by Cina, Joshua A. Perper, Stephen J. ; Cina, Joshua A. Perper, Stephen J.
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meaningless unless her father could exercise it on her behalf. Central to the Court’s decision was its belief that Quinlan’s father was of “high character” and very “sincere, moral, ethical, and religious.” The Court rejected the defense team’s argument that a father’s grief and anguish would render him unable to make life-and-death decisions concerning his daughter. Karen’s physicians gradually weaned her from the respirator during May of 1976. Surprisingly, she continued to breathe on her own. Given this surprise her father chose not to terminate artificial nutrition and hydration. Karen lived another 9 years in a coma prior to her death in 1985. As a result of this case, ethics committees proliferated and a debate arose as to what should be the physician’s role in the discontinuation of life support. As we shall see, this issue had not been resolved even two decades later.
Terri Schiavo
While Karen Quinlan’s case engendered a great deal of public interest, it did not reach the mass media magnitude of the Terri Schiavo case. Beginning as the personal choice of a single family, it became a polarizing event involving the American public, the state of Florida, the United States Congress and Supreme Court, and the President himself. Theresa (Terri) Marie Schiavo was a 27 year-old Florida woman who collapsed in the hallway of her St. Petersburg apartment in the early morning of February 25, 1990. Her husband, Michael Schiavo, was with her when the incident occurred and he promptly dialed 911. By the time paramedics and firefighters arrived at the scene Terri was not breathing and had no pulse. The emergency medical team attempted to revive her and defibrillated her several times while transport-ing her to a local hospital. On admission, the medical examination and radiological studies did not reveal any trauma but she was comatose and her blood potassium level was very low at 2.0 mEq/L (the normal range for adults is 3.5–5.0 mEq/L).
Potassium is an element found in human cells which is essential to life. Low levels can cause sudden collapse and death due to an irregular heart rhythm or cardiac arrest. Schiavo remained comatose for 2½ months. When she emerged from the coma, Schiavo regained a sleep-wake cycle, but did not show awareness of herself or her surroundings. The sleep/wake cycle is an automatic function of the brain controlled by a light-sensitive biological “master clock” located in the hypothala-mus, a structure near the center of the brain. She was diagnosed as being in a persistent vegetative state with extensive damage to the higher brain structures (the parts of the mind that make us think and define “who we are”) due to a loss of oxygen to the brain during her cardiac arrest episodes.
Although the cause of Terri’s collapse was never definitively determined, a likely explanation was a severe electrolyte imbalance, namely hypokalemia.
Hypokalemia (low levels of serum potassium) can be induced by starvation diets as a result of poor food intake or by medications or drugs such as diuretics or caffeine that increase the elimination of potassium from the body. Published excerpts of Terri’s medical chart noted that “she apparently has been trying to keep her weight 170
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down with dieting by herself, drinking liquids most of the time during the day and drinking about 10–15 glasses of iced tea.” Iced tea is a mild diuretic that causes fluid loss. Some have suggested that the low potassium level detected upon her admission to the hospital could have been a spurious result caused by the intravas-cular administration of fluids during the attempt to resuscitate her resulting in dilu-tion of her blood. This is very unlikely because the concentrations of other chemicals in her blood, such as sodium and chloride, would also have been lowered and this was not the case.
It is uncertain whether Terri had bulimia. Bulimia nervosa is an eating disorder predominantly seen in young women consisting of cycles of eating large amounts of food in a short time followed by episodes of “purging.” The most common form of the disease practiced by more than 75% of people afflicted is self-induced vomiting although fasting, the use of laxatives, enemas, diuretics, and over-exercising are also common. Hypokalemia and other electrolyte abnormalities have been reported in association with bulimia. It should be noted that Terri Schiavo’s husband filed and won a malpractice suit against her obstetrician, Dr. Stephen Igel, on the basis that the physician failed to recognize and diagnose her with this eating disorder. In November 1992, a jury awarded Mr. Schiavo one million dollars.
For years after the collapse, Schiavo remained in a persistent comatose state.
