a wrongful death case against the doc and hospital (BTW, I read a newspaper report that the parents were hostile about the refusal to treat their son, and reportedly THEY called CPS to report). Damn straight, they'd likely sue IF the judge hadn't delivered a ruling that provided last-minute cover to the hospital/doc.
And as you should know, preparing a defense is costly, EVEN IF the case settles out of court before it's heard. That cost is born by the defendent's malpractice carrier and/or the hospital itself who is also invariably a named defendent in such suits.
Justitia said- LOL! Adam, you are retired, and clearly have way too much time on your hands and spend way too much of it on this DB!
Which only begs the question: I'm retired, after a quite successful career (free of malpractice suits, although many of my colleagues have been sued; I've enjoy past relationships with those who are MD/JDs). So what's your excuse for posting here?
Most lawyers don't wile away business hours flaunting their legal expertise on the internetz for free vs billing clients for chargable hours?
Hopefully you're not one of those people who didn't perform their due diligence by looking into the job prospects of their chosen profession BEFORE enrolling in law school? I see some recent graduates are even suing their law schools for failing to notify them of how bad the job climate actually is in the legal profession?
http://articles.latimes.com/2013/apr/01/local/la-me-law-grads-20130402
BTW, if you can't find work as a lawyer, you might consider writing for the WT, since you show a real aptitude for 'cherry-picking', right up there with the best of them!
You even insist on doing it over and over, ignoring the sentence which immediately followed:
In most cases, a judge has to be convinced (or at the very least, a hospital panel of bioethicists are consulted, and are generally NOT the same people involved in providing care to the patient, precisely to avoid any appearance of impropriety or conflict of interest).
Of course, my words above undermine your repeated attempts at straw-manning, since they only disprove your claim of some widespread trend amongst physicians to play the role of God on their own (ALA Kevorkian), since the facts I've presented would prove that if they did so, they're clearly overstepping the bounds of their scope of practice which is limited by State law, and risking being sued for wrongful death. Although I've never undergone the process, I suspect the nightmare prospect of a civil suit is enough disencentive for MOST providers to prevent them from "going rogue".
Simon said-
I think it's a tough line to draw ... the medical staff should no doubt have a huge amount of input but ultimately I think the decision would be safer if made by someone else because it is a LEGAL decision and not a MEDICAL one.
True, and as I've pointed out above, the practice of medicine is defined primarliy by TWO forces: statuatory limits (State law), as well as the medical community's 'standard of care' (the consensus opinion that may exist within the medical community, where a discussion then commences over what the "community" is: is it the opinion of providers at the local, State, National, or International level?).
Ideally the State laws would be updated to stay in-sync the current opinion of providers who ideally would follow the latest findings found in professional journals, etc, since providers are generally more up-to-date on current treatment modalities, developments in their field, etc than the State legislators ever could be. Oftentimes, the providers themselves have to lead the way to get State legislators to update the laws, acting via their professional organizations (eg the California Medical Association, or on the National level, the American Medical Assocation plays that role). Many such professional organizations will actually write the prospective bills, serving as the special-interest groups who battle it out.
So what Justitia described as "mission creep" above is simply "the way it's always been", i.e. one doctor is making an appeal to his colleagues in print as to why he feels the community standard should change on a certain issue; even better, they'd push for an update in State and Federal laws to legalize a certain standard used in practice. It's not "mission creep", but simply how the practice of medicine interacts with the law, and how the system works (although it might new to Justitia).
Adam
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wallsofjericho
I would presume that the story is true with the omission that the hospital did in fact step in, forced treatment and yet the child died anyway.
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Justitia Themis
One of my former health law professors just emailed me this news article. It is interesting because the AAP previously adopted a presumption against judicial review, concluding it appropriate only when “clearly required by law” or when the parties cannot agree. American Academy of Pediatrics, Committee on Bioethics, Guidelines On Forgoing Life-Sustaining Medical Treatment, 93 Pediatrics 532 (1994).
http://www.chicagotribune.com/health/sns-rt-us-religion-kids-20131027,0,5584396.story?track=rss
NEW YORK (Reuters Health) - Pediatricians and child abuse agencies should step in when parents' religious beliefs keep kids from getting necessary medical care, doctors said Monday.
