Reporter Volume 3 - TMLT

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Reporter Volume 3 - TMLT

cmeACTIVITYEnd ofLifeObjectives1. Develop a strategy for discussing end-of-life issueswith patients.2. Understand the Texas requirements for Advance Directives,Medical Power of Attorney for Healthcare, Mental HealthDirective, and Out-of-Hospital DNR.3. Identify resources available to assist patients with end-of-lifedecisions and executing advance directives.4. Identify risk management considerations when dealing withend-of-life issues.Course authorCathy Bryant is a risk management representative with TexasMedical Liability Trust.DisclosureCathy Bryant has no commercial affiliations/interests to discloserelated to this activity.Target audienceThis one-hour activity is intended for physicians of all specialtieswho are interested in practical ways to reduce the potential formalpractice liability.CME credit statementUnder AMA guidelines, physicians are required to complete andpass a test following a CME activity in order to earn CME credit.A passing score of 70% or better earns the physician 1 CMEcredit. Physicians will be allowed two attempts to pass the test.TMLT is accredited by the Accreditation Council for ContinuingMedical Education (ACCME) to provide continuing medicaleducation for physicians. TMLT designates this enduring materialfor a maximum of 1 AMA PRA Category 1 Credit TM . Physiciansshould only claim credit commensurate with the extent of theirparticipation in the activity.PricingReporter CME content is available at no cost. The following feewill be assessed when CME credit is applied for.2012 Volume 3Policyholders: freeNon-policyholders: $75Ethics statementThis course has been designated by TMLT for 1 credit in medicalethics and/or professional responsibility.InstructionsYou have two options to obtain CME credit from this activity.Option 1 – onlineComplete Reporter CME test and evaluation forms online. Afterreading the article, go to www.tmlt.org/reporterCME. Click on“Earn CME” under “End-of-life issues” (2012 Volume 3). Followthe instructions to complete the test and evaluation forms. YourCME certificate will be emailed to you. Please allow up to 4weeks for delivery of your certificate.Option 2 – on paperPlease read the entire article and answer the CME test questionson the paper test forms on page 12. To receive credit, submit thecompleted test and evaluation forms to TMLT. All test questionsmust be completed. Please print your name and address clearly.Allow 4 to 6 weeks from receipt of test and evaluation form fordelivery of the certificate.Questions? Please call the TMLT Risk Management Departmentat 800-580-8658, ext. 5919.the Reporter | 5


the REPORTEREstimated time to complete activityIt should take approximately 1 hour to read this article andcomplete the questions.Release/review dateThis activity is released on June 11, 2012 and will expire onJune 11, 2015. Please note that this CME activity does not meetTMLT’s discount criteria. Physicians completing this CMEactivity will not receive a premium discount.IntroductionRobert Watson wrote, “Growth in the number of people living tovery old age and progress in health care technology are creatingimportant new challenges for our society. Among them is modernmedicine’s ability to extend some people’s lives beyond thepoint where they are capable of making decisions or expressingtheir needs and desires, resulting in the very complex problem ofknowing when to allow a person to die. In part, advance directiveswere created to solve this problem.” 1 In 1999, Texas createda single state law in an effort to create more “user-friendly” directives.Discussing end-of-life issues is not easy for the physician,patient, or family. But this could well be the most importantdiscussion you, as a physician, ever have with your patient.“Americans tend to procrastinate when it comes to mattersinvolving death and dying.” According to a Harvard MedicalSchool study published in May 2009, even many terminally illpatients and their physicians put off conversations about end-oflifechoices. 3 Is the procrastination due to cultural values or arephysicians and patients unsure of how to start the conversation?Dr. JoAnne Norwak, medical director of Partners Hospice andPalliative Care in Boston, believes that many physicians find iteasier to discuss chemotherapy options with patients rather thanend-of-life choices. 4 Rigney Cunningham, executive director ofHospice & Palliative Care Federation of Massachusetts, states“As baby boomers get older and see how their parents are dying,they don’t want that type of death.” 5More than 2.5 million people die each year in the U.S.; at least60% die in a hospital. Of those, 50% have been cared for in anintensive care unit in the three days that preceded death. 6Ideally, patients should take the time to think about what theywant at the end of their lives. Patients should document theirdesires in writing and communicate them to their familiesand physicians. In Texas, ideally, patients have executed fourdocuments:1. A Directive to Physicians and Family or Surrogates2. A Medical power of Attorney for Healthcare3. An Out-of-Hospital Do Not Resuscitate Order4. A Declaration of Mental Health TreatmentHowever, even when patients and their families have discussionsand have the directives in place, things may not go according toplan. Consider the following story of a family’s struggle.One family’s storyMy father had many health issues; in fact, he had taken earlyretirement due to his health. His desire for self-determinationbegan many years earlier, when he had been intubated and on aventilator post-operatively. From that time on, he had expressedhis strong desire to never be intubated and ventilated again. Hisattorney had carefully included his specific desires in his advancedirective. He had named power of attorneys for health care andrepeatedly reminded them of his wishes. His physicians wereaware of his desires and copies of the advance directive were onfile with his physicians and the local hospital. And most of all,How Americans die 2Nearly half of all Americans die in a hospital. Source: Centersfor Disease Control (2005)Nearly 70 percent of Americans die in a hospital, nursinghome or long-term-care facility. Source: Centers for DiseaseControl (2005)7 out of 10 Americans say they would prefer to die at home.Source: Time/CNN Poll (2000)Only 25 percent of Americans actually die at home. Source:Centers for Disease Control (2005)More than 80 percent of patients with chronic diseases saythey want to avoid hospitalization and intensive care whenthey are dying. Source: Dartmouth Atlas of Health Care(2005)Hospitalizations during the last six months of life are rising:from 1,302 hospital admissions per 1,000 Medicare recipientsin 1996 to 1,442 in 2005. Source: Dartmouth Atlas of HealthCare (2005)7 out of 10 Americans die from chronic disease. More than90 million Americans live with at least one chronic disease.Source: Dartmouth Atlas of Health Care (2005)Almost a third of Americans see 10 or more physicians inthe last six months of their life. Source: Dartmouth Atlas ofHealth Care (2005)Only 20 to 30 percent of Americans report having an advancedirective such as a living will. Source: Associated Press(2010)Even when patients have an advance directive, physicians areoften unaware of their patients’ preferences. One large-scalestudy found that only 25 percent of physicians knew that theirpatients had advance directives on file. Source: Critical CareJournal (2007)6 | the Reporter 2012 Volume 3


