In the Jan.-Feb. Hastings Center Report [full text free], Sandra Johnson explains how it is not so much the law that "forces" clinicians to provide futile treatment, as much as "private organizational structures."
The law, she argues, operates in a "practice context" in which "organizational policies . . . [are] designed to put a safe distance between the organization and legal risk." In short, Johnson argues that it is often not the law that makes clinicians do "bad things." Instead, it is the "excessive private enforcement" from overly risk averse organizational policies.
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Sign in nowThere appears to be no such thing as FUTILE OUTPATIENT care --apparently, because the AMA and all of the for-profit providers didn't want to be put under the Congresssional 1991 PSDA mandate and be mandated to talk about end-of- life treatment issues with outpatients. This would have resulted in patient self-rationing and ultimately have affected profits negatively. Additionally, the burden of legal "informed consent" for the "end of-life" OUTPATIENT treatment would have created an expensive legal burden that would also impact the PROFITS of the suppliers.
HOWEVER, it appears that always the law deems that the patient (or the legal surrogate) has a right to agree or disagree that the INPATIENT treatment is futile.
The unilateral/secret DNRs are not legal and are certainly a crime or a tort and either a "criminal" or a "civil" rights violation.---in my opinion. Unless, of course, the courts rule in the favor of the hospital.
The autonomy (the liberty rights and the due process rights) of the competent patient are protected and hospitals cannot remove this autonomy through hospital policy and protocol.
When hospitals are punished/penalized under the Acute Inpatient Prospective Payment system and not reimbursed for the care of elderly Medicare patients, they develop policy to send these elderly Medicare patients off earlier rather than later to protect their bottom lines.
Certainly the bioethicists must know this but they refuse to recognize that The Deficit Reduction Act of 2005 (DRA) is ad hoc discrimination against the elderly on Medicare/Medicaid.
The law Sandra Johnson talks about is often circumvented under current hospital policies because ----probably throughout the country -- there has been no case law made in the courts that concerns "oral" unilateral/secret DNR/DNIs placed in hospital charts of old Medicare/Medicaid patients.
What survivor of an old Medicare/Medicaid patient would ever ask to look in the hospital chart to discover the unilateral/secret DNR?
How many elderly patients have ever heard of "futility concerns?" How many elderly patients understand the concept of palliative care and Hospice Care which is intended to encourage elderly patients to die sooner rather than later OUT OF THE HOSPITAL to save "end-of-life" costs for the private insurers and their partner, the government.
If enough elderly people went to The University of Google and discovered how The Congress has sold them out, maybe the bioethicists would get smarter?