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Author Topic: This disturbed me  (Read 8965 times)

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Offline vtboy

Re: This disturbed me
« Reply #325 on: January 26, 2014, 07:53:46 AM »
I don't know the US court system, but could it be as simple as requiring a higher court to define exactly what should have been done?  From reading the article, it seems the judge just said "Nah, that's not it.  Guess again" Could an appeal to a higher court simply be a way of getting them to say "OK, this is how this law is applied in these cases"

Yes. Appellate courts exist not only to correct errors made by lower courts in individual cases, but also to clarify laws and to promote consistency in their future application. Perhaps the hospital believes the questions involved should be decided by a higher court for these reasons. The fact that the hospital is run by the county, and is thus possibly more concerned with public policy than a private hospital might be, lends some support to this explanation. Or, the hospital's course may be dictated by the contaminating influence of abortion politics (Texas is one of a number of states which have enacted laws which have had the effect of limiting the availability of abortions). In any event, I would be very interested to learn the hospital's as yet undisclosed reasons for considering an appeal.

Offline Pumpkin Seeds

Re: This disturbed me
« Reply #326 on: January 26, 2014, 07:56:13 AM »
I am confused as to how someone cannot understand the gravity of the hospital protecting itself from a wrongful death suit in this case.  At the very minimum the hospital and state would be giving out millions in damages and at the worst there would be prison time for the physicians and directors involved in violating a state law.  To see how the family could spin their grief into an excuse for the hospital to not have followed their requests, that a law on the books mandates the hospital keep her on life support would have been compelling in a civil court case.  This would easily have turned into a debacle the hospital could not have walked away from without large payouts and jail time, especially given that there is a fetus involved.

As for an appeal, the judge gave them liability.  If the judge had faulted Texas law then the hospital would have a reason to seek claim from the insurance company, since they were following the law, and also could deflect some responsibility in regard to a future law suit.  The hospital is now left with no ability to seek payment since this was their fault according to the judge and no protection against future law suits.  Also the judge’s ruling is still vague and contradictory since if the family had requested she remain on life support the hospital would have been responsible for providing care to a “dead” person.  Which as much as people want to cry that life saving measures and support cannot be given to a dead person, that a “corpse” cannot be a patient they would probably be horrified if the hospital simply walked over and pulled the plug or neglected the woman if her family wanted her alive.

That this case follows closely on the heels of another case where the hospital attempted to remove life support shows just how complex this issue is for a hospital.  As you can see there is no right answer for the hospital in this case.  Here the woman is dead and so medical treatment cannot be continued, whereas just a short time prior a law suit decided that even though a child is brain dead that medical treatment must be continued.  So not only does someone who is brain dead have rights, but they can also still be a patient.  There is no medical difference in regard t diagnosis between those cases.

Keep in mind as well as people are screaming the hospital misread the law and to sue the hell out of them.  If the hospital takes liability for this, the law stands.  This judge did not say there is a problem with the Texas law, only that the hospital failed to apply the law correctly.  As Kythia pointed out, the judge didn’t even clarify the law.  He took a “make it go away” approach.

Cadaver means corpse especially for dissection.  When making use of a word there are context and connotations that are also applied.  People use the word cadaver for those bodies being dissected. 

Offline Iniquitous

Re: This disturbed me
« Reply #327 on: January 26, 2014, 08:45:12 AM »
ca·dav·er noun \kə-ˈda-vər\
: a dead body
 
Full Definition of CADAVER

:  a dead body; especially :  one intended for dissection

source: http://www.merriam-webster.com/dictionary/cadaver

Arguing definitions of words now does not change anything about this case. She is dead thus a corpse, a cadaver, a carcass.

As for protecting themselves from a wrongful death suit, I stated before I understood wanting to protect themselves. HOWEVER, insisting that the hospital looking at an appeal simply to protect themselves willfully ignores the fact that the family has made it quite clear that they want Marlise taken off the machines... which means if they turn around in a month and go "O.M.G! You killed my wife/daughter and my child/grandchild!" they would have a hard time winning since their stance has made the headlines across the nation and everyone knows they wanted the machines pulled. Including the courts.

