- Email: [email protected]
Where to declare poor nursing home care
SURGICAL ETHICS CHALLENGES James W. Jones, MD, PhD, MHA, Section Editor
Where to declare poor nursing home care James W. Jones, MD, PhD, MHA, and Laurence B. McCullough, PhD, Houston, Tex You have been called to the emergency room to evaluate an elderly nursing home patient sent for consultation who has ischemic gangrene of the right foot. The patient has vasculopathy, has diabetes, and suffers from moderately advanced dementia. The leg ischemia has been severe and the patient had complained repeatedly but was largely ignored. Both heels have ulcerations. A primary care physician usually visits monthly and charged Medicare for a comprehensive visit 2 weeks ago. The facility nurse sent the patient for medical evaluation after his moaning kept other residents from sleeping. He is known only to have an elderly distant cousin. This type of situation has been seen repeatedly from this particular nursing home. What should you do? A. B. C. D. E.
Report the physician to the state medical board. Do nothing. You will waste your time and accomplish nothing. Encourage the cousin to sue. Report the nursing home to the appropriate state agency. Call the local newspaper.
Time is the great teacher but unfortunately it kills all its pupils. Berlioz
Too much time passed before the patient was referred for treatment. Time is so ubiquitous and apparent that its real meaning becomes an unappreciated backdrop for reality unfolding. Time is consciousness of successive events; it gives us irreversible causality allowing the predictability of the natural history of disease and its interruption by treatment. Almost universally, diseases are better treated earlier (with fewer events) than later because disease is by definition untoward events. In the present case, too many events passed before the visit to the emergency room (ER). The worms are out of their can. The present case emphasizes the necessity for physician involvement in the health of their community whenever it intersects with medical professionalism extended beyond the physician-patient relationship. The professional code of conduct of the American College of Surgeons and its follow-up elaboration declares a surgeon’s societal responsibilities in regards to issues of justice and cost containment.1,2 There are responsibilities to other patients being treated in your institution,3 economic issues about how you might affect community care,4 and becoming involved From The Center for Medical Ethics and Health Policy, Baylor College of Medicine. Competition of interest: none. Correspondence: James W. Jones, MD, PhD, MHA, 31 La Costa Dr, Montgomery, TX 77356 (e-mail: [email protected]). 0741-5214/$36.00 Copyright © 2009 by the Society for Vascular Surgery. doi:10.1016/j.jvs.2009.07.003
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in preventative ethics to correct or prevent future poor care.5,6 Thus, medical professionalism extends beyond patients for which the physician has direct responsibility to all patients’ care of which the physician has direct knowledge. This is a matter of co-fiduciary responsibility of all physicians to improve the quality of medical care for current and future patients.7 Co-fiduciary responsibility for patient care outside of one’s practice, thus, does not default entirely to public health officials. Beyond the surveillance of authorities, individuals have civic responsibilities to upright wrongs when encountered, especially in one’s professional life. Cofiduciary responsibility falls directly on surgeons when they are called to see a patient with increased physical or social vulnerability. This includes the very young, the cognitively impaired or mentally ill, the politically weak, such as the homeless, and the very old, especially those with multiple morbidities, as in the present case. Our surgeon has a co-fiduciary responsibility to this patient, shared with the nursing home and its visiting physician. It should be noted that the surgeon’s co-fiduciary responsibility decreases inversely as the geographic distance increases, because the ability to affect change diminishes and moral circumstances differ in different locations. Looking retrospectively and applying the principle of an irreversibility threshold, it is easy to assume that the nursing home’s visiting physician should have noticed the problem and taken action. But a lot can happen in 2 weeks with vascular disease. What is clear now to a vascular specialist may not have been so 2 weeks before. Most nursing home residents have vascular disease that will never require surgery. Many are immobile or have contraindicat-
JOURNAL OF VASCULAR SURGERY Volume 50, Number 4