She was initially fed by a nasogastric tube (a tube inserted in the stomach through one of the nostrils) and later on by a PEG tube (a tube entering the stomach directly through an incision in the abdominal wall). For the first 3 years after this tragedy her husband Michael and her parents, Robert and Mary Schindler, enjoyed an amicable relationship. That ended in 1993 and the parties literally stopped speaking to each other. In 1994, Michael Schiavo consulted with doctors and concluded that his wife would not recover and opted to authorize a “do-not-resuscitate (DNR) order” in case of a cardiac arrest. In 1998, 8 years after Terri’s collapse and several years after he had received the settlement money, Michael Schiavo petitioned the Pinellas County Circuit Court to remove her feeding tube. Terri’s parents opposed this arguing that she was still conscious. For the next 5 years a complex array of legal and political battles were to be fought between the husband and parents simply due to the absence of a Living Will which could have specified Terri’s wishes prior to her collapse. By March 2005, the Schiavo case had generated no less than 14 appeals and numerous motions, petitions, and hearings in the Florida courts; five suits in Federal District Court; and four denials of certiorari (to take the case for review from the lower courts) by the Supreme Court of the United States.
In 2001, the Court of Appeals appointed five board-certified neurologists to evaluate the case. Two were chosen by Schiavo’s parents, two by her husband, and one was to be selected by mutual agreement of the parties. The Schindler family selected Dr. William Maxfield (a radiologist) and Dr. William Hammesfahr (a neurologist); Michael Schiavo selected Dr. Ronald Cranford and Dr. Melvin Greer (both neurologists); and, because the parties failed to agree on a fifth, the court selected Dr. Peter Bambakidis (a neurologist). These five doctors examined Schiavo’s medical records, brain scans, videos, and Schiavo herself. Drs. Cranford, Terri Schiavo
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Greer, and Bambakidis testified that Schiavo was in a persistent vegetative based on imaging studies of her brain which showed massive loss of cerebral tissue and an EEG showing no cerebral cortical activity. In short, there was no evidence that she could think or that she ever would be able to again. Drs. Maxfield and Hammesfahr (selected by the Schindlers) testified that Terri was in a minimally conscious state and claimed that their personal methods of treatment might help the patient. Both PVS (persistent vegetative stress) and minimal consciousness are a result of severe brain injury but as the name indicates in the first there is no consciousness at all while in the latter there is a minimal degree of awareness. There is a slight difference in prognosis as well. Patients in a PVS almost never recover, while patients in a minimally conscious state have a very small chance of improvement but they never return to normal neurological function.
As part of the court-ordered medical examination of the patient, 6 hours of video of Terri Schiavo were taped and filed at the Pinellas County courthouse. The tape included Terri with her mother and neurologist William Hammesfahr. The entire tape was viewed by the Judge who wrote, [Terri Schiavo] “clearly does not consistently respond to her mother.” From that 6 hours of video, the Schindlers and their supporters produced six clips totaling almost 6 minutes and released them to public websites. Although Terri’s parents received a great deal of sympathy and backing from conservative political groups and large segments of the public, the Judge ruled that Terri was in a persistent vegetative state and was beyond hope of significant improvement. The Court was particularly critical of Dr. Hammesfahr’s testimony that
claimed positive results in similar cases following vasodilatation therapy, the efficacy of which could not be validated by scientific research. The Judge stated,
“He [Dr. Hammesfahr] testified that he has treated about 50 patients in the same or worse condition than Terri Schiavo since 1994 but he offered no names, no case studies, no videos and no test results to support his claim that he had success in all but one of them. If his therapy is as effective as he would lead this Court to believe, it is inconceivable that he would not produce clinical results of these patients he has treated. And surely the medical literature would be replete with this new, now patented, procedure.” Dr. Maxfield’s hyperbaric oxygen therapy suggestion did not fare much better with the Judge who observed that, “It is interesting to note the absence of any case studies since this therapy is not new and this condition has long been in the medical arena.” In short, the more credible medical evidence suggested that Terri would never recover and that her husband was free to have the feeding tube removed.