cmeACTIVITYmy family and I had heard many times what his wishes were. Asa nurse; I knew all the things to do, all the questions to ask, allthe rights to demand.My father was not feeling well. He was tired and a little shortof breath. He called his physician the next morning. He was seenand diagnosed with a mitral valve prolapse. The plan was to admithim under the care of a cardiologist at a tertiary center about 50miles away.Upon admission he was made a DNR at his request. Within anhour of admission he was having chest pain and was diagnosedwith acute MI. The cardiologist and cardiovascular surgeonrecommended a cardiac catheterization before the mitral valvereplacement. My dad was able to participate in the discussionabout the risks and benefits of the surgery. It was explained thathis DNR status would be suspended during surgery and thathe would, in all probability, be intubated and on a ventilatorfollowing surgery. My father agreed to the surgery and suspensionof the DNR.My father was taken to the catheterization lab and returned toICU with an intra-aortic balloon pump in place until his surgerythe next morning. The surgery was long and difficult. He wasmoved to ICU and was intubated and on a ventilator. We askedabout reinstating the DNR, and we were told the suspension wasstill in place due to surgery and no one could answer when itwould be reinstated.In retrospect, we did not ask in advance about how long the DNRsuspension would be in place. It seemed “during surgery” was adefinitive period of time; or the time my dad was in surgery orthe surgical area. Regardless, we should have asked more specificquestions.Post-op day 1 – My dad was not waking up and no sedation wasbeing used. The cardiovascular surgery resident did not write orreinstate the DNR order. We asked for a neurology consult.Working diligently through the neurologist and after eighthours, the CV resident reluctantly agreed to write a DNR order.However, it was only in effect until the operating surgeon cameback on call in two days.Post-op day 3 – The operating surgeon returned and somewhatreluctantly agreed to write a full DNR order. A few hours later,my dad was still not responsive, but, having slight movement ofhis arms. He extubated himself, only to be quickly reintubated bya nearby physician, without any discussion with us.Post-op day 4 – My dad remained unresponsive, now withsecurely restrained arms. He bit the ET tube, but was quicklyreintubated before we were was consulted. The medical andnursing staff seemed unaware or unwilling to accept the DNR.Post-op day 5 – The pulmonologist and the intensive care teambegan discussing tracheostomy in preparation for long termventilator care. I again reminded them of my father’s advancedirective and DNR status.2012 Volume 3Post-op day 6 – My father extubated himself again and I wasfinally able to convince the nurses and the resident to honor hiswishes. His family and friends gathered around to say good byeand he died peacefully.The obvious question now: how can physicians honor patientsend-of-life decisions and stay within the law?What does the law require?The Federal Patient Self Determination Act requires facilities,such as hospitals, to inquire about the existence of an advancedirective and provide information about these directives to adultpatients upon admission. This law does not have specific requirementsfor individual physicians.Texas Advance Directive Act 7 is the current law coveringadvance directives. In 1999, the Texas Legislature rewroteexisting legislation, combining several laws into one piece oflegislation in an effort to decrease confusion about end-of-lifeissues. Included in the Act are Directives to Physicians andMedical Power of Attorney requirements.The Texas Advance Directive Act also has provisions to allowhealth care facilities to discontinue life-sustaining treatment.When facilities and physicians follow the detailed process fordiscontinuing life-sustaining treatment, the Act provides for legalimmunity from prosecution.“Key provisions for resolving futility cases under the TexasAdvance Directives Act:1. The physician’s refusal to comply with the patient’s orsurrogate’s request for treatment must be reviewed by ahospital-appointed medical or ethics committee in which theattending physician does not participate.2. The family must be given 48 hours’ notice and be invited toparticipate in the consultation process.3. The ethics-consultation committee must provide a writtenreport detailing its findings to the family and must include thisreport in the medical record.4. If the ethics-consultation process fails to resolve the dispute,the hospital, working with the family, must make reasonableefforts to transfer the patient’s care to another physician orinstitution willing to provide the treatment requested by thefamily.5. If after 10 days (measured from the time the family receivesthe written summary from the ethics-consultation committee)no such provider can be found, the hospital and physicianmay unilaterally withhold or withdraw therapy that has beendetermined to be futile.6. The patient or surrogate may request a court-ordered timeextension, which should be granted only if the judge determinesthat there is a reasonable likelihood of finding a willingprovider of the disputed treatment.the Reporter | 7


