Among the most significant findings of SUPPORT was that 50% of ICU patients suffered from moderate to severe pain during the last days of life. At the time of its publication late in 1995, SUPPORT was merely the latest in a long series of articles in the medical literature documenting the widespread and significant undertreatment of pain, beginning with a 1973 study of hospital inpatients. Much has been written about the phenomenon of undertreated pain and inadequate care of patients at (...) the end of life, and many positive suggestions for reform of clinical education and clinical practice have been iterated and reiterated in the two decades separating the studies. Proposals for modifying clinician behaviors in this aspect of patient care have tended to focus on particular barriers to effective pain management and palliative care. (shrink)

The concept of person is integral to bioethical discourse because persons are the proper subject of the moral domain. Nevertheless, the concept of person has played no role in the prevailing formulation of human death because of a purported lack of consensus concerning the essential attributes of a person. Beginning with John Locke's fundamental proposition that person is a ‘forensic term’, I argue that in Western society we do have a consensus on at least one necessary condition for personhood, and (...) that is the capacity for conscious experience. When we consider the whole brain formulation of death, and the most prominent defense of it by the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, we can readily identify the flaws that grow out of the failure to define human death as the permanent loss of the capacity for conscious experience. Most fundamental among these flaws is a definition of human death that reduces persons to the capacity of the brain to regulate purely physiological functioning. Such a formulation would, in theory, apply to any member of the animal kingdom. I suggest that an appropriate concept of death should capture what it is about a particular living being that is so essential to it that the permanent loss of that thing constitutes death. What is essential to being a human being is living the life of a person, which derives from the capacity for conscious experience. (shrink)

Abstract:The specialty of psychiatry has a long-standing, virtually monolithic view that a desire to die, even a desire for a hastened death among the terminally ill, is a manifestation of mental illness. Recently, psychiatry has made significant inroads into hospice and palliative care, and in doing so brings with it the conviction that dying patients who seek to end their suffering by asserting control over the time and manner of their inevitable death should be provided with psychotherapeutic measures rather than (...) having their expressed wishes respected as though their desire for an earlier death were the rational choice of someone with decisional capacity. This article reviews and critiques this approach from the perspective of recent clinical data indicating that patients who secure and utilize a lethal prescription are generally exercising an autonomous choice unencumbered by clinical depression or other forms of incapacitating mental illness. (shrink)

Abstract:Recently the scope of protections afforded those healthcare professionals and institutions that refuse to provide certain interventions on the grounds of conscience have expanded, in some instances insulating providers (institutional and individual) from any liability or sanction for harms that patients experience as a result. With the exponential increase in the penetration of Catholic-affiliated healthcare across the country, physicians and nurses who are not practicing Catholics are nevertheless required to execute documents pledging to conform their patient care to the Ethical (...) and Religious Directives for Health Care Services as a condition of employment or medical staff privileges. In some instances, doing so may result in patient morbidity or mortality or violate professional standards for respecting advance directives or surrogate decisionmaking. This article challenges the ethical propriety of such institutional mandates and argues that legal protections for conscientious refusal must provide redress for patients who are harmed by care that falls below the prevailing clinical standards. (shrink)

In the mid to late 1980s a debate arose over the moral and legal authority of advance medical directives. At the center of this debate were two point-counterpoint law journal articles by Rebecca Dresser and Nancy Rhoden. What appeared to have the makings of an ongoing critical dialogue ended with the untimely death of Nancy Rhoden. Rebecca Dresser, however, has continued her challenge of advance directives in numerous publications, most recently in a critique of Ronald Dworkin's Life's Dominion. Like Rhoden, (...) Dworkin has been a staunch advocate of advance directives as an exercise of what has come to be referred to as prospective or precedent autonomy. In this paper I will consider a number of the issues that Dresser has repeatedly raised about the infirmities of advance directives, and suggest that it is from an understanding of and appreciation for the narrative dimension of the life of a person that advanced directives draw one of their most powerful justifications. (shrink)

In a recent special supplement to the Hastings Center Report entitled “Improving End-of-Life Care—Why Has It Been So Difficult?” Robert Burt wrote the following in an essay ominously entitled “The End of Autonomy”: No one should be socially authorized to engage in conduct that directly, purposefully, and unambiguously inflicts death, whether on another person or on oneself. Decisions that indirectly lead to death should be acted upon only after a consensus is reached among many people. No single individual should be (...) socially authorized to exercise exclusive control over decisions that might lead to death, whether that individual is the dying person, the attending physician, or a family member acting as health care proxy. (shrink)

Until quite recently bioethicists have had little of depth and probity to say about the duty of healthcare professionals in general and physicians in particular to relieve pain and suffering associated with disease and/or its treatment.