In a policy statement, the American Academy of Pediatrics Committee on Bioethics also said states should repeal any exemptions to child abuse and neglect laws.
Those exemptions mean some states don't always consider parents negligent if they forgo medical treatment for a child because of their religious beliefs.
Finally, the committee said public healthcare funding should not be used for religious or spiritual healing.
That would mean Medicare and Medicaid would no longer cover services at Christian Science sanatoriums, for instance. People with government-funded insurance could still get care at hospitals run by religious groups.
"I think it's important that all children get appropriate medical care, that state policies should be clear about the obligations to provide this care and that state monies directed toward medical care should be used for established and effective therapies," said Dr. Armand Antommaria.
Antommaria directs the Ethics Center at Cincinnati Children's Hospital Medical Center in Ohio and is one of the lead authors of the statement.
He told Reuters Health that cases of parents refusing medical care for their child due to their religious beliefs persist.
People of certain faiths, including many Christian Scientists, advocate prayer before or instead of medical treatments when a person is ill. Jehovah's Witnesses do not accept blood transfusions.
Parents have the right to weigh the risks and benefits of possible treatments and make medical choices for their children, the Committee writes in the journal Pediatrics. But that's no longer the case if their choices rise to the level of medical neglect and abuse.
"The main considerations would be whether the lack of medical treatment would cause death or serious disability," and whether good treatment is available, Antommaria said.
In one recent case, an Ohio court ruled that a hospital could force a 10-year-old Amish girl with leukemia to resume chemotherapy. Her parents had decided to forgo the treatment in favor of "natural medicines." The family had been told the girl had an 85 percent chance of survival with treatment but would die within the year if she did not receive it (see Reuters story of October 7, 2013, here: http://reut.rs/1fesZct).
That part of the committee statement reiterates an earlier policy, Antommaria said. So does the recommendation that states overturn religious exemptions to child abuse laws.
What is new is the call for government-run insurance not to cover unproven spiritual and religious therapies. Those include services provided at sanatoriums and other religious nonmedical health care institutions, as the Committee calls them.
"Part of it is the issue of, if the public funds are going to be used for medical care, they should be used for established effective therapies," Antommaria said. "These other uses aren't appropriate (based on) that criteria."
When it comes to public funding for health services, "The question would be, not so much whether they are science-based or faith-based, but whether they work," Dr. John Lantos said.
He is director of the Children's Mercy Bioethics Center at Children's Mercy Hospital in Kansas City, Missouri, and was not involved in the new recommendations.
"There are some complementary and alternative treatments that work and therefore ought to be covered, I think," Lantos told Reuters Health.
"There are others that have never been shown to work." He said Medicare and Medicaid should not cover any service until it has been rigorously evaluated.
Antommaria said government coverage for religious nonmedical institutions could also be seen as unfair. That's because people may get services there like custodial care that aren't available to Medicare and Medicaid patients at medical facilities.
A spokesperson for The First Church of Christ, Scientist said the organization had no comment on the statement.
SOURCE: bit.ly/cxXOG Pediatrics, online October 28, 2013. -
adamah
Justitia said-
It is interesting because the AAP previously adopted a presumption against judicial review, concluding it appropriate only when “clearly required by law” or when the parties cannot agree. American Academy of Pediatrics, Committee on Bioethics, Guidelines On Forgoing Life-Sustaining Medical Treatment, 93 Pediatrics 532 (1994).
The statement above is from one professional association that represents the interests of pediatricians, a specialty within medicine. Like many other outfits, the organization offers board certification, and can issue recommendations (i.e. clinical practice guidelines) which can be presented in court in a med-mal suit to serve as a possible source for defining the 'standard of care'.