the REPORTER7. If the family does not seek an extension or the judge fails togrant one, futile treatment may be unilaterally withdrawn bythe treatment team with immunity from civil and criminalprosecution.”AMA policies on end of lifeThe American Medical Association, Code of Ethics 8 states:“Patients have a right to participate in decisions about theirmedical care. This fundamental principle of medical ethics holdstrue for all types of medical treatments. Patients can refuse treatmentseven when such refusal is likely to result in death.”Life-sustaining treatments should provide medical benefits andshould respect a patient’s preferences, as communicated by thepatient or a legally recognized surrogate. Treatments such asmechanical ventilation and artificial nutrition and hydrationshould be provided only with appropriate authorization froma patient, a surrogate, or a court. Once initiated, life sustainingtreatments may be ethically withdrawn upon request of thepatient, or a surrogate or court acting on the patient’s behalf.To assist patients and surrogates in the decision-making process,physicians have an obligation to provide medical expertise,competent diagnosis based on an appropriate evaluation of thepatient, and therapeutic options that are in accord with acceptedprofessional standards of care.”Specific AMA policies concerning end-of-life care are availableonline through policy finder: http://www.ama-assn.org/ama/pub/about-ama/our-people/house-delegates/policyfinder.page .TMA opinion on end-of-life care discussions 9“Physicians should educate themselves on the opportunitiesand responsibilities provided by state law governing advancedirectives and end-of-life care, and should use appropriate opportunitiesto discuss the issue with their patients. Physicians caringfor the patient in an end-of-life situation should be open to theopinion and advice of another physician who has had a discussionwith the patient on end-of-life issues and decisions, even ifthat physician is not immediately caring for the patient at the timesuch end-of-life treatment decisions arise.It is incumbent upon physicians to develop a method of incorporatinga process of determining their patient’s end-of-life wishesinto their daily practice, in keeping with the AMA and TMApolicies and opinions as well as their own beliefs.”Texas forms for patients to express end-of-life carewishesTexas law provides for four important documents that can be usedto express patient’s end-of-life wishes. While Texas law providesa suggested form, the state does not require the use of anyspecific form for an advance directive. The law also states that nohealth care institution can require patients to use a specific form.At a minimum, an advance directive should be dated and signedin front of a competent adult witness or a notary public.Texas physicians should be aware that universal forms suchas those provided by the American Bar Association 10 and FiveWishes 11 are not considered valid in Texas unless it includes adetailed mandatory disclosure statement unique to Texas. It isimportant to understand how these forms differ. The forms areavailable from a variety of sources, including TMA.1. Advance Directive to Physicians and Family or Surrogates2. Medical Power of Attorney for Healthcare3. Mental Health4. Out-of-Hospital DNRAccording to the Texas Hospital Association, there are fourtypes of advance directives patients can execute 12 . A patient maychoose to execute one, or several, depending on the situation.Making copies of blank directives is optional for physicians.Directive to Physicians and Family or Surrogates — This directiveallows patients to specify for the provision, withdrawal,or withholding of medical care in the event of a terminal orirreversible condition. The terminal or irreversible condition ofthe person who executed the directive must be certified by onephysician.Medical Power of Attorney — This directive allows patients todesignate another person as their agent for making health caredecisions if a patient is unable to make medical decisions orbecomes incompetent. Patients do not have to have a terminalor irreversible condition in order to execute a medical power ofattorney.Out-of-Hospital Do-Not-Resuscitate Order (OOH DNR) —Thisdirective allows competent adults to refuse certain life-sustainingtreatments in non-hospital settings where health care professionalsare called to assist, including hospital EDs and outpatientsettings. Because an out-of-hospital emergency can occur anytime or any place, patients should carry a photocopy of thewritten form or wear a designated ID bracelet. “This directivecannot be executed for minors unless a physician states the minorhas a terminal or irreversible condition.” According to the TexasDepartment of State Health website:“If you are distributing blank OOH DNR forms 13 to be filled outby patients, family and doctors, the blank form MUST includethe OOH DNR form on one side and the instructions on the otherside. In the instructions, there is some information required bylaw that must be made available to the patient, family, witnessesand doctors before the form is signed.Emergency medical services personnel can honor an OOH DNRform that appears to have been properly executed, even if theinstructions are not on the opposite side.”Declaration of Mental Health Treatment — This directive allowsa court to determine when a patient becomes incapacitated, andwhen that declaration becomes effective. Patients may opt not toconsent to electro-convulsive therapy or to the use of psychoac-8 | the Reporter 2012 Volume 3