Concerning the case in California as well as this one... I think all it shows is that there needs to be a firm line applied to hospitals respecting the wishes of the next of kin. Want a dead person kept on machines, hospital has to do it. Want a dead person removed from machines even though the corpse was incubating a fetus. hospital has to do it. While I can see the appeal being a chance at getting definitive answers from a higher court, something tells me this is more about a county within a strict pro-life state trying to set precedence for the future. I also do not think the judge took a deliberate "make it go away" approach. He stated quite clearly that since the law did not apply to Mrs. Munoz that he did not need to rule on any of the constitutional arguments that Eric Munoz made in his filing. And he is correct in that statement... the law was misapplied to Mrs. Munoz. The hospital now knows that it cannot use that law when dealing with dead pregnant patients. There's no reason for him to rule any further about the law.

In other words, his silence speaks a hell of a lot more than his words did.

Offline vtboy

Re: This disturbed me
« Reply #328 on: January 26, 2014, 08:51:18 AM »
I am confused as to how someone cannot understand the gravity of the hospital protecting itself from a wrongful death suit in this case.  At the very minimum the hospital and state would be giving out millions in damages and at the worst there would be prison time for the physicians and directors involved in violating a state law.  To see how the family could spin their grief into an excuse for the hospital to not have followed their requests, that a law on the books mandates the hospital keep her on life support would have been compelling in a civil court case.  This would easily have turned into a debacle the hospital could not have walked away from without large payouts and jail time, especially given that there is a fetus involved.

As for an appeal, the judge gave them liability.  If the judge had faulted Texas law then the hospital would have a reason to seek claim from the insurance company, since they were following the law, and also could deflect some responsibility in regard to a future law suit.  The hospital is now left with no ability to seek payment since this was their fault according to the judge and no protection against future law suits.  Also the judge’s ruling is still vague and contradictory since if the family had requested she remain on life support the hospital would have been responsible for providing care to a “dead” person.  Which as much as people want to cry that life saving measures and support cannot be given to a dead person, that a “corpse” cannot be a patient they would probably be horrified if the hospital simply walked over and pulled the plug or neglected the woman if her family wanted her alive.

That this case follows closely on the heels of another case where the hospital attempted to remove life support shows just how complex this issue is for a hospital.  As you can see there is no right answer for the hospital in this case.  Here the woman is dead and so medical treatment cannot be continued, whereas just a short time prior a law suit decided that even though a child is brain dead that medical treatment must be continued.  So not only does someone who is brain dead have rights, but they can also still be a patient.  There is no medical difference in regard t diagnosis between those cases.

Keep in mind as well as people are screaming the hospital misread the law and to sue the hell out of them.  If the hospital takes liability for this, the law stands.  This judge did not say there is a problem with the Texas law, only that the hospital failed to apply the law correctly.  As Kythia pointed out, the judge didn’t even clarify the law.  He took a “make it go away” approach.

Cadaver means corpse especially for dissection.  When making use of a word there are context and connotations that are also applied.  People use the word cadaver for those bodies being dissected.

The question now is not whether it was initially reasonable for the hospital to protect itself by interpreting the statute as it did, but why it would appeal the order issued Friday.

The judge's order did not make the hospital liable for anything. All it did was construe the statute (i.e., holding a decedent is not a "patient") and direct the hospital to turn off its machines. The hospital's obligations are now clear and any concerns it may previously have entertained over liability for the death of the fetus following the discontinuance of life support have been obviated. In the absence of an appeal, the order will stand. The hospital is not legally obligated to pursue an appeal and the family, having gotten the order it petitioned for, cannot do so. Whatever reasons the hospital may have for considering an appeal, they don't seem to be based on any sort of realistic appraisal of its own potential liability.   

Perhaps you hit the nail on the head in suggesting the hospital's concern now lies in collecting insurance payments for the medical treatment it voluntarily administered to a corpse. While the hospital's financial interest in the matter is understandable, it hardly places the hospital's actions in the best possible light.