Of course, the doc in the DL case had overstepped his WA statutory limits, and he became a "cowboy doc" (the pejorative term for docs who treat conditions well over their skills and training, boldly treating when any other provider would've long ago referred to the appropriate specialist. The term also refers to docs who ignore statutory limits imposed by their State laws). As in the DL case, the doc not only ignored state law, he also ignored the advisory bioethics board recommendation that DL not receive a BT for as long as possible. But apparently no one in the decision-making chain understood that NOTHING SHORT of seeking a court order would be acceptable to resolve the dilemma.
AAP's statement above confirms the point that when treating JW minors, it's a waste of time to dick around with bioethics panels (and the touchy-feely concerns over not wanting to violate the rights of what may be a "mature minor", etc), since anything short of seeking a court order is not going to save the life of a JW minor. But even more importantly, anything other THAN a court order fails to provide the JW the plausible deniability that 'Caesar's law' would afford.
That factor should (in theory) make the JW minor cooperate with required treatment, since they should understand that they've been 'let off the hook' and are now allowed to accept a life-saving BT without the fear of shunning, since 'Caesar' is taking the blame.
But in matters of life or death, NOTHING SHORT of a court order is going to suffice for a JW (and paradoxically would also keep such potential med-mal situations from arising out these JW cases, in the first place).
There's a lot of moving parts in these situations, and hence why it's near-impossible to come up with a 'one-size-fits-all' take-home message that applies for all jurisdictions, but if that statement above (in red) isn't.....
Adam
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Justitia Themis
Of course, the doc in the DL case had overstepped his WA statutory limits, and he became a "cowboy doc" . . . The term also refers to docs who ignore statutory limits imposed by their State laws
While I clearly disagree with the treating physician's decision, I disagree too with your characterization of him as a "cowboy doc." He acted within AAP guidelines since all parties agreed to not transfuse, and the presumption is to seek a court order only when there is disagreement among the parties.
In addition, multiple other pediatric oncologists agreed with his decision. Hence, if he were misinterpreting his legal duties, so were the other pediatric oncologists. While theoretically, the natural parents could have attempted a med. mal claim, it is doubtful they could have prevailed. Especially since, once found and notified, they supported the no-blood stance until just days before the minor died, despite their being ex-JW druggies.
After speaking with members of the treating team, listening to the doctor's testimony, and reviewing the chart notes, and writing a law school paper that reviewed the legal issues in this case, I (and my very accomplished professors) are convinced that he acted legally, seeking the best interest of his patient.
Additionally, while this case generated a fair amount of ethical review and commentary, it did not spark legal review.
As I have very publicly noted, I disagree with his position, but I see no need to besmirch the doctor's reputation by claiming he acted illegally. It is also uncomfortably close to professional defamation and libel, Mr. Perez.
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adamah
Justitia said-
While I clearly disagree with the treating physician's decision.....
Hold on: that's a statement you NEVER made during the presentation, so can you please elaborate?
WHAT SPECIFIC DECISION(S) of the treating physician do you "clearly disagree with"?
Feel free to pick from one (or more) of the options below:
1. The decision to ignore controlling statutory law (RCW 26.28.010) which he agreed to abide by, when he requested to be licensed in WA State?
(That's the law which requires docs to determine that pts are at least 18 before treating (and certainly in medical facilities involving the pt making a life-or-death decision)?
2. The decision to consider that the "mature minor ruling" (a WA Supreme Court decision * arising from a case 50 yrs ago) had ANY particular relevance to DL's situation, since the fact profiles were significantly different (as you know, the Smith decision involved a minor's right to exercise control over reproductive rights; it wasn't a 'life or death' decision, as for DL)?
* (As you know, the 1967 case of Smith v. Seibly was filed by Albert G. Smith, the appelant, after a vasectomy was performed upon him by the respondent, Walter W. Seibly, a physician. At the time of the operation, the appellant was 18 years old (the age of consent in WA state was 21 at that time), married, and the father of a child. Smith was gainfully employed, supported his family, and maintained a home for himself, his wife and child.