cmeACTIVITYtive drugs. The declaration expires in three years, and must beexecuted again, unless the patient is incapacitated at that time.Special considerations for physiciansThere are many special situations or considerations when itcomes to patients’ end-of-life wishes.• “My patient states he has a living will but is unableto find a copy of it; can I honor his wishes? A writtenadvance directive is recommended as a serious accident orillness could render the patient unable to communicate withhealth care providers. 14 However, a patient can make a verbaldeclaration to his or her physician if the patient is able andcompetent. A patient must make the declaration in front ofhis or her attending physician and two additional witnessesshould also be present. The physician then must enter thedeclaration and the names of the witnesses into the patient’smedical chart. Physicians can certainly offer the patient ablank form to complete and ask the patient to provide a copyfor the physician’s medical records.”• My patient is unable to make medical decisions forhimself and he has a medical power of attorney. I do notbelieve that the medical power of attorney is makingdecisions in the best interests of the patient. What can Ido? In Texas, if a physician believes that a medical powerof attorney is “making care (15) choices that are not in thebest interest of the patient, then the physician can challengethe treatment decisions by involving the hospital or facilityadministration and/or the ethics committee of the facility.”• Are there special rules or requirements in Texas forphysicians writing Do Not Resuscitate (DNR) orders?The Texas Medical Board Rules are silent on DNR orders.However, most hospitals and other health care facilitiesaddress DNR orders in their bylaws, medical staff rules, orpolicies. Physicians need to be aware of the policy in thefacility where they practice. Physicians may want to inquirewhat the facility policy is on giving oral DNR orders, timelimitedDNR orders, partial DNR orders, or other specialsituations.• I am an anesthesiologist; can I write an order suspendingDNR during surgery? In 2001 and in 2008, the AmericanSociety of Anesthesiologists issued “Ethical guidelinesfor the anesthesia care of patients with do-not-resuscitateorders or other directives that limit treatment” that providesguidance on a variety of situations regarding suspendingDNR orders 17 . Discussions with the patient or his or hersurrogate to understand the patient’s desire to limit treatmentare important; as well as discussions with the surgeonand primary care physician. These discussions should bedocumented in the medical record. Additionally, facilitypolicies may provide guidance to physicians.• What are my options if I know of a patient’s advancedirective, and I refuse to follow it? If known in advance,the physician should discuss his or her concerns with thepatient and offer to transfer the patient’s care to another2012 Volume 3physician who is willing to carry out the patient’s wishes.Physicians facing this situation should continue lifesustainingtreatment until the care of the patient canbe transferred to another physician who will honor thedirective. It may be helpful to involve the ethics committeeof the hospital.How do I approach the subject of end-of-life care?It is impossible to predict what treatment a patient may want atthe end of his or her life. If the patient is unable to communicate,families may be faced with the difficult task of making decisionsthat they may be ill prepared to make. Ideally, all patients willhave a conversation with their physicians and families about theirwishes for end-of-life care and commit their wishes to writing.The Agency for Healthcare Research and Quality (AHRQ)publication, “Advance Care Planning: Preferences for Care atthe End-of-life” helps physicians guide patients through advancecare planning. 18Advanced care planning discussions can take place in thephysician office during routine care visits. Many times patientsprovide cues to their physicians by wanting to talk about deathor asking about hospice. Physicians have opportunities to begincare planning discussions, such as when discussing prognosis andtreatment options and conducting annual examinations.Researchers sponsored by AHRQ developed a five-step processfor physicians to use when conducting advance care planning orend-of-life decision discussions.1. Initiate a guided discussion. Researchers suggest that thephysician share a hypothetical scenario and possible treatmentoptions that are applicable to the patient’s preferences.2. Introduce the subject of advance care planning and offer information.Patients should be encouraged to complete both anadvance directive and durable power of attorney. It is importantfor patients to understand that without these documents,decisions about their care are left to family when patients areno longer able to make decisions for themselves.3. Encourage patients to complete advance planning documents.Advance care planning documents contain specific instructions.AHRQ studies show that standard language in advancedirectives is often not specific enough to communicate aperson’s desires. 20 If a patient states that he or she does notwant to be on a ventilator, the physician should clarify if thisapplies under all circumstances and document the conversationin the patient’s medical record.4. Review the patient’s preference on a regular basis and updatedocumentation. Patients should be reminded to review theiradvance directives and that they can be revised at any time.Research has shown that patients often state one choicewhen presented with a hypothetical situation and change thatdecision when confronted with the actual illness. Furtherresearch showed that patients with advance directive preferencesremained stable 86% of the time over a two-year period.the Reporter | 9


the REPORTERHowever, those without an advance directive changed theirpreferences 59% of the time. When reviewing preferenceswith patients, a physician should investigate the reasons forthe change and note the reasons in the medical record.5. Apply the patient’s desires to actual circumstances. Conflictscan arise after a patient has made end-of-life decisions.Research indicates that if patients desire non-beneficialtreatments or refuse beneficial treatments, most physiciansstated they would negotiate with them, trying to educate andconvince them to either forgo a non-beneficial treatmentor to accept a beneficial treatment if the treatment was not19, 21harmful.”It can be helpful to have printed materials available. “CaringConversations is a consumer education initiative that helpsindividuals and their families have meaningful conversationswhile making practical preparations for end-of-life decisions.”Publications are available at http://practicalbioethics.org/about/model-and-methodology/making-your-wishes-known-for-end-oflife-care/.Where do my patients get information on advanceddirectives?Book stores and libraries have shelves of books about end-of-lifecare. In his book Hard Choices for Loving People, Hank Dunnwrites “generations alive today are the first faced with makingsuch difficult choices about potentially life-prolonging medicaldecisions.” 23 He provides guidance to patients and their familieswho must face hard choices about treatment options:“1. Shall resuscitation be attempted?2. Shall artificial nutrition and hydration be utilized?3. Should a nursing home resident or someone ill at home behospitalized?4. Is it time to shift the goal from cure to hospice or comfortcare only?” 23Patients also turn to online resources, such as Five Wishes.According to their web site, “Five Wishes has become America’smost popular living will because it is written in everydaylanguage and helps start and structure important conversationsabout care in times of serious illness.”However, it is important for physicians to note that the documentproduced by Five Wishes does not meet the legal requirements ofthe state of Texas. Patients can complete the booklet as an adjunctto the Texas required forms, but they should be encouraged tosubstitute the Texas forms for the Advance Directive and MedicalPower of Attorney.Physicians can also download Texas forms to distribute to theirpatients. The forms are available at:Texas Medical Association Directive to Physicianshttp://www.texmed.org/Template.aspx?id=64&terms=advanced+directivesTexas Department of State Health Services Out-of-HospitalDo-Not-Resuscitate Orderhttp://www.dshs.state.tx.us/emstraumasystems/dnr.shtmThe Center for Medical Humanities and Ethics has created anonline advance directive completion website, TexasLivingWill.org. 25 The web site guides users through a series of interviewquestions. At the end of the interview, the program compiles thewishes of the participant and produces a complete set of all fouradvance directive documents compliant with the Texas requirements.The forms can be printed or stored in an online advancedirective registry such as U.S. Living Will. 26Risk management considerations1. In 2003, Joseph J. Gallo surveyed physicians to determine ifthey had advance directives. Surprisingly, 64% of the respondentphysicians did. This is more than double the rate ofadvance directives for the general public. 272. Physicians should proactively educate patients and theirfamilies about advance directives and end-of-life issuesbefore they are needed. Discussion and education should bedocumented in the medical record. Making resources andforms available may encourage completion of the advancedirectives.3. Considering end-of-life wishes as part of the patient’s longterm care plan may help remind physicians to periodicallyreview the directive with the patient. For example, this couldbe done as part of an annual exam.4. Ethical issues may arise when a patient with a DNR orderneeds surgery and anesthesia. Suspending a DNR order canbe challenging. The surgeon, anesthesiologist, and primarycare physician should all be available to discuss this with thepatient and family. Addressing the medical reasoning behindthe suspension is very important. From a risk managementperspective, having the conversation and documenting it areequally important, should issues occur at a later date.ConclusionTo help facilitate end-of-life care discussion, the TMA Board ofCouncilors states:“Physicians should educate themselves on the opportunities andresponsibilities provided by state law governing advance directivesand end-of-life care, and1. Should use appropriate opportunities to discuss the issue withtheir patients.2. Physicians caring for the patient in an end-of-life situationshould be open to the opinion and advice of a physician whohas had a discussion with the patient on end-of-life issues anddecisions, even if that physician is not immediately caring forthe patient at the time such end-of-life treatment decisions arise.“10 | the Reporter 2012 Volume 3


