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Author Topic: This disturbed me  (Read 8931 times)

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Offline Pumpkin Seeds

Re: This disturbed me
« Reply #400 on: January 27, 2014, 03:35:29 PM »
At this point, I honestly donít think anyone here is interested in any answer that does not involve money.  This simply highlights the lack of understanding of non-medical professionals with medical professionals.

Offline Pumpkin Seeds

Re: This disturbed me
« Reply #401 on: January 27, 2014, 04:13:56 PM »
Let me start by apologizing for my little outburst there.  I will attempt to explain some of these terms and conditions as best I can from the perspective of a medical professional.  I am not a medical attorney nor am I an expert on medical law, but as someone that has more than a laymanís grasp of these concepts I will attempt to explain and clarify.

First, the diagnosis of brain-death is a medical diagnosis.  A doctor is stating that in their opinion the patient has the diagnosis of brain-death.  A medical diagnosis is not a legal mandate or statement.  So because a person is considered brain dead by a physician does not make them legally dead.  A pronouncement of death by a physician changes the personís legal status from living to dead, at this point the person is now considered to be dead by legal standards.  The doctor is not making a medical diagnosis but a legal pronouncement.  He is, quite literally, changing the personís legal status.  As outlined by the state this person meets the criteria to the best of the physicianís knowledge and he feels comfortable making a legal pronouncement of death.   Do note that a physician is not obligated to declare anyone dead.

So here we have a common misconception of medical diagnosis versus legal status.  Hopefully that clears up a couple of things.  I do think some confusion comes about because people see brain-dead as a diagnosis and then see brain-death as criteria for actual death, then simply assume the two are the same.  This is not the case.  Here the physician has given the diagnosis of brain death but has not declared death.

The second point of contention I believe comes with a very complex and ill understand concept called care.  When a medical professional or lawyers talk about care this is actually a legal term and concept.  There are different levels and types of care.  For instance nursing care versus medical care, critical care versus emergency care, hospice care versus intensive care.  These are all levels and types of care that have different implications and requirements.  A patient has to be transitioned through each level of care by a doctorís order.  Also certain personal can only give certain levels of care as defined by law and hospital protocol.  Nurses can only give nursing care, doctors give medical care (which tends to also cover nursing care) and so on, so forth.

So now we have established the concepts of diagnosis versus legal declaration and also the concept of care as it pertains to levels and types.  Now the question about giving a deceased person care.  A deceased individual cannot receive medical care as this is actually illegal, as the judge pointed out.  In order for a body to have medical procedures performed on it after death there has to be consent by the person, making them a cadaver for the purposes of medical training and experimentation.  Nursing care follows a similar standard whereby a nurse cannot give nursing care to a deceased, as their level of care is given to the living.  So once a legal definition of ďdeadĒ is given to a person these renders them legally ineligible for medical and nursing care.  Doctors and nurses are not able to give post-mortem care, because this is another discipline and another type of care.  There are legal steps regarding the handling and disposal of bodies.  Nurses and doctors are trained in wrapping the body and preparing the body for transfer to a funeral home or other location, but not in actual care of the deceased body.  This is why a hospital will place a body into a morgue for removal by a funeral service which has morticians, those able to give post-mortem care, in their employ.  Note also that the transition from one form of care to another still requires the physician's consent, a declaration of death by the physician.

So the physician did not ignore the condition of the patient as brain-dead, but did not make a legal declaration of death.  I hope this helps convey the reason why a dead person cannot be a patient and why nursing/medical care cannot be extended to a deceased person.  This is more than simple procedure or protocol, but law that extends into licensing boards and federal territory.

Hopefully Sabby that satisfies your question because if not then I am at a loss for what else to explain. 

Alright, now in regard to the safe harbor question.