Offline Kythia

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Re: This disturbed me
« Reply #329 on: January 26, 2014, 09:09:28 AM »

Concerning the case in California as well as this one... I think all it shows is that there needs to be a firm line applied to hospitals respecting the wishes of the next of kin. Want a dead person kept on machines, hospital has to do it. Want a dead person removed from machines even though the corpse was incubating a fetus. hospital has to do it.

While that position can be a guideline, it can't be law.  Consider if another brain dead patient arrived in the hospital tomorrow.  Equally pregnant.  She, however - knowing she was pregnant and lived near that hospital - has frequently and vocally announced that in that situation she would want to be kept on the machines until the foetus was delivered.  Her next of kin supports her.  Who's paying for that?  The insurance company won't as they'll point to the ruling that a dead person isn't a patient.  The family, hypothetically, can't.  The hospital won't as they'll simply point to that exact same ruling.  Will the state?  County?  If a dead person isn't a patient then why do those machines exist at all?

Wishes of the next of kin can be taken into account, sure, but there does need to be clarity.  Whether the appeal is to any degree an attempt to gain that, I don't know.

Offline Iniquitous

Re: This disturbed me
« Reply #330 on: January 26, 2014, 09:54:40 AM »
The issue here though is the fact that this judge ruled that the law did not apply to Mrs. Munoz, thus it makes no sense for the hospital to try for an appeal on her case. Sure, clarification can be sought out, but not at the expense of a grieving family they have tortured since November. They wanted a judge to rule... the judge has ruled. Take her off the machines and then have the team of lawyers they have seek another way to get clarification instead of holding the Munoz family hostage. It is disgraceful, it smacks of disrespect and I am still not convinced that their possible appeal has anything to do with wanting clarification and rather it being all about trying to force the issue of the fetus - who they know is not viable - into being born. I'll also consider it being all about the money. They want to make sure they don't eat too much of the cost despite it being their mistake.

Offline Pumpkin Seeds

Re: This disturbed me
« Reply #331 on: January 26, 2014, 10:14:36 AM »
Actually words do matter in regard to a debate and those particular words have meanings not found in a simple dictionary.  There are legal, cultural and emotional connotations attached to them that you are manipulating in order to achieve your desired effect while at the same time claiming otherwise.  Were the case that you were simply following the definition, and then you would easily have decided to use another word or simply enjoy taunting me and insulting my profession.

The judge’s order did make the hospital liable by saying that the hospital was mistaken in their interpretation of the law.  Such a ruling, almost by definition, makes the hospital liable for the cost and for an eventual law suit the family will file.  So the administration is likely conferring with the lawyers to determine their best chance of losing the least money at this point.  We can argue the morality of that having to happen, but considering the rampant calls for the hospital to be sued out of business there should be understanding of their predicament. 

Also the judge did not apply a ruling for the determination of brain death.  Following this ruling, is every brain dead patient now to be considered dead?  Therefore does the hospital even have to give a patient on life support a room?  Do nurses have to be assigned to that patient, do they have to be cleaned and monitored or do they even have to be kept on life support past a certain length of time when the insurance company decides to stop paying ?  Following this ruling a hospital would be able to tell the family, “yeah your mom is brain dead so we moved her into the loading dock and kept her on life support so you can say your goodbyes.  Oh, please be here by tomorrow night at midnight because the insurance runs out by then.”  After all, she is dead.