cmeACTIVITYSources1. Advance Directives in Texas: Advance Directive Act of 1999Watson, Robert http://digital.library.unt.edu/ark:/67531/metadc5833/2. Facing Death Facts and Figures http://www.pbs.org/wgbh/pages/frontline/facing-death/facts-and-figures/3. www.boston.com Terminally Ill Patients Delay Talk ofHospice Kay Lazar Boston Globe May 26, 20094. www.boston.com Terminally Ill Patients Delay Talk ofHospice Kay Lazar Boston Globe May 26, 20095. www.boston.com Terminally Ill Patients Delay Talk ofHospice Kay Lazar Boston Globe May 26, 20096. Critical Care Nurse Vol 31. No. 5 October 2011 “The GoingHome Initiative: Getting Critical Care Patients Home withHospice7. Health & Safety Code Chapter 166 Advance Directivehttp://www.statutes.legis.state.tx.us/Docs/HS/htm/HS.166.htm8. AMA Code of Medical Ethics http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics.page9. TMA Opinion on End-of-life Care Discussions with Patientshttp://www.texmed.org/Template.aspx?id=392#EOL Care10. Giving Someone a Power of Attorney for Your Health Carehttp://www.americanbar.org/content/dam/aba/uncategorized/2011/2011_aging_hcdec_univhcpaform.authcheckdam.pdfTMLTTEXMEDCongratulations to Sheila Reifle,MD, who won a MacBook Airat the TMLT wine and cheesereception at TexMed. Hope tosee everyone next year!11. http://www.agingwithdignity.org/five-wishes.php12. Texas Hospital Association Advance Directives – TakeCharge of Your Health Care! Put Your Wishes in Writinghttp://www.tha.org/GeneralPublic/AdvanceDirectives/index.asp13. Texas Department of State Health Services http://www.dshs.state.tx.us/emstraumasystems/dnr.shtm#forms14. http://texaslivingwill.org/faq.php15. http://texaslivingwill.org/faq.php16. Texas Medical Board Rule http://www.tmb.state.tx.us/rules/docs/Board_Rules_Effective_12.25.2011.pdf17. American Society of Anesthesiologists www.asahq.org/.../ethical%20guidelines%20for%20the%20anesthesia%20care%20of%20patients.ashx18. Kass-Bartelmes BL, Hughes R, Rutherford MK. Advancecare planning: preferences for care at the end-of-life.Rockville (MD): Agency for Healthcare Research andQuality; 2003 Research in Action Issue #12. AHRQ Pub No.03-001819. Kass-Bartelmes BL, Hughes R, Rutherford MK. Advancecare planning: preferences for care at the end-of-life.Rockville (MD): Agency for Healthcare Research andQuality; 2003 Research in Action Issue #12. AHRQ Pub No.03-001820. Teno JM, Licks S, Lynn J, et al. Do Advance DirectivesProvide Instructions that Direct Care? Journal AmericanGeriatric Society, 1997; 45: 508-12.21. Fetters MD, Churchill L, Danis M. Conflict Resolution at theEnd-of-life Critical Care Medicine 2001; 29(5):921-5.22. Cardiopulmonary Resuscitation on Television – Miraclesand Misinformation By Diem, Lantos, Tulsky New EnglandJournal of Medicine 1996; 334:1578-1582 June 13, 199623. Hard Choices for Loving People By Hank Dunn ISBN978-928560-06-7 Copyright 2009 A&A Publishers, Inc24. http://www.agingwithdignity.org/five-wishes.php25. http://www.texashumanities.org/advance-directives26. http://uslivingwillregistry.com/27. Why Doctors Die Differently’ Ken Murray WSJ http://online.wsj.com/article/SB10001424052970203918304577243321242833962.html?KEYWORDS=why+doctors+die+differently28. Texas Medical Association Board of Councilors http://www.texmed.org/Template.aspx?id=392#EOL Care2012 Volume 3the Reporter | 11