As I have already laid out that a medical diagnosis is different than a legal pronouncement.  The physician is able to give their medical diagnosis without fear of legal reprisal unless of course that medical diagnosis leads to some sort of negative impact, but that is another conversation.  Now the safe harbor ruling that you are making reference to protects the doctor if, for instance, he declares a patient deceased that according to all medical examination and assessment meets the criteria for death as outlined by the state.  Yet if the doctor declares death, removes life support and the patient exhibits spontaneous respiration but then passes away soon after where the life support would have kept them alive then the physician is not liable.  The patient meets all criteria so far as the physician could determine.

The safe harbor rule would not apply to a physician that violated the rights of next of kin to continue medical treatment.  A physician may declare someone deceased but if the family states that they do not want to withdraw medical care and to continue treatment then the physician is not able to change the personís status to deceased.  Essentially the family is refusing to transition their loved one to a different level of care, which is allowed.  The safe harbor rule would also not apply if the physician knowingly violated a state law.  As seen here the hospital understood the law to state that they were unable to transition the patient to a level of care whereby life support could not be maintained, death.  So a doctor cannot give pronouncement of death because the state states he may not.

Essentially the judge in this case was saying that the hospital is mistaken and ruled her to be in fact dead, so the physician is able to declare her legally dead and thus transition her to another level of care.  I do hope that through this brief explanation there can be an appreciation for the complexity and ambiguity a physician and hospital faces with these sorts of cases.
« Last Edit: January 27, 2014, 04:30:50 PM by Pumpkin Seeds »

Offline vtboy

Re: This disturbed me
« Reply #402 on: January 27, 2014, 04:43:14 PM »
I still disagree.  Sure, the law you posted grants safe harbour to the physician, but there's a conflict there.  Law A says leave the machines on (or, at a minimum, "If we assume the hospital acted in good faith then the hospital believed law A said leave the machines on") Law B says you won't get in trouble if you switch them off.  Yes, granted, the hospital could have chosen to interpret Law B as taking precedence instead of Law A but they didn't.  Whether and to what extent right to life politics influenced that I couldn't say.

Not exactly. Law B says the physician can't get into legal trouble for declaring a patient dead based on brain death, regardless of the consequences of the declaration, as long as the physician adhered to ordinary medical standards in diagnosing brain death. I quoted Law B in response to an earlier comment to the effect that no physician would declare Ms. Munoz dead due to the risk of being prosecuted for double homicide. Such a prosecution would appear to be an impossibility under the safe harbor provision, even if the declaration led to the hospital violating Law A by turning off the life support machines. Law A does not really conflict with Law B, since Law B assumes the physician might face civil or criminal liability in its absence. In other words, Law B essentially says that, even if the physician could otherwise be found guilty of homicide, the physician gets a pass if he or she followed ordinary medical protocols. 

Offline vtboy

Re: This disturbed me
« Reply #403 on: January 27, 2014, 04:59:11 PM »
Alright, now in regard to the safe harbor question.

As I have already laid out that a medical diagnosis is different than a legal pronouncement.  The physician is able to give their medical diagnosis without fear of legal reprisal unless of course that medical diagnosis leads to some sort of negative impact, but that is another conversation.  Now the safe harbor ruling that you are making reference to protects the doctor if, for instance, he declares a patient deceased that according to all medical examination and assessment meets the criteria for death as outlined by the state.  Yet if the doctor declares death, removes life support and the patient exhibits spontaneous respiration but then passes away soon after where the life support would have kept them alive then the physician is not liable.  The patient meets all criteria so far as the physician could determine.

The safe harbor rule would not apply to a physician that violated the rights of next of kin to continue medical treatment.  A physician may declare someone deceased but if the family states that they do not want to withdraw medical care and to continue treatment then the physician is not able to change the personís status to deceased.  Essentially the family is refusing to transition their loved one to a different level of care, which is allowed.  The safe harbor rule would also not apply if the physician knowingly violated a state law.  As seen here the hospital understood the law to state that they were unable to transition the patient to a level of care whereby life support could not be maintained, death.  So a doctor cannot give pronouncement of death because the state states he may not.

There is no such limitation on the physician's immunity under the statute. Nor is there anything, either in the safe harbor provision or in the preceding section which authorizes a declaration of death upon a diagnosis of brain death, which even remotely suggests the authority granted the doctor is in any way conditioned on the consent of the decedent's family. And, in the Munoz case, the family most assuredly wanted the "transition" and the termination of life support.