There is no medical difference between this woman and the child in California for the hospital to make a determination.  So either way the hospital is stuck in a situation where they cannot make the correct decision.  Being ambiguous about a decision that could cost someone their loved ones and the hospital hundreds of thousands is playing "make it go away."
« Last Edit: January 26, 2014, 10:24:14 AM by Pumpkin Seeds »

Offline Iniquitous

Re: This disturbed me
« Reply #332 on: January 26, 2014, 11:11:38 AM »


Also the judge did not apply a ruling for the determination of brain death.  Following this ruling, is every brain dead patient now to be considered dead?  Therefore does the hospital even have to give a patient on life support a room?  Do nurses have to be assigned to that patient, do they have to be cleaned and monitored or do they even have to be kept on life support past a certain length of time when the insurance company decides to stop paying ?  Following this ruling a hospital would be able to tell the family, “yeah your mom is brain dead so we moved her into the loading dock and kept her on life support so you can say your goodbyes.  Oh, please be here by tomorrow night at midnight because the insurance runs out by then.”  After all, she is dead.


Brain death. No discernible brain function. No brain function = organs that function solely by the brain working properly cease to function (i.e every aspect of the human body). Bodily organs ceasing to function (i.e. "shutting down", "stopping", "arrest") equals death. Thus, brain death is dead. It is legally recognized as being dead in some states (still searching to find which ones still require it to be cessation of heart and lung functions - which makes NO sense since in those cases of machines being attached to the body, it is the machines keeping the heart and lungs functioning even though the brain is dead and there is NO chance of the person recovering.)

Either way - Texas IS one of the states that recognizes brain death as being legally dead. That being the case, the judge shouldn't have to reiterate that brain dead = dead = deceased person is not a patient. What he did do is say "this law does not apply to Mrs. Munoz" and by saying that, he made it clear that legally dead patients are not what this law is covering. And, again, in Texas, brain death is legally dead. So, to answer your question, in Texas brain dead is legally dead. If your AD/Living Will says to keep you on machines till the end of times or monies to pay for the astronomical costs of keeping your body on machines runs out, then you are still legally dead by the law of Texas - doctors and nurses will know you are legally dead - but no death certificate has been filled out and issued out of respect for your wishes (or the wishes of your next of kin).

Offline Blythe

Re: This disturbed me
« Reply #333 on: January 26, 2014, 12:16:44 PM »
It looks like the hospital is complying has complied with the judge and will remove has removed Mrs. Munoz's body from life support, if the article is right.

http://abcnews.go.com/US/wireStory/texas-hospital-end-care-brain-dead-woman-22029041

Edit: Corrected by Oniya below! I should have read the article more closely!
« Last Edit: January 26, 2014, 04:07:43 PM by Blythe »

Offline Oniya

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Re: This disturbed me
« Reply #334 on: January 26, 2014, 04:05:44 PM »
Correction:  She has been off life support since about 11:30 AM.

Offline vtboy

Re: This disturbed me
« Reply #335 on: January 26, 2014, 05:29:42 PM »
There is one more very troubling aspect of this matter. The hospital apparently refused to pronounce Ms. Munoz dead until the court ordered it to do so. Since there seems to be little dispute that Ms. Munoz has been brain dead for two months, and thus legally dead under Texas law, the hospital's failure to declare the fact strongly suggests it understood death would deprive Ms. Munoz of the status of "patient" and thereby render inapplicable the statutory prohibition against cutting off life support to pregnant patients. Can there be any doubt that, had Ms. Munoz not been pregnant, the hospital would have pronounced her dead long ago? Obviously, the hospital was gaming the system. Again, I suspect the corrupting influence of Texas right-to-life politics.   
« Last Edit: January 26, 2014, 05:30:55 PM by vtboy »

Offline Pumpkin Seeds

Re: This disturbed me
« Reply #336 on: January 26, 2014, 05:59:44 PM »
A physician is not allowed to declare her dead until life support is stopped and all bodily functions cease.  In as much as others would like death to be easily determined, the fact is that a physician must declare the person deceased and they do so based on various signs.  None of these signs require an EEG, which would be used to determine brain activity.  In fact in the United States and the United Kingdoms a flat line on an EEG is considered to be of little value.  Reflex tests are done by a physician routinely and at time of death (in some cases) to determine brain function, but once more the standard criteria involve spontaneous respiration and heart function.