Prognostication, the process offormulating and communicating a prognosis, isno longer considered by most physicians to bean essential task in caring for patients withserious illness. Because of this fact, it isnot surprising to find that when physiciansattempt to engage in prognostication, they doit poorly. What may be surprising to thoseoutside the medical community is the extent towhich professional norms have developed whichactively discourage physicians from engaging inprognostication. This article explores thecauses of this state of affairs and thejustifications offered for it. The (...) conclusionis reached that physicians have a professionalresponsibility to competently engage inprognostication based upon the doctrine ofinformed consent, and that a failure or refusalto do so has not only potential legalramifications, but serious negativeimplications for many of the core issues inbioethics, such as the use of advancedirectives, palliative medicine, and medicalfutility. (shrink)

Charles Dickens began one of his many great works of literature with this seemingly paradoxical, self-contradictory statement. Reflecting on a jury verdict in Northern California in June of 2001, in the context of what has transpired during the decade of the 1990s with regard to the care of dying patients, observations in the genre of Dickens come readily to mind. In 1991, two of the most compelling books on the subject of pain, medicine, and society were published: Eric Cassell's The (...) Nature of Suffering and the Goals of Medicine and David Morris's The Culture of Pain. Both works unflinchingly recognized and explored the implications of the vast clinical literature documenting the failure of modern medicine to respond compassionately and effectively to what had by then become an epidemic of undertreated pain. (shrink)

When one considers the protracted and continuing struggle of the citizens of Oregon to include physician-assisted suicide among the panoply of measures available to dying patients and the physicians who care for them, the depth and breadth of the issue becomes inescapable. The potential intractability of the dispute is illustrated by the very fact, noted in the preceding parenthetical phrase, that consensus eludes us on even the most basic of semantic points—how we are to most aptly characterize the conduct in (...) question? The case featured in this issue's The Caduceus in Court must be examined as the latest battle in a long war of attrition waged by opponents of physician-assisted suicide against the Oregon Death with Dignity Act. After briefly reviewing that history, I will then consider the details of Oregon v. Ashcroft and the implications of the litigation not only for the care of dying patients but also for the regulation of medical practice in the United States and, more broadly still, the search for resolution of serious medical disputes in a democratic society. (shrink)

In the mid to late 1980s a debate arose over the moral and legal authority of advance medical directives. At the center of this debate were two point-counterpoint law journal articles by Rebecca Dresser and Nancy Rhoden. What appeared to have the makings of an ongoing critical dialogue ended with the untimely death of Nancy Rhoden. Rebecca Dresser, however, has continued her challenge of advance directives in numerous publications, most recently in a critique of Ronald Dworkin's Life's Dominion. Like Rhoden, (...) Dworkin has been a staunch advocate of advance directives as an exercise of what has come to be referred to as prospective or precedent autonomy. In this paper I will consider a number of the issues that Dresser has repeatedly raised about the infirmities of advance directives, and suggest that it is from an understanding of and appreciation for the narrative dimension of the life of a person that advanced directives draw one of their most powerful justifications. (shrink)

Abstract:Recent contributions to the medical literature have raised yet again the issue of whether the term “terminal” is an intelligible one and whether there is a consensus view of its meaning that is sufficient to justify or even require its use in discussing end-of-life care and treatment options with patients. Following a review of the history and development of informed consent, persistent problems with the communication of prognosis and the breaking of bad news are analyzed. The author argues that candid (...) but compassionate communication between physicians and patients about prognosis is essential to informed decisions about both disease-directed (curative) and palliative therapies. (shrink)