Smith was afflicted with a progressive muscular disease (myasthenia gravis) which is chronic, incurable, and would possibly affect his future earning capacity and ability to support his family. Under these circumstances he and his wife decided to limit their family by having appellant sterilized (an irreversible procedure), and the doctor performed the procedure after Smith signed consent (although he was under-age).
Afterwards, Smith divorced, and decided to sue the doctor for performing the operation, claiming that even though he signed a consent to treatment, the doctor shouldn't have granted him the right to do so, since he was a minor (18, i.e. still under 21).
Smith's claim was denied, since the judge ruled Smith was sufficiently intelligent, educated and knowledgeable to make a legally-binding decision to exercise his reproductive rights; further, Smith was 1) married, 2) independent of parental control 3) and provided his own financial support (he had a job and supported his family.)
Of course, DL was a 14 y.o. dependent on his guardian for both physical well-being and emotional needs.
Of course, a case like DL's would have to be heard by WA Supreme Court to have equal weight to expand the applicability of the "mature minor" doctrine to similar cases, since the fact patterns of the two cases are, in your words, "totally different".
Regardless, you don't have to be a lawyer to see how relying on the Smith ruling to support a defense in the DL case would be extremely-risky, since it's comparing 'apples v oranges'. The hospital admin likely didn't want to expose his organization to a lengthy and costly court battle, with the risk of being hit with a massive adverse judgment.
Of course, current WA State Public Health policy also doesn't include such 'life or death' situations as being applicable to the "mature minor ruling" (i.e. the Smith case).
http://www.kingcounty.gov/healthservices/health/personal/famplan/providers/matureminor.aspx
3. Was it the decision to seek out the opinions of his colleagues, in an attempt to create a local "community standard of care", as a possible defense?
4. Was it the decision to rely on the AAP "clinical guidelines", as a possible defense?
(BTW, ALL clinical guidelines I've seen published by professional associations contain a disclaimer to check applicable local laws BEFORE following their recommendations: that's exactly WHY they're called "guidelines", and not "LAWS". The differences existing amongst in various State laws is wide and ever-changing, making it foolish to assume they ARE applicable to all.)
5. Or was it the decision the doc made when he may have realized he ignored his primary obligation to his patient to act in his best interests by allowing a minor to give consent to die? Or when the doc decided to shift from the recommendations of the bioethics committee by refusing to "delay transfusion as long as possible", and instead shifting to comfort care, only? Or the decision to place a DNR (do not rescuscitate) order in DL's EMR (electronic medical records)? All point towards decisions to delay seeking a court order before the pt's condition had deteriorated, and he slipped into unconsciousness/coma, well past the point of return).
6. Or was it something else I overlooked? If so, feel free to explain WHY you disagree with the physician's decision, since you admit above that you actually disagree.
Justitia said- I disagree too with your characterization of him as a "cowboy doc." He acted within AAP guidelines since all parties agreed to not transfuse, and the presumption is to seek a court order only when there is disagreement among the parties.
You certainly understand 'controlling law'? Simple question, then.
Which one trumps:
Applicable statutory law (which a provider agrees to follow when the State grants them a LICENSE to practice), or,
The "guidelines" of a professional organization?
I defined what actions in my opinion warrant the term, "cowboy doc": exceeding one's applicable statute(s). If the (cowboy) boot fits...
Justitia said- In addition, multiple other pediatric oncologists agreed with his decision. Hence, if he were misinterpreting his legal duties, so were the other pediatric oncologists.
Perhaps you're unaware of a phenomenon wherein large groups of people are known to make poor decisions by influencing the others? Eg, there's a certain large group with 7 million members who ALL believe God doesn't want them to eat blood!?! Docs are human, not perfect, and sometimes make mistakes, and exhibit the same tendency of group-think.
Your line of reasoning above is an 'appeal to popularity', when in most cases, the only appeal that matters is that of statutory LAW (AKA an appeal to authority); any deviation from statutory laws triggers the provider to search for fallback defenses. Exceeding one's scope of practice unnecessarily exposes docs to needing to defend their violation of statuory law against lawsuits, licensing boards, etc.
Justitia said-While theoretically, the natural parents could have attempted a med. mal claim, it is doubtful they could have prevailed.
