Sunday, December 03, 2006

When is death?

A story in today's Globe about a current case at our hospital provides a thoughtful and balanced description of the legal, moral, and social dilemma that can be faced by hospitals, nursing homes, and other providers at the end of life. I'll let the reporter's accounting stand for itself, and I would welcome comments from those of you out there who have opinions on the issue.


Bwana said...

Oh my. It sure sounds like the lawyer and the family are gearing up to escalate the existing legal proceedings. Although I can think of theories that might be raised, I will not state them since I don't want to given anyone ideas.

It goes without saying that one must make a reasonable accommodation for the religious beliefs of the patient. But what about the religious beliefs of the family members? In this case, since the religion of the family members is the same as that of the patient, the beliefs would be congruent, but one might imagine a situation in which people of different religions are married or have a child brought up in a religion different from one parent or both (as when the child converts).

This raises the question whether any interpretation of state law forcing a hospital to cater to religious beliefs is a violation of the Establishment (of religion) clause of the First Amendment to the US Constitution and the cognate provision of the Massachusetts Constitution. Note that this is a different issue from requiring no discrimination on the basis of religion -- there the state is merely ensuring that belief or non-belief in one or any religion is not penalized, whereas REQUIRING a hospital to honor the religious belief of a person or his family in the dispensing of medical care stands on a different footing.

Courts have long refrained from deciding what is appropriate when it comes to religious belief. However, they have not hesitated to regulate "practices" performed in the name of religion as when the anti bigamy statute in Utah was upheld by the US Supreme Court in 1878, and again earlier this year by the Utah Supreme Court.

Another interesting question is whether a heart beating of its own accord stands on a different footing from a heart beating as the result of artificial assistance. If we view the existence of a beating heart as a theological issue, i.e., it is beating and therefore the soul is alive, we might get into difficult questions about whether religious practice can dictate whether cardiac resuscitation following arrest is prohibited. If we view it as a medical issue, the focus changes. When medical judgment dictates that resuscitation be attempted or not be attempted, can religion trump that judgment to force a different result? More importantly, can the state via statute or decisional law mandate such a result?

The question whether a heart beating with mechanical or electronic assistance engenders the same religious concerns may require expert testimony from a theologian -- but nowhere does it say that only "standard" or "accepted" religious beliefs can govern the day. And what if there are conflicting beliefs? Which one does the hospital choose?

Therein lies the problem -- allowing each family or each patient to DICTATE how medical intervention will or will not proceed based on their "stated" religious beliefs and the degree to which they abide by such beliefs is more likely to introduce chaos and impose unreasonable restrictions and constraints on health care providers than to ensure uniformity, equality, consistency, and, of course, QUALITY of care.


Anonymous said...

From the Globe report, which likely omitted clinical details that appropriately remain private to the family and staff only, the staff at Beth Israel Deaconess Medical Center did the right thing, and did so with both profound consideration of the dignity of the patient and warm responsiveness to the wishes of the family -- but the latter had to be balanced against the clinical situation of the patient himself. Continuing measures ordinarily characterized as "life support" can at times become abuses of the patient, and the physicians, nurses and others seemed sensitively aware of that threshold in this case. They are to be complimented for choosing the correct approach and action.


Anonymous said...

I also think BIDMC handled the matter properly and well. I believe the most appropriate standard for care in end of life situations should be sound and prudent medical practice. If there are tough calls to be made, the institution's ethics committee should probably be the final arbiter. I also note that society (taxpayers) pays most of the bills for Medicare patients. If a family's wishes, religious or otherwise, are in conflict with the hospital's best judgment, I think the institution's judgment should prevail even if there is a living will with instructions to "do everything." If the family is prepared to pay for extraordinary care itself, it would be in a stronger position to expect it to be provided, but even then, if there are ethical issues such as a professional judgment that continuing treatment would be inhumane, I think the institution's judgment should prevail then as well.

Anonymous said...

This story sounds like a lawyer exploiting grief. Nothing in Buddhism supports artificial sustaining of the heart. The family was in grief, they could not let go. My heart goes out to them. But when a lawyer is talking to a newspaper, it ain't about religion.

Anonymous said...

Here's the follow-up story in the Globe:

Judge dismisses end-of-life case brought by family of Buddhist
By Megan Tench, Globe Staff

A Suffolk Family and Probate Court judge today dismissed a controversial end-of-life case involving 72-year-old Cho Fook Cheng, ruling that it is moot because the Buddhist died over the weekend.

But a lawyer for Cheng's family said that they will continue seeking a ruling that points to the delicate issue on how hospitals should reconcile modern technology and patients' religious practices.

"This is [a] situation capable of repetition, and the family does not want anyone else to have to go through this," said the lawyer, Peter J. Unitt.

After Cheng suffered a heart attack two weeks ago and was later pronounced brain dead by doctors at Beth Israel Deaconess Medical Center, his family went to court to keep Cheng on life support systems keeping his organs functioning. The family, who practice a Taiwanese school of Buddhism called Jing-Tao-Chung, said that according to their religious beliefs a person is only considered dead when his heart stops beating.

Under state law, however, a person is considered deceased when their brain ceases to function. Doctors also argued that Cheng's body was rapidly deteriorating.

After a family court hearing Friday, the family reluctantly agreed to let Cheng's medical supply run out so that his heart would stop beating naturally. That happened Saturday afternoon, and his family began 49 days of mourning.

Though Family Probate Judge Nancy M. Gould ruled that the issue before her is now moot, Unitt said he will explore other avenues, including filing an appeal, or taking the matter to the Supreme Judicial Court or the state Legislature.

"This is going to come up again and somebody will have to answer the question," he said.

Megan Tench can be reached at