In the regime of Anglo-American tort law, every person has a responsibility to comport him- or herself with “due care” in going about day-to-day activities so as not to imperil the health, safety, or general welfare of others. The gold standard for determining what constitutes due care in any particular situation is what a reasonable person, similarly situated, would do. Determinations of due care are necessarily fact specific. Nevertheless, the general objective is to strike an appropriate balance between an unrealistically (...) high standard of caution and one that fails to take into account the known or foreseeable risks of any human endeavor. The same standard applies to individuals regardless of their age, gender, race, and level of education or economic status. The standard also applies to fictional “persons” such as corporations. The usual or prevailing custom and practice in an industry or occupation may provide relevant evidence of what constitutes “due care” in the activities common to it, but that evidence can be effectively overcome or rebutted by competent, credible evidence that the custom and practice either diverges from what it has been asserted to be or that the custom and practice is itself unsafe or otherwise poses an unreasonable risk of harm to others. Until quite recently, a singular exception to this general principle of tort law was made for the medical profession. We will consider this exception in the next section. (shrink)

A decision by the Supreme Court of California in the case Conservatorship of Wendland, issued in August 2001, forces us once again to confront the all-too-common situation in which an individual has, on multiple occasions, expressed strongly held personal convictions about life-sustaining interventions but failed to incorporate those convictions into a formal advance directive. Many courts have recognized that lay citizens do not consistently resort to written legal formalities in their day-to-day lives, and reasonable accommodation must be made to this (...) fundamental fact about human nature. However, a small but apparently growing minority of courts adamantly insist on either formal written directives or prescience and prophetic precision on the part of the patient before a surrogate can direct the withdrawal of life-sustaining treatment. The chronology of cases that comprise this minority position in American medical jurisprudence raise important ethical issues. (shrink)

The American Journal of Bioethics, Volume 11, Issue 6, Page 52-53, June 2011.

(2013). Distinguishing Difficult Patients From Difficult Maladies. The American Journal of Bioethics: Vol. 13, No. 4, pp. 24-26. doi: 10.1080/15265161.2013.767957.

For over 20 years the medical literature has carefully documented the undertreatment of all types of pain by physicians. During this same period, as the field of bioethics came of age, the phenomenon of undertreated pain received almost no attention from the bioethics literature. This article takes bioethicists to task for failing to recognize the undertreatment of pain as a major ethical, and not merely a clinical, failing of the medical profession. The nature and extent of the problem of undertreated (...) pain is examined, as well as possible reasons for its disregard by bioethicists. The factors contributing to undertreated pain in the clinical setting are considered, as well as the hazards posed by recent failures to address ethically questionable clinical practices. Finally, suggestions are offered for refocusing the attention of bioethicists to this significant problem. (shrink)

Anyone with so much as a passing familiarity with bioethics knows how significantly and persistently the law has insinuated itself into healthcare and the process of bioethical decisionmaking. Viewed from the insular perspective of traditional medical practice and medical ethics, it is not surprising that the of the patientlimitshavoc” wreaked by law upon the landscape of medical practice, painted by a lawyer, stands in stark contrast to an earlier and much more sympathetic account offered by Columbia University historian and medical (...) humanities professor David J. Rothman in his 1991 book StrangersattheBedside, the informative subtitle of which is AHistoryofHowLawandBioethicsTransformedMedicalDecisionMaking. (shrink)

In his professional life, Richard Posner is addressed as inasmuch as he is Chief Judge of the U.S. Court of Appeals for the Seventh Circuit. He is also a senior lecturer at the University of Chicago Law School. Finally, he is a prolific author of books and articles in scholarly journals in which he expounds at length and with copious footnotes his particular views of jurisprudence and public policy. One of his frequent intellectual adversaries, legal philosopher Ronald Dworkin, wryly described (...) Judge Posner as. (shrink)

In his professional life, Richard Posner is addressed as “Your Honor,” inasmuch as he is Chief Judge of the U.S. Court of Appeals for the Seventh Circuit. He is also a senior lecturer at the University of Chicago Law School. Finally, he is a prolific author of books and articles in scholarly journals in which he expounds at length and with copious footnotes his particular views of jurisprudence and public policy. One of his frequent intellectual adversaries, legal philosopher Ronald Dworkin, (...) wryly described Judge Posner as “the lazy judge who writes a book before breakfast, decides several cases before noon, teaches all afternoon at the Chicago Law School, and performs brain surgery after dinner.”. (shrink)