Yeah, and as I pointed out above, that's partly BECAUSE the judge issued a last-minute ruling, only hours before the boy died, which decreased the chances of prevailing in a claim. The judge in effect sent an early Valentine's Day gift to the doc/hospital, bailing them out of a tight squeeze, since prevailing in a prospective med-mal case was made considerably more problematic after the ruling (water under the bridge now, as the statute of limitations for filing has likely run out long-since).
Justitia said- Especially since, once found and notified, they supported the no-blood stance until just days before the minor died, despite their being ex-JW druggies.
That statement doesn't comport with what the father told reporters, in this Seattle PI article:
Both parents say they have completed drug treatment programs and are sober. They last saw their son in September when he and Mincin visited Boise.
Since his diagnosis, though, access to information about their son's condition has been restricted. Their only updates had been through the now-defunct Web site profile, which is how they learned about the blood transfusion debate. They contacted Child Protective Services , who appointed a lawyer to each of them and paid to fly the couple to Seattle Tuesday to attend the first hearing.
"My feelings have run the gamut from anger to tears not knowing who to believe and not to believe," said Lindberg Sr. "My sister has done a good job of raising him for the past four years, but her religious beliefs shouldn't be imposed on my son."
He said not having his son for the past four years weighs heavily on him. He said they gave the boy to his sister so he didn't suffer while they were getting their lives back on track.
"The decision would have been different had he been with us," he said. "He'd live through this treatment had we not made the decisions we made."
The father explained WHY he didn't fight the judge's adverse ruling:
Lindberg Sr. said Wednesday's ruling shocked him, but after visiting his son later in the day, he decided not to appeal the judge's decision.
He said doctors told him earlier Wednesday evening that the teenager, who had been unconscious since Tuesday, likely had suffered brain damage. After learning of his son's death, the father did not want to comment further.
"We'll stay in town until the funeral," he said, "then we'll go back to Boise."
Justitia said- After speaking with members of the treating team, listening to the doctor's testimony, and reviewing the chart notes, and writing a law school paper that reviewed the legal issues in this case, I (and my very accomplished professors) are convinced that he acted legally, seeking the best interest of his patient.
Sure, if one is willing to overlook that seemingly-applicable and pesky bit of controlling statutory law (RCW 26.28.010), and then call sweeping it aside as "acting legally".
Justitia said-Additionally, while this case generated a fair amount of ethical review and commentary, it did not spark legal review.
Yeah, I ran a red light earlier today (in violation of the State Vehicle Code) but I didn't get a ticket, and the act didn't spark a legal review, even though it happened in public! Therefore, running red lights MUST be legal now!
Certainly you understand that not having to defend one's actions before the State Medical Board and/or defending oneself in a wrongful death lawsuit for negligence doesn't imply the act was "legal"?
Justitia said-As I have very publicly noted, I disagree with his position, but I see no need to besmirch the doctor's reputation by claiming he acted illegally.
Who claimed "he acted illegally" again? That's a CONCLUSION, one that would require a legal RULING. I'm not a court judge, and neither are you (and paradoxically, neither was DL's doc, which is kinda the point here).
Need I remind you that the video you linked features you telling the audience that WA law doesn't contain a "mature minor" exception (and certainly you, of all people, understand how the "mature minor" ruling effects common law, NOT statutory law). YOU indicated this doc exceeded his scope of practice, since the age of consent is SET by statute, since the entire presentation was about how the team decided to "look the other way" from State statutory law to allow him to die.
You also said the bioethics committee recommended BT, since DL "did not retain a steadfastness for refusal"; the recommendation was to, in your own words, "hold off, as long as possible". The MD who presented characterized it as a "compromise Tx plan", with chemo, Fe, EPO, with the decision made, "for the time being, to hold off on BT."
Per YOU, the attending doc set a deadline for transfusion "the next day", and the doc told the aunt she "could seek a court injunction (to prevent it), if she wanted to". You said the deadline passed, but no BT was given.