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Asset protection and tax savings for physiciansby Ken H. Vanway, JDOn December 17, 2010, President Obama signed a tax relief lawthat provides a unique, limited-time planning opportunity thatterminates at the end of 2012. The current gift and estate tax-freeexemptions (the amounts that can pass tax-free) and their taxrates are changing.YearThis unique opportunity protects up to $10.24 million from gifttax, estate tax, and lawsuits, regardless of Congress’s future action.How to benefitStep 1 — The husband establishes a special type of “protectedgrantor trust” or “PGT” for wife, designating her as both trusteeand beneficiary. The wife does the same for the husband. Astrustee, each spouse can make investment and distributiondecisions. As beneficiary, each spouse can access the income andthe assets of the trust for his or her lifetime.Step 2 — Each spouse electsto gift assets worth up to $5.12million of separate property tothe trust they created for the otherspouse. If spouses do not currentlyhave separate property, they needto create separate property with acommunity property agreement.Step 3 — There is no gift taxor capital gains tax on this gift.The year following the gift,each spouse files a Form 709Federal Gift Tax Return claiming(preserving) their $5.12 milliongift tax exemption.Step 4 — The trust assets areavailable to the spouse-beneficiaryuntil death, at which timethe value of the trust (includinggrowth) escapes estate tax andpasses to designated beneficiaries.Malpractice and creditor protectionThe PGT is drafted to conform with Section 112.035 of the TexasProperty Code regarding “Spendthrift Trusts.” Under this section,a settlor (or grantor) may create a trust for the beneficiary andcontribute the settlor’s assets and have them be protected as acreditor-proof trust (Spendthrift Trust) and the assets of the trust2012 Volume 3Tax-free gift andestate exemptionMaximum tax rate2012 $5.12 million 35%2013 $1 million 35%Husband createsfor WifePGT for WifeGrantor: HusbandTrustee: WifeBeneficiary: WifeAssets: Up tp $5.12M(tax-free from Grantor)Wife createsfor HusbandPGT for HusbandGrantor: WifeTrustee: HusbandBeneficiary: HusbandAssets: Up tp $5.12M(tax-free from Grantor)should be protected from malpractice claims against either thesettlor or the beneficiary.Advantages• During the spouses’ lifetimes, they enjoy full access to eachother’s trust assets and income.• No capital gains tax on the gift to the trust.• No gift tax on the gift to the trust.• No estate tax at death on the trust assets or their growth.• Trust does not file a separate income tax return. Grantorreports any income or gain on grantor’s personal 1040.• Trust assets are no longer owned by grantor or grantor’sspouse and not subject to malpractice claims.• Spouse of grantor has lifetime access to both the income andthe assets of the trust.Risks• Death — when a spouse dies, the assets in the spouse’sPGT pass to the remainder beneficiaries and are no longeravailable to the grantor-spouse. Protect against this risk withlife insurance on the spouse owned by and payable incometax-free to your PGT.• Divorce — assets are not subject to a divorce proceeding.• Reciprocal Trust Doctrine — an attorney must draft eachPGT with sufficient differences to avoid the ReciprocalTrust Doctrine of creating mirror-image trusts for eachgrantor’s spouse.2012 is the last year for this opportunity to preserve your $5.12million gift and estate tax exemption before it decreases to $1million under the current tax law or is changed by congress.The PGT:• allows you to use your exemption without incurring any giftor capital gains tax;• provides lifetime access to the income and principal of thegifted assets and provides lawsuit protection as a SpendthriftTrust; and• removes the gifted assets from your taxable estate so thatupon death they are not taxed at up to 55% for the federaldeath tax.Remember to work with experienced and knowledgeable legalcounsel when applying this asset protection technique.Ken H.Vanway is board certified in Estate Planning and ProbateLaw — TexasBoard of Legal Specialization. His firm practices inmany areas of estate planning and lawsuit protection. He can bereached at ken@vanway.org.the Reporter | 15


I heard about the Trust Rewardsprogram and signed up rightaway. It’s like a nest egg that willdistribute funds back to me whenI retire, as long as I stay withTMLT. Extra money in my pocketis always welcome.Ray Callas, MDAnesthesiologist in Beaumont, TexasTrust Rewards statements were mailed out in April to enrolled policyholders that showed the amountsthat were allocated to their accounts. For the first quarter, these amounts ranged from $ 250 to $ 15,000.To find out how much you qualify for, call 800-580-8658 extension 5050To enroll in Trust Rewards, fill out the enrollment form on the rightor to learn more about the program, go towww.tmlt.org/trustrewardsRated A (Excellent) by A.M. Best CompaniesThe only medical professional liability insurance provider created and exclusively endorsed by the Texas Medical Association16 | the Reporter 2012 Volume 3


Enrollment Request & Acknowledgment FormPlease fill in all information below. Incomplete forms cannot be processed.First Name ____________________________ MI _____ Last Name ____________________________________Date of Birth (mm/dd/year) ______/______/______ Policy Number(s) ______________________________________________________________________E-mail Address _________________________________ Telephone Number _____________________________As of the date indicated below, I, the undersigned policyholder of Texas Medical Liability Trust (TMLT), hereby:(Please indicate your selection by checking one of the boxes below)o Request to participate in the TMLT Trust Rewards Program.o Decline to participate in the TMLT Trust Rewards Program.If I have requested to participate in the TMLT Trust Rewards Program, I acknowledge and agree that my request may be acceptedor rejected in TMLT’s sole discretion in accordance with the eligibility criteria for participation in the program in effect on or afterthe date hereof. In addition, I acknowledge and agree that my participation in the program will be governed by certain policies andguidelines adopted by TMLT’s Board of Trustees from time to time, including, without limitation, the TMLT Trust Rewards ProgramPlan Document. I hereby acknowledge that I have read the TMLT Trust Rewards Program Plan Document and agree to its terms andconditions and I understand that the TMLT Trust Rewards Program Plan may be amended or terminated in the sole and absolutediscretion of TMLT’s Board of Trustees.Signature ___________________________________________________ Date _________________________Mail Fax EmailTMLT (512) 425-5999 trustrewards@tmlt.orgP.O. Box 160140Austin, TX 78716-0140Customer Service: (512) 425-5050(800) 580-8658 ext. 5050For Company Use OnlyAccepted by ________________________________________________ Date __________________________2012 Volume 3the Reporter | 17