After another round of legal battles, Schiavo’s feeding tube was removed on October 15, 2003. Within a week, when the Schindlers’ final appeal was exhausted, the Florida Legislature hastily passed “Terri’s Law” giving Governor Jeb Bush the authority to intervene in the case. Bush immediately ordered the feeding tube rein-serted. Bush sent the Florida Department of Law Enforcement to remove Schiavo from hospice and transfer her to Morton Plant Rehabilitation Hospital in Clearwater where her feeding tube was surgically implanted by a physician. One could argue that the doctor committed battery when he touched the patient against her will and the wishes of her legal guardian. The emergency legislation also included the 172
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appointment of a guardian ad litem for Terri, Dr. Jay Wolfson, to “deduce and represent the best wishes and best interests” of Terri Schiavo and report them to Governor Bush. Michael Schiavo, backed by the American Civil Liberties Union (ACLU) and millions of others, opposed the Governor’s intervention in the Schiavo case. On May 5, 2004 the Honorable W. Douglas Baird, a Circuit Court Judge in Florida’s Sixth Circuit, found “Terri’s Law” unconstitutional and struck it down.
Governor Bush appealed this decision to the Second District Court of Appeals who sent it directly to Florida’s Supreme Court who confirmed that this law violated Terri’s Constitutional rights. Ultimately, the feeding tube was removed by a doctor in what can be construed as active euthanasia. Terri died at a Pinellas Park hospice facility on March 31, 2005 at the age of 41.
An autopsy performed by Dr. Jon R. Thogmartin substantiated the presence of severe brain atrophy. Her brain weighed half of what it should have and much of the cerebral cortex, the “thinking” part of the brain, had been destroyed. Dr. Thogmartin, the Medical Examiner, concluded that “Mrs. Schiavo suffered severe anoxic brain injury. The cause of which cannot be determined with reasonable medical certainty.
The manner of death will therefore be certified as undetermined.” Dr. Stephen J. Nelson, a neuropathology consultant and forensic pathologist, described microscopic changes in the brain consistent with a persistent vegetative state but warned that “neuropathology examination alone of the decedent’s brain – or any brain for that matter – cannot prove or disprove a diagnosis of persistent vegetative state or minimally conscious state.” We agree wholeheartedly. The only way a doctor can assess responsiveness is by observing the living patient.
What Is Right?
Like most people, physicians have strong opinions on assisted suicide and euthanasia.
Some endorse it as a final service to a patient while others condemn it as an affront to everything a doctor has sworn to uphold. Legitimate arguments can be made for both sides. When faced with these situations, the physician must ask, “Should I trust in my own judgment and knowledge of medicine to prolong this life or must I relinquish my power over life and death to a mere patient and respect their
‘free will’?” The answer should reflect how they would like to be treated if they were the patient.
Chapter 17
Malpractice or Murder?
Even top caliber hospitals cannot escape medical mistakes that sometimes result in irreparable damage to patients.
– Carl Levin
Seneca, a first century Roman philosopher, coined the popular adage, “To err is human (Errare humanum est).” Much lesser known is his follow-up sentence
“to persist is diabolical (perseverare diabolicum).” Most if not all doctors make mistakes some of which result in frank malpractice and litigation. After a physician has gone through the time, money, guilt, and remorse associated with a malpractice suit, he is unlikely to make the same mistake again. Of course, some doctors never learn.
Physicians are inundated by a barrage of technical data, emotional issues, signs and symptoms, treatment options, and concerned family members whenever they are faced with diagnosing and curing a serious illness. Unlike other professions, doctors are expected to get the right answer all of the time. If a lawyer won 90% of his cases, he would probably make partner in his firm in short order. If a quarterback completed 80% of his passes, he would be in the Pro Bowl. If a weatherman made accurate predictions 50% of the time he would be, well, a weatherman. But if a doctor killed one patient out of 100 he could lose his license and livelihood. In medicine, a 99% batting average isn’t good enough.