ing co-morbidities, or both. And the all-important information from their medical history to determine urgency is often unreliable. Uncertainty excludes option A. To do nothing when a preventable general health care problem is identified violates co-fiduciary responsibility and therefore medical professionalism. Requiring certainty of an action in order to act is to fetter actions, even those absolutely necessary, and is a frequently used but ethically unacceptable excuse. In societal dealings, we regularly have less than total control, which does not limit our professional duties. Option B is the least desirable option. As we have noted in previous articles, the legal profession, despite churning relentlessly, as it consumes billions and billions, does little to improve medical care.8 Its dismal lack of success in medical malpractice parallels the legal system’s success in the “drug wars.” It is likely that discontinuance of legal efforts in both would improve the situations. Encouraging a distant cousin to sue would be calling forth the Basilisk, who kills with his breath, for help. Likewise, the news media, fully ensconced in the age of outrage stoked by a 24-hours news cycle, frequently does more harm than good as they discharge accusations in every direction. Thus, options C and E are out, because neither implements co-fiduciary responsibility in an effective fashion. One unmentioned alternative would be to discuss the problem sensed with this particular nursing home’s lack of health surveillance with the nursing home management and attempt to educate the attending physician and nurse. We did not include this as a possible option because of its specious attractiveness despite lack of feasible success. You are knowledgeable about only a single segment of the scope of geriatric disease. What about the cardiac, gastrointestinal, dermatologic, dental, and other aspects of care? Will you educate about them as well? If you just warn the nursing home management, what are the prospects for a multitude of unnecessary ER visits, or worse, what about future surveillance when they refer such cases elsewhere, which is more likely? Do you know the standards nursing homes should meet? Also, consider the frequency of personnel changes. Your involvement would be limited and ineffectual. The determination and resolution of the nursing home’s lack of timely care is best served in this instance by
Jones and McCullough 935
state regulatory agencies. These state agencies are the Better Business Bureaus, with jagged teeth, for nursing homes. Included among each state’s standards for medical care, are rights and responsibilities for nursing home patient’s care, easily found on the Internet. Texas has a bill of 21 rights of nursing home patients.9 Those pertinent to our case include: ● ●
●
F-328: Residents special medical needs (injections, colostomy, prostheses, foot care) must be met; F-353: The facility must provide sufficient staff to meet resident needs and maintain or attain the highest practicable physical, mental, and social well-being; and F-354: There must be a registered nurse at the facility 8 hours a day, 7 days a week.
Co-fiduciary responsibility for patients sometimes creates an ethical obligation of physicians to act directly, for the benefit of patients. At other times, when the scale of the problem is potentially large and when others have the expertise and responsibility to act, the physician’s cofiduciary responsibility is to see to it that these other parties are informed and then take action as they are charged to do, in this case, under statutory and regulatory law. Option D discharges the surgeon’s co-fiduciary responsibility to the patients in this nursing home. These patients have come full circle, having returned to the defenselessness of childhood and deserving the same protections. After all, we each are on the same conveyer belt. REFERENCES 1. Barry L, Blair PG, Cosgrove EM, Cruess RL, Cruess SR, Eastman AB, et al. One year, and counting, after publication of our ACS “Code of Professional Conduct.” J Am Coll Surg 2004;199:736-40. 2. Professionalism ATFo. Code of professional conduct. J Am Coll Surg 2003;197:603-4. 3. Jones JW, McCullough LB. Ethics of over-scheduling: when enough becomes too much. J Vasc Surg 2007;45:635-6. 4. Jones JW, McCullough LB, Richman BW. Ethics of the new economic credentialing: conflicted leadership roles. J Vasc Surg 2005;41:366-8. 5. Jones JW, McCullough LB, Richman BW. Who should protect the public against bad doctors? J Vasc Surg 2005;41:907-10. 6. Jones JW, McCullough LB, Richman BW. What to tell patients harmed by other physicians. J Vasc Surg 2003;38:866-7. 7. McCullough LB. A basic concept in the clinical ethics of managed care: physicians and institutions as economically disciplined moral cofiduciaries of populations of patients. J Med Philos 1999;24:77-97. 8. Jones JW, McCullough LB, Richman BW. From premiums to payouts: who’s behind the malpractice crisis, anyway? J Vasc Surg 2006;43:635-8. 9. Nursing homes. Vol. 2009. Austin: Texas Attorney General, 2009.
Where to declare poor nursing home care James W. Jones, MD, PhD, MHA, and Laurence B. McCullough, PhD, Houston, Tex You have been called to the emergency room to evaluate an elderly nursing home patient sent for consultation who has ischemic gangrene of the right foot. The patient has vasculopathy, has diabetes, and suffers from moderately advanced dementia. The leg ischemia has been severe and the patient had complained repeatedly but was largely ignored. Both heels have ulcerations. A primary care physician usually visits monthly and charged Medicare for a comprehensive visit 2 weeks ago. The facility nurse sent the patient for medical evaluation after his moaning kept other residents from sleeping. He is known only to have an elderly distant cousin. This type of situation has been seen repeatedly from this particular nursing home. What should you do? A. B. C. D. E.
Report the physician to the state medical board. Do nothing. You will waste your time and accomplish nothing. Encourage the cousin to sue. Report the nursing home to the appropriate state agency. Call the local newspaper.