the REPORTERFailure to diagnose meningitisby Louise Walling and Laura Hale Brockway, ELSThe following closed claim study is based on an actual malpractice claim from Texas Medical Liability Trust. This case illustrates howaction or inaction on the part of the physicians led to allegations of professional liability, and how risk management techniques mayhave either prevented the outcome or increased the physician’s defensibility. An attempt has been made to make the material less easy toidentify. If you recognize your own case, please be assured it is presented solely for the purpose of emphasizing the issues of the case.PresentationA 17-year-old boy came to the emergency department (ED) withcomplaints of vomiting, headache, backache, and fever. Thepatient reported that he had been sick for a week and had seenhis family physician. The family physician diagnosed the patientwith a sinus infection and prescribed antibiotics. There was anoutbreak of influenza in the area at the time of the patient’s visitto the ED.Physician actionThe patient’s vital signs were normal, with the exception of atemperature of 102.2 degrees. ED Physician A examined thepatient and the results of the exam were normal. The patient didnot have a stiff neck. There were no x-rays or laboratory testscompleted during this ED visit.The patient was diagnosed with the flu and treated with ketorolac,promethizane, and butorphanol. He was discharged from the EDat 5:50 p.m. with instructions to return that night if the vomiting,headache, and fever did not resolve. He was given prescriptionsfor promethazine, hydrocodone, and oseltamivir.Three days later, the patient returned and was seen by ED PhysicianB. The patient continued to complain of headache andfever. The patient did have a stiff neck. ED Physician B orderedintravenous vancomycin and ceftriaxone. A lumbar puncture wasperformed and the results were consistent with meningitis.The patient was admitted under the care of an internal medicinephysician. A CT scan showed a brain abscess associated withan infection of the ethmoid sinus. A neurosurgeon drained theabscesses, but the patient’s condition deteriorated. He died thefollowing day.However, a chart entry by ED Physician A presented difficultiesfor the defense. ED Physician A documented that he wasdischarging the patient, but if his symptoms did not improveand the patient returned, he would perform a lumbar puncture.The defense was concerned that a jury might believe that EDPhysician A should have performed the lumbar puncture beforedischarging the patient if he was considering meningitis as apossible diagnosis.Risk management considerationsThe defendant physician was criticized for not including meningitisas a possible diagnosis at the first ED visit and for notordering the appropriate tests to confirm or rule out meningitis.One of the greatest challenges for an ED physician is the riskof under-treating or over-treating. When bad outcomes occurand are reviewed retrospectively, other courses of treatmentbecome clear. The patient’s symptoms at the initial ED visit wereproblematic and could have been considered significant. Thismay have led to an earlier diagnosis.DispositionThis case was settled on behalf of ED Physician A. ED PhysicianB, the internal medicine physician, and the hospital also settledtheir cases.Louise Walling can be reached at louise-walling@tmlt.org.Laura Brockway can be reached at laura-brockway@tmlt.org.Physicians use TrendsMD toAllegationsA lawsuit was filed against ED Physician A alleging failure toorder a lumbar puncture and negligence in diagnosing the patientwith the flu. ED Physician B, the internal medicine physician,and the hospital were also sued.Legal implicationsThe plaintiff’s expert argued that ED Physician A should haveperformed a lumbar puncture given the patient’s symptoms offever, headache, and vomiting. Conversely, the defense arguedthat it was within the standard of care for an ED physicianto diagnose a patient with complaints of fever, vomiting, andheadache with the flu.Join the dialogue on www.TrendsMD.com18 | the Reporter 2012 Volume 3