Offline Pumpkin Seeds

Re: This disturbed me
« Reply #404 on: January 27, 2014, 05:19:38 PM »
The law being quoted directly addresses what is required to determine death.  This law does not determine the rights of next of kin, the rights of the patient and many other areas that this case touches upon.  This law quoted also does not touch upon the laws of Texas regarding withdrawal of life support from a pregnant woman.  There are many intersecting laws and rights here some of which are federal.  A patient is able to refuse a transition to another level of care whereby they would not be able to receive certain treatment.  For instance if a person were in the hospital and were then discharged, they can refuse the discharge stating that their pain would not be adequately controlled at home therefore they cannot be released to self-care.  A doctorís downgrade of their level of care has not been blocked by a patient.  This same thing applies to next of kin, who now speak for the patient.

Also the family in this case certainly did want life support withdrawn, but Texas Law so far as the hospital saw it prevented the doctor from downgrading the patient to a point where life support would be withdrawn.  There are limits on the powers of a physician and there are piles of books detailing those limits and their exceptions.
« Last Edit: January 27, 2014, 05:27:55 PM by Pumpkin Seeds »

Offline Sabby

Re: This disturbed me
« Reply #405 on: January 27, 2014, 05:47:56 PM »
Hopefully Sabby that satisfies your question because if not then I am at a loss for what else to explain. 

My questioned was answered rather simply by Oniya.

Offline Pumpkin Seeds

Re: This disturbed me
« Reply #406 on: January 27, 2014, 06:12:58 PM »
Ok, she is wrong though.

Offline Caeli

Re: This disturbed me
« Reply #407 on: January 27, 2014, 06:14:10 PM »
Spoiler: Click to Show/Hide
Let me start by apologizing for my little outburst there.  I will attempt to explain some of these terms and conditions as best I can from the perspective of a medical professional.  I am not a medical attorney nor am I an expert on medical law, but as someone that has more than a laymanís grasp of these concepts I will attempt to explain and clarify.

First, the diagnosis of brain-death is a medical diagnosis.  A doctor is stating that in their opinion the patient has the diagnosis of brain-death.  A medical diagnosis is not a legal mandate or statement.  So because a person is considered brain dead by a physician does not make them legally dead.  A pronouncement of death by a physician changes the personís legal status from living to dead, at this point the person is now considered to be dead by legal standards.  The doctor is not making a medical diagnosis but a legal pronouncement.  He is, quite literally, changing the personís legal status.  As outlined by the state this person meets the criteria to the best of the physicianís knowledge and he feels comfortable making a legal pronouncement of death.   Do note that a physician is not obligated to declare anyone dead.

So here we have a common misconception of medical diagnosis versus legal status.  Hopefully that clears up a couple of things.  I do think some confusion comes about because people see brain-dead as a diagnosis and then see brain-death as criteria for actual death, then simply assume the two are the same.  This is not the case.  Here the physician has given the diagnosis of brain death but has not declared death.

The second point of contention I believe comes with a very complex and ill understand concept called care.  When a medical professional or lawyers talk about care this is actually a legal term and concept.  There are different levels and types of care.  For instance nursing care versus medical care, critical care versus emergency care, hospice care versus intensive care.  These are all levels and types of care that have different implications and requirements.  A patient has to be transitioned through each level of care by a doctorís order.  Also certain personal can only give certain levels of care as defined by law and hospital protocol.  Nurses can only give nursing care, doctors give medical care (which tends to also cover nursing care) and so on, so forth.