This is unfortunately a cloudy area for medicine.  Death is not an ultimate known so far as we are able to determine and as resuscitation becomes better understood and cellular function past aerobic respiration is better understood, death will take on more complex meaning.  I do not like the judge’s ruling not because of the result as I am happy the family received their peace, but because there is no certain criteria for death that the hospital can follow in this case.  Had the family wanted to keep her on life support, when would the hospital be able to remove life support?  According to the judge the woman is dead, but he is not a physician.  Is death now determined by courts or is death simply whenever the next of kin decides ?  There is an ambiguous area here that should be clarified and agreed upon because the distribution of care is important, especially as resources (space and personnel) grow scarce.

Offline lilhobbit37

Re: This disturbed me
« Reply #337 on: January 26, 2014, 06:03:06 PM »
A physician is not allowed to declare her dead until life support is stopped and all bodily functions cease.  In as much as others would like death to be easily determined, the fact is that a physician must declare the person deceased and they do so based on various signs.  None of these signs require an EEG, which would be used to determine brain activity.  In fact in the United States and the United Kingdoms a flat line on an EEG is considered to be of little value.  Reflex tests are done by a physician routinely and at time of death (in some cases) to determine brain function, but once more the standard criteria involve spontaneous respiration and heart function.

This is unfortunately a cloudy area for medicine.  Death is not an ultimate known so far as we are able to determine and as resuscitation becomes better understood and cellular function past aerobic respiration is better understood, death will take on more complex meaning.  I do not like the judge’s ruling not because of the result as I am happy the family received their peace, but because there is no certain criteria for death that the hospital can follow in this case.  Had the family wanted to keep her on life support, when would the hospital be able to remove life support?  According to the judge the woman is dead, but he is not a physician.  Is death now determined by courts or is death simply whenever the next of kin decides ?  There is an ambiguous area here that should be clarified and agreed upon because the distribution of care is important, especially as resources (space and personnel) grow scarce.

Actually IO has already mentioned multiple times that according to Texas law, brain-dead is considered legally dead. So there is a criteria that has been clarified in this state.

Offline Pumpkin Seeds

Re: This disturbed me
« Reply #338 on: January 26, 2014, 06:07:49 PM »
So if the family wanted her to be kept on life support and a physician came in and simply removed life support, declared her dead and walked away would that physician be committing murder?  Honestly would he be doing anything other than withdrawing care from a dead patient?

And actually she is wrong.

http://www.braindeath.org/law/texas.htm

If artificial means of support preclude a determination that a person's spontaneous respiratory and circulatory functions have ceased, the person is dead when, in the announced opinion of a physician, according to ordinary standards of medical practice, there is irreversible cessation of all spontaneous brain function. Death occurs when the relevant functions cease.

« Last Edit: January 26, 2014, 06:11:05 PM by Pumpkin Seeds »

Offline Valthazar

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Re: This disturbed me
« Reply #339 on: January 26, 2014, 06:16:43 PM »
If artificial means of support preclude a determination that a person's spontaneous respiratory and circulatory functions have ceased, the person is dead when, in the announced opinion of a physician, according to ordinary standards of medical practice, there is irreversible cessation of all spontaneous brain function. Death occurs when the relevant functions cease.

You're quoting the right law, but bolding the wrong portion.  The portion which should be bolded is, "there is irreversible cessation of all spontaneous brain function."  The "opinion of a physician" portion is simply requiring a consistent chain of command, rather than suggesting the doctor has the ability to override the aforementioned definition of death in Texas on ethical/moral grounds.

Offline Pumpkin Seeds

Re: This disturbed me
« Reply #340 on: January 26, 2014, 06:18:35 PM »
I'm afraid I am not.  The person is not dead until declared dead by a physician, the part you feel is important simply supports that a physician can make that declaration based on such criteria.  The ultimate determination is still the physician.

Offline Valthazar

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Re: This disturbed me
« Reply #341 on: January 26, 2014, 06:23:57 PM »
I know, I never suggested otherwise - but it is not a matter of his 'opinion,' in the colloquial definition of the term.  The wording of that law refers to a physician's credentials enabling him/her to accurately deem someone brain dead (as per Texas law) to accurately pronounce death.