closed claimSTUDIESFailure to diagnose pneumoniaby Louise Walling and Laura Hale Brockway, ELSThe following closed claim study is based on an actual malpractice claim from Texas Medical Liability Trust. This case illustrates howaction or inaction on the part of the physicians led to allegations of professional liability, and how risk management techniques mayhave either prevented the outcome or increased the physician’s defensibility. An attempt has been made to make the material less easy toidentify. If you recognize your own case, please be assured it is presented solely for the purpose of emphasizing the issues of the case.PresentationA 93-year-old woman was admitted to a skilled nursing facility,Nursing Center 1. While at this facility, she had a chest x-ray torule out pneumonia. The chest x-ray showed the presence of a“pulmonary process consistent with pneumonia.” The radiologistrecommended a follow-up chest x-ray to correlate her clinicalsymptoms. The radiologist’s report was faxed to the patient’sprimary care physician on February 6.Physician actionOn February 27, the patient was moved to another skilled nursingfacility, Nursing Center 2, at the request of her family. The chestx-ray from February 6 was not forwarded to Nursing Center 2.The patient was assigned to a new primary care physician, whoexamined her on February 27. He documented that she wastaking psychiatric medications and noted “refer back to psychiatrywhen possible” in the medical record. There was no mentionof the previous chest x-ray or any pulmonary complaints. OnFebruary 29, lab values came back as WBC 18.4 and neutrophil% 86.8.On March 1, the patient began complaining of shortness ofbreath. The primary care physician’s nurse practitioner wascontacted. She requested a chest x-ray and ordered lab work.The nurse practitioner saw the patient on March 3 and noted thepatient had secretions. The patient was also worried about herbreathing which was worse at night. The nurse practitioner madeno mention of the results of the chest x-ray that she had ordered.A chest x-ray report dated March 3 described a white-out of theleft lung. The differential diagnosis listed effusion, atelectasis, orpneumonia. While there is a note over the fax machine at NursingFacility 2 to fax all reports to the primary care physician’s office,nursing facility staff did not fax the x-ray report to the office. Thelabs showed severe malnutrition with an albumin of 1.9 (normal3.4-4.8). The CBC showed an elevated WBC, 19.2 with a left shift.The primary care physician evaluated the patient on March 5.He was aware that the chest x-ray had been ordered, but hedid not note the results in the chart. The primary care physicianlater testified that the report was not in the file on that date.He expected that when the report came in, it would be faxedto his office.On March 11, the nurse practitioner ordered labs and the resultswere WBC 20.8 and neutrophil % 93.5.On March 18, the patient was admitted to a local hospital dueto shortness of breath. She was found to have opacification ofone hemithorax. The primary care physician documented that hediscussed the patient’s condition with a pulmonologist.On March 19, the primary care physician documented thefollowing: “x-ray from 03-03 brought to me that showed opacificationof her left hemithorax as well. I had not seen it earlier,and do not have a record of it earlier. Staff at [nursing facility]did seek and find a cxr done before she came to [nursing facility],which showed mild cardiomegaly and a left lower lobe infiltrateor atectasis or effusion.” The primary care physician noted onMarch 20 that he discussed the chest x-rays with the family andnoted that the patient was awaiting an open thoracotomy for aloculated left pleural effusion or empyema.The patient did well after the surgical procedure. She was on thefloor awaiting discharge to a skilled nursing facility when shecoded. She was resuscitated, but coded again. She died on April 11.AllegationsLawsuits were filed against the patient’s primary care physicianand his nurse practitioner. Nursing Facility 1 and Nursing Facility2 were also sued.Legal implicationsPhysicians who reviewed this case were critical of all the defendants.Even though the nurse practitioner ordered the chest x-ray,the primary care physician had several opportunities to follow upand review the results. Additionally, if the nursing home had sentthe x-ray report to the primary care physician’s office, the reportlikely would have been acted on.The patient’s lab values continued to worsen, but neither theprimary care physician nor the nurse practitioner responded tothose lab values.Risk management considerationsTimely review and appropriate follow up on all pending testresults is a prudent process for physicians to follow. If othersystems fail, (such as those at Nursing Facility 2) timely reviewcontinued on page 162012 Volume 3the Reporter | 19


the REPORTERTexas Medical Liability TrustP.O. Box 160140Austin, TX 78716-0140800-580-8658 or 512-425-5800E-mail: laura-brockway@tmlt.orgwww.tmlt.orgEditorial committeeCharles R. Ott, Jr., President and CEOJill McLain, Executive Vice President, Claim Operations & Risk ManagementDon Chow, Senior Vice President, Sales & Business DevelopmentSue Mills, Senior Vice President, Claim Operations & Risk ManagementPre-sorted StandardU.S. PostagePAIDPermit No. 90Austin, TexasEditorLaura Hale Brockway, ELSAssociate EditorLouise WallingStaffWilliam MalamonKatie StottsGraphic DesignerKaren Hardwickthe Reporter is published by Texas Medical Liability Trust as an informationand educational service to TMLT policyholders. The information andopinions in this publication should not be used or referred to as primarylegal sources or construed as establishing medical standards of care forthe purposes of litigation, including expert testimony. The standard ofcare is dependent upon the particular facts and circumstances of eachindividual case and no generalizations can be made that would apply toall cases. The information presented should be used as a resource,selected and adapted with the advice of your attorney. It is distributedwith the understanding that neither Texas Medical Liability Trust or TexasMedical Insurance Company is engaged in rendering legal services.© Copyright 2012 TMLTdiagnose pneumonia ... continued from page 15 Border health caucus ... continued from page 4of the test ordered and the subsequent course of treatment canproceed without delay. Physicians are encouraged to write thedate of review, their initials, and any follow up orders to verifytheir care.When there is more than one provider from a practice seeinga patient, continuity of care can be challenging. In this case,the defendant physician had a responsibility to supervise hisemployed nurse practitioner who ordered the initial chest x-rayand the lab tests, yet failed to follow up on the abnormal results.Written patient care protocols can assist in defining appropriateactions for staff to follow to prevent important issues from beingoverlooked. The supervising physician and the nurse practitionercan review the protocols periodically to ensure the process isbeing followed.DispositionThe cases against the primary care physician, the nurse practitioner,and Nursing Facility 2 were settled. The case againstNursing Facility 1 was dismissed.Louise Walling can be reached at louise-walling@tmlt.org.Laura Brockway can be reached at laura-brockway@tmlt.org.• make Medicare more sustainable and better serve seniorsand people with disabilities.The BHC also started the Legislator Preceptor Program, inwhich physicians take legislators on a tour of the border’shealth care infrastructure. The goal is to educate legislatorson the issues affecting the health care system and patients inand around the border.In its efforts to improve health care in the border area, TMLTcontinues to partner with the BHC to support programs like theAnnual Border Health Conference. The Trust is also supporting aseries of town hall meetings where TMLT’s CEO and President,Charles R. Ott will visit the border area. Mr. Ott plans to discusschallenges that the BHC is facing and how TMLT can help BHCaddress these challenges.Together, TMLT and the BHC worked hard to achieve tortreform in Texas and will continue to work to meet the uniqueneeds of border-area physicians. TMLT is proud to have a strongrelationship with such a singular and valued member of the Texasmedical community. As Luis Benavides, MD, says, “Our story onthe border is incomplete without TMLT. It is up to our leaderstoday and tomorrow to remember this vital connection and tonurture it.”20 | the Reporter 2012 Volume 3

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