So now we have established the concepts of diagnosis versus legal declaration and also the concept of care as it pertains to levels and types.  Now the question about giving a deceased person care.  A deceased individual cannot receive medical care as this is actually illegal, as the judge pointed out.  In order for a body to have medical procedures performed on it after death there has to be consent by the person, making them a cadaver for the purposes of medical training and experimentation.  Nursing care follows a similar standard whereby a nurse cannot give nursing care to a deceased, as their level of care is given to the living.  So once a legal definition of ďdeadĒ is given to a person these renders them legally ineligible for medical and nursing care.  Doctors and nurses are not able to give post-mortem care, because this is another discipline and another type of care.  There are legal steps regarding the handling and disposal of bodies.  Nurses and doctors are trained in wrapping the body and preparing the body for transfer to a funeral home or other location, but not in actual care of the deceased body.  This is why a hospital will place a body into a morgue for removal by a funeral service which has morticians, those able to give post-mortem care, in their employ.  Note also that the transition from one form of care to another still requires the physician's consent, a declaration of death by the physician.

So the physician did not ignore the condition of the patient as brain-dead, but did not make a legal declaration of death.  I hope this helps convey the reason why a dead person cannot be a patient and why nursing/medical care cannot be extended to a deceased person.  This is more than simple procedure or protocol, but law that extends into licensing boards and federal territory.

Hopefully Sabby that satisfies your question because if not then I am at a loss for what else to explain. 

Alright, now in regard to the safe harbor question.

As I have already laid out that a medical diagnosis is different than a legal pronouncement.  The physician is able to give their medical diagnosis without fear of legal reprisal unless of course that medical diagnosis leads to some sort of negative impact, but that is another conversation.  Now the safe harbor ruling that you are making reference to protects the doctor if, for instance, he declares a patient deceased that according to all medical examination and assessment meets the criteria for death as outlined by the state.  Yet if the doctor declares death, removes life support and the patient exhibits spontaneous respiration but then passes away soon after where the life support would have kept them alive then the physician is not liable.  The patient meets all criteria so far as the physician could determine.

The safe harbor rule would not apply to a physician that violated the rights of next of kin to continue medical treatment.  A physician may declare someone deceased but if the family states that they do not want to withdraw medical care and to continue treatment then the physician is not able to change the personís status to deceased.  Essentially the family is refusing to transition their loved one to a different level of care, which is allowed.  The safe harbor rule would also not apply if the physician knowingly violated a state law.  As seen here the hospital understood the law to state that they were unable to transition the patient to a level of care whereby life support could not be maintained, death.  So a doctor cannot give pronouncement of death because the state states he may not.

Essentially the judge in this case was saying that the hospital is mistaken and ruled her to be in fact dead, so the physician is able to declare her legally dead and thus transition her to another level of care.  I do hope that through this brief explanation there can be an appreciation for the complexity and ambiguity a physician and hospital faces with these sorts of cases.


Thanks for the explanation, Pumpkin.  That clears up a lot of gaps of knowledge that I had about the case.  I really appreciate that you took the time to write that out for us.

Offline vtboy

Re: This disturbed me
« Reply #408 on: January 27, 2014, 06:33:29 PM »
The law being quoted directly addresses what is required to determine death.  This law does not determine the rights of next of kin, the rights of the patient and many other areas that this case touches upon.  This law quoted also does not touch upon the laws of Texas regarding withdrawal of life support from a pregnant woman.  There are many intersecting laws and rights here some of which are federal.  A patient is able to refuse a transition to another level of care whereby they would not be able to receive certain treatment.  For instance if a person were in the hospital and were then discharged, they can refuse the discharge stating that their pain would not be adequately controlled at home therefore they cannot be released to self-care.  A doctorís downgrade of their level of care has not been blocked by a patient.  This same thing applies to next of kin, who now speak for the patient.

Also the family in this case certainly did want life support withdrawn, but Texas Law so far as the hospital saw it prevented the doctor from downgrading the patient to a point where life support would be withdrawn.  There are limits on the powers of a physician and there are piles of books detailing those limits and their exceptions.

Well, you are nothing if not tenacious.

Are you seriously suggesting that if a doctor complies with the the requirements of the Texas death statute in declaring a patient dead, he or she may nevertheless be prosecuted for homicide or sued civilly, notwithstanding the statute's blanket prohibition of such actions?