Instead, the doc sought the opinions of oncologists, who all agreed that to treat this minor without his consent was wrong (i.e. they all decided that pesky statutory laws didn't apply to them, and they granted him de-facto "mature minor" status, as if they had the autority to made a legal RULING on the matter, when they aren't licensed by the State to make legal 'rulings', but are expected to exercise sound judgment and follow the decision-making in legal matters which had best be defensible, where some decisions are more defensible than others). The doc decided upon the 'transfusion trigger' being onset of CHF (congestive heart failure).
Then as DL's condition deteriorated, a DNR (do not resuscitate) order magically appeared in his EMR (electronic medical records), and the hem-onc team and others decided that changing to comfort care was most appropriate. ALL were in essence rulings (decisions) that they didn't actually have any legal authority to make, since ALL actions surpassed their practice privileges: ALL subsequent decisions are questionable, since they stemmed from a de-facto ruling granting "mature minor" status.
You even asked in the video, "Is that the legal standard in WA State? Because the judge did not think so, because when the attorney for the young man (DL) was speaking, and going off on his argument on (DL's) first amendment rights, the judge flat-out interrupted him and said, "He's not 18: he can't consent. How do you get around this?", and there never really was an answer (from the attorney)". You also admitted, "Yes, we do have the mature minor doctine, but it has NEVER been adopted in WA State."
You KNOW the answers to the question you asked, since a conservative approach is to follow statutory law (and I could draw a Venn diagram, if it would help?), and docs ONLY push the boundaries of care on a case-by-case basis, where the decision to exceed scope of care is done ONLY in those cases where it would benefit the pt (eg using a newer, more-effective AB which although it's known to have broader activity, isn't yet on the 'approved for use' list). But to push boundaries of the law, where the pt dies? That's dangerous, as this case demonstrates.
Justitia said-It is also uncomfortably close to professional defamation and libel, Mr. Perez.
As with your concept of suing for damages that "almost happened", I'm sure you'll be happy to let everyone know when you think they've crossed that line, since we've all seen how you like to remind everyone that:
http://www.youtube.com/watch?v=rX8oPjPU5x8
As you pointed out in the video, your opinion is that the decision to seek a court order constitutes the RIGHT answer; advice which, not surprisingly, comports with State law.
Anyway, most providers understand the best way to defend a med-mal suit is not to end up in one, in the first place, by practicing within the statutory parameters of professional practice that the State delineates.
Based on the evidence presented in the video, the peds doc didn't do that: that suggests the doc being a 'cowboy' (at least, in the court of public opinion, or in the opinion of his more-conservative colleagues, or, even lil' ol' me. Oh, and NOTE the phrase, 'MY OPINION'. If it's not clear, this IS a public forum for discussing such matters, and the airing of opinions).
But I'm sure with Valentine's Day fast appoaching, those unknown doc(s) who you've alleged I've 'nearly defamed' would appreciate your efforts to file a defamation suit on their behalf (although my State has a nice anti-SLAPP law to discourage those who'd engage in "abuse of process" to stifle the free speech rights of others). If nothing else, it would entertaining just to watch someone having to overcome their own testimony on video (AKA watching someone argue with themself).
Adam
PS here's the story of the grandmother of DL, who stormed into a KH in FL during a meeting and shouted:
"You are all murderers," she remembers saying.
The Jehovah's Witnesses were shocked. She looked "boiling mad," remembers Frances Boyne, 76, who was there that day. The Jehovah's Witnesses were familiar with Dennis' case. They told her it had been Dennis' choice to refuse the blood.
Olga addressed a group of children, the eldest about 6. "You and you and you and you," she said, pointing to them and then to the adults in the sanctuary. "If you ever get sick, they are going to let you die."
http://www.sptimes.com/2008/02/24/Life/Woman_can_t_let_grand.shtml
It's a 'don't-miss' read, if anyone's actually still reading this thread....
Oh Justitia, maybe you'd like to sue Olga for defaming those JWs as 'murderers'? Grandma Olga doesn't have a leg to stand on, in her defense!
Adam