Offline Pumpkin Seeds

Re: This disturbed me
« Reply #342 on: January 26, 2014, 06:26:53 PM »
But this still requires the announced opinion of the physician to declare someone dead.  Simply having findings that conclude brain death are not sufficient to declare someone dead, a physician must still do so.  Being brain dead does not then make someone dead, a physician is still required to do so in his opinion.  Meaning that he reviews all the findings and makes a pronouncement based on his medical training and knowledge. 

Offline Valthazar

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Re: This disturbed me
« Reply #343 on: January 26, 2014, 06:28:36 PM »
Obviously, but the criteria that will be used to determine death by the physician will still be brain death (because the physician is making an evaluation as per Texas law).  The doctor's "opinion" does not enable him or her to interject his or her own notions about the concept of death into the decision.

Offline Kythia

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Re: This disturbed me
« Reply #344 on: January 26, 2014, 06:36:49 PM »
Obviously, but the criteria that will be used to determine death by the physician will still be brain death (because the physician is making an evaluation as per Texas law).  The doctor's "opinion" does not enable him or her to interject his or her own notions about the concept of death into the decision.

That's not, if I understand her correctly, what Pumpkin is claiming.  Her point is that "death", as a legal term, doesn't happen until the doctor says it has.  Absent that pronouncement, there is no death.  It's like...man...OK, it's like in a football (soccer) game.  The game lasts 90 minutes of play but it actually doesn't end until the referee blows the final whistle.  If he's early or late then that's a matter for the FA to take up after the game but for the game in question there is no arguing with the referee's whistle.  Does that make sense?  What I mean is that the game lasts 90 minutes/death occurs at brain death but there is no official change of status until the whistle is blown/the doctor announces it.

Offline Valthazar

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Re: This disturbed me
« Reply #345 on: January 26, 2014, 06:39:53 PM »
Oh gotcha.  My bad, that's what happens when you jump into a thread like this midway.  :-)

Offline Pumpkin Seeds

Re: This disturbed me
« Reply #346 on: January 26, 2014, 07:02:19 PM »
That's actually a very good explanation. 

Offline Oniya

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Re: This disturbed me
« Reply #347 on: January 26, 2014, 07:05:48 PM »
What I mean is that the game lasts 90 minutes/death occurs at brain death but there is no official change of status until the whistle is blown/the doctor announces it.

Amelia Earhart wasn't declared dead until two years after she disappeared.  *nods*

Offline Kythia

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Re: This disturbed me
« Reply #348 on: January 26, 2014, 07:13:01 PM »
That's actually a very good explanation. 

Why thank you.  And they all said I was wasting my Saturday afternoons watching the game and it would never be useful.  I can also name the grounds of every league team and all 23 suffixes.

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Offline vtboy

Re: This disturbed me
« Reply #349 on: January 27, 2014, 06:16:13 AM »
http://www.braindeath.org/law/texas.htm

If artificial means of support preclude a determination that a person's spontaneous respiratory and circulatory functions have ceased, the person is dead when, in the announced opinion of a physician, according to ordinary standards of medical practice, there is irreversible cessation of all spontaneous brain function. Death occurs when the relevant functions cease.

This, from the New York Times on January 24: "In legal filings and in the courtroom, the lawyer for the hospital, Larry M. Thompson, said that Ms. Muñoz met the clinical criteria for brain death two days after she arrived there."

It thus appears there was never any dispute that, according to ordinary standards of medical practice, Ms. Munoz suffered an irreversible cessation of all spontaneous brain function two months ago. If hospital physicians harbored any doubts about Ms. Munoz's death -- doubts which could only have buttressed the hospital's decision to continue life support -- the hospital's silence about them is inexplicable. 

The question then is this: If the hospital was not "gaming" the system to avoid recognition of Ms. Munoz's death, and thereby keep her a "patient" for whom life support was mandated, what explanation is there for the failure of hospital physicians to pronounce her dead two months ago?