When statutory provisions are couched in unqualified language, as is the safe harbor section of the Texas death statute, the provisions are presumed by courts to apply without qualification. The absence from the section of any reference to other laws means the physician enjoys immunity for a declaration of death, without regard to whether its consequences might otherwise work a violation of some other law. Obviously, if the physican were to do something beyond declaring death (e.g., harvest organs without valid consent), the immunity would not apply. But, the plain meaning of the section is that the physician is not subject to civil or criminal liability for a declaration of death made in conformity with the statute's requirements.

Offline Sabby

Re: This disturbed me
« Reply #409 on: January 27, 2014, 06:41:19 PM »
Ok, she is wrong though.

I'm sure she'd appreciate an explanation as to why.

Offline IStateYourName

Re: This disturbed me
« Reply #410 on: January 27, 2014, 06:44:59 PM »
I think Pumpkin's excellent explanation of the system just buttresses my basic belief that the right-to-lifers need to be kept out of it.

Seems to me that the whole issue of levels of care and death is rather complicated, cantankerous machinery as-is.  So we don't need religious fanatics trying to throw sand into the gears.

Offline Oniya

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Re: This disturbed me
« Reply #411 on: January 27, 2014, 06:48:20 PM »
I'm sure she'd appreciate an explanation as to why.

Actually, I'd trust Pumpkin's explanation more than any layperson's - including mine.

Offline Pumpkin Seeds

Re: This disturbed me
« Reply #412 on: January 27, 2014, 07:49:00 PM »
I am not suggesting, I am telling you that this is the case.  I have already explained to you what that provision is designed to protect a physician against.  The provision does not allow a physician to ignore other laws and rights in declaring someone deceased.  If such was the case then the situation in California would not have occurred and neither would this one. 

Thank you Oniya and I was not trying to sound snipy.  You are correct that a medical insurance company will not pay for medical care delivered to a deceased person since, as I laid out, medical care cannot be delivered to a deceased body.  Insurance companies pay based on diagnosis.  So when a physician gives the diagnosis appendicitis, the insurance company takes that diagnosis and checks how much they are willing to pay out.  Once the physician turned in a diagnosis of brain death, the insurance company had already told the hospital how much they were willing to pay.

Offline Sabby

Re: This disturbed me
« Reply #413 on: January 27, 2014, 07:53:04 PM »
I'm confused. Oniya says it's a matter of insurance. You say she's wrong, and then go on to explain about the insurance. I fail to see where Oniya's explanation is wrong, especially when you appear to agree with her.

Offline Oniya

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Re: This disturbed me
« Reply #414 on: January 27, 2014, 08:01:26 PM »
She's saying I'm right about insurance companies not paying for care on a deceased patient.  The insurance company has already put in their 'bottom line' well before the declaration of death.

Offline Sabby

Re: This disturbed me
« Reply #415 on: January 27, 2014, 08:20:30 PM »
She says your wrong, and then goes on to agree with you for two paragraphs.

Pumpkin, I'm not being argumentative with you, I just really cannot for the life of me understand how any of your responses connect to the questions I ask you. I'm just going to opt out for today, as I cannot see us communicating like this.

Offline Pumpkin Seeds

Re: This disturbed me
« Reply #416 on: January 27, 2014, 08:24:03 PM »
She is wrong because the hospital would not have refused to declare her dead on fear of not being paid.  I am saying she is correct about the insurance company not paying for a deceased body, but she is wrong about the rational of why the hospital refused to declare the person dead.

Offline vtboy

Re: This disturbed me
« Reply #417 on: January 28, 2014, 05:10:07 AM »
I am not suggesting, I am telling you that this is the case.  I have already explained to you what that provision is designed to protect a physician against.   

According to your explanation, the immunity granted physicians under section 671.002 is limited to situations in which, following a declaration of death and removal of life support, the decedent surprises everyone by continuing to respire on its own for a brief period. Since this supposed limitation appears nowhere on the face of the statute, please tell me on what, exactly, you base your belief that the purpose and reach of the otherwise unqualified language of section 671.002 are thus restricted?