The Joint Commission on Accreditation of Health Care Organizations defines a medical error as “an unintended act, either of omission or commission, or an act that does not achieve its intended outcome.” This definition and others do not take into consideration the fact that medical errors could be at times a reflection of the imperfection of medical science. The individual practitioner may not have made an error at all yet the desired outcome or cure was not attained. Therefore, from a practical standpoint it is more appropriate to consider a medical error a deviation from the current standard of care.
J.A. Perper and S.J. Cina, When Doctors Kill: Who, Why, and How, 173
DOI 10.1007/978-1-4419-1369-2_17, © Springer Science+Business Media, LLC 2010
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The Current Problem
A 1984 Harvard study of more than 30,000 records from 51 randomly selected hospitals in New York found that adverse medical events occur in more than 3.7%
of admissions and that more than a quarter of these were due to medical negligence.
Close to 14% of the adverse medical events were fatal and 2.6% resulted in severe disability. When extrapolated to the 2.7 million patients discharged from New York hospitals that year about 13,450 people died and 2,550 were seriously injured.
A 1992 Colorado and Utah study of almost 15,000 randomly selected patients from 28 hospitals suggested that more than 44,000 Americans were expected to die yearly from medical errors. This estimate was confirmed in 1999 when The Institute of Medicine published “To Err is Human: Building a Safer Health Care System. ” This study estimated that there are about 44,000–98,000 medical error-induced deaths per year in the United States, more than the number of fatalities resulting from traffic accidents, AIDS or breast cancer. It has been argued that most of the current estimates of adverse medical events are underestimations as they are based on reported or detected cases. In fact, deaths due to iatrogenic diseases (caused by doctors) may well reach a quarter of a million making them the third major cause of death in this country.
Medical Errors by Individual Physicians
Simply put, a doctor is a repairperson who fixes broken bodies and minds.
The difference between physicians and other repair people is that the results of medical errors are more tragic and the likelihood of grave error is significantly higher. If a plumber incidentally blows out a pipe while repairing a septic tank, it is inconvenient and distasteful. If a surgeon blows out a body “pipe”, it is fatal.
Medical errors resulting in injury or death may be classified i
n two major groups, slips/lapses and mistakes. Slips and lapses are involuntary, skill-based errors in performance usually occurring when attention is diverted whereas mistakes are the result of deficient medical knowledge, errors in judgment or inadequate medical skill. In recent decades, the amount of medical knowledge has increased exponen-tially. Even specialists have a hard time keeping up with the avalanche of scientific literature pertaining to their specific facet of health care. It is inevitable that general doctors will not be able to meet the standard of care on occasion since they may not even know what it is. More disturbing than the doctor who harms a patient out of ignorance are the physicians who repeatedly fail to reach correct diagnoses or deliver adequate care with disastrous complications. These dangerous doctors may jump from state to state to avoid detection and prosecution.
A rather vivid example is that of Dr. Jose Efrain Veizaga-Mendez. Dr. Veizaga-Mendez, a native of Bolivia, graduated from San Simon’s University School of Medicine in Cochabamba, Bolivia in 1965. He then emigrated to the United States Medical Errors by Individual Physicians
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and completed his internship and residency. By early 2000, a pattern of severe medical mistakes emerged among his patients and in 2006 he had to relinquish his Massachusetts medical license. Shortly thereafter, he applied and was hired on as a surgeon by the Veteran Administration (VA) Hospital in Marion, Illinois. One of his patients died in August 2007 because of uncontrolled bleeding within a day following a routine gallbladder removal. Three days after this tragic death, Dr. Veizaga-Mendez resigned from the hospital and applied for another medical license in North Dakota. Following his departure from the VA, a systematic review of all surgical cases found that between October 2006 and March 2007 there were that at least ten deaths “directly attributable” to substandard care by two surgeons, one being Dr. Veizaga-Mendez. During that time period, only two deaths would have been expected. In October 2007, Dr. Veizaga-Mendez’s medical license was suspended in Illinois.