Time is the great teacher but unfortunately it kills all its pupils. Berlioz
Too much time passed before the patient was referred for treatment. Time is so ubiquitous and apparent that its real meaning becomes an unappreciated backdrop for reality unfolding. Time is consciousness of successive events; it gives us irreversible causality allowing the predictability of the natural history of disease and its interruption by treatment. Almost universally, diseases are better treated earlier (with fewer events) than later because disease is by definition untoward events. In the present case, too many events passed before the visit to the emergency room (ER). The worms are out of their can. The present case emphasizes the necessity for physician involvement in the health of their community whenever it intersects with medical professionalism extended beyond the physician-patient relationship. The professional code of conduct of the American College of Surgeons and its follow-up elaboration declares a surgeon’s societal responsibilities in regards to issues of justice and cost containment.1,2 There are responsibilities to other patients being treated in your institution,3 economic issues about how you might affect community care,4 and becoming involved From The Center for Medical Ethics and Health Policy, Baylor College of Medicine. Competition of interest: none. Correspondence: James W. Jones, MD, PhD, MHA, 31 La Costa Dr, Montgomery, TX 77356 (e-mail: [email protected]). 0741-5214/$36.00 Copyright © 2009 by the Society for Vascular Surgery. doi:10.1016/j.jvs.2009.07.003
934
in preventative ethics to correct or prevent future poor care.5,6 Thus, medical professionalism extends beyond patients for which the physician has direct responsibility to all patients’ care of which the physician has direct knowledge. This is a matter of co-fiduciary responsibility of all physicians to improve the quality of medical care for current and future patients.7 Co-fiduciary responsibility for patient care outside of one’s practice, thus, does not default entirely to public health officials. Beyond the surveillance of authorities, individuals have civic responsibilities to upright wrongs when encountered, especially in one’s professional life. Cofiduciary responsibility falls directly on surgeons when they are called to see a patient with increased physical or social vulnerability. This includes the very young, the cognitively impaired or mentally ill, the politically weak, such as the homeless, and the very old, especially those with multiple morbidities, as in the present case. Our surgeon has a co-fiduciary responsibility to this patient, shared with the nursing home and its visiting physician. It should be noted that the surgeon’s co-fiduciary responsibility decreases inversely as the geographic distance increases, because the ability to affect change diminishes and moral circumstances differ in different locations. Looking retrospectively and applying the principle of an irreversibility threshold, it is easy to assume that the nursing home’s visiting physician should have noticed the problem and taken action. But a lot can happen in 2 weeks with vascular disease. What is clear now to a vascular specialist may not have been so 2 weeks before. Most nursing home residents have vascular disease that will never require surgery. Many are immobile or have contraindicat-
JOURNAL OF VASCULAR SURGERY Volume 50, Number 4
ing co-morbidities, or both. And the all-important information from their medical history to determine urgency is often unreliable. Uncertainty excludes option A. To do nothing when a preventable general health care problem is identified violates co-fiduciary responsibility and therefore medical professionalism. Requiring certainty of an action in order to act is to fetter actions, even those absolutely necessary, and is a frequently used but ethically unacceptable excuse. In societal dealings, we regularly have less than total control, which does not limit our professional duties. Option B is the least desirable option. As we have noted in previous articles, the legal profession, despite churning relentlessly, as it consumes billions and billions, does little to improve medical care.8 Its dismal lack of success in medical malpractice parallels the legal system’s success in the “drug wars.” It is likely that discontinuance of legal efforts in both would improve the situations. Encouraging a distant cousin to sue would be calling forth the Basilisk, who kills with his breath, for help. Likewise, the news media, fully ensconced in the age of outrage stoked by a 24-hours news cycle, frequently does more harm than good as they discharge accusations in every direction. Thus, options C and E are out, because neither implements co-fiduciary responsibility in an effective fashion. One unmentioned alternative would be to discuss the problem sensed with this particular nursing home’s lack of health surveillance with the nursing home management and attempt to educate the attending physician and nurse. We did not include this as a possible option because of its specious attractiveness despite lack of feasible success. You are knowledgeable about only a single segment of the scope of geriatric disease. What about the cardiac, gastrointestinal, dermatologic, dental, and other aspects of care? Will you educate about them as well? If you just warn the nursing home management, what are the prospects for a multitude of unnecessary ER visits, or worse, what about future surveillance when they refer such cases elsewhere, which is more likely? Do you know the standards nursing homes should meet? Also, consider the frequency of personnel changes. Your involvement would be limited and ineffectual. The determination and resolution of the nursing home’s lack of timely care is best served in this instance by
Jones and McCullough 935
state regulatory agencies. These state agencies are the Better Business Bureaus, with jagged teeth, for nursing homes. Included among each state’s standards for medical care, are rights and responsibilities for nursing home patient’s care, easily found on the Internet. Texas has a bill of 21 rights of nursing home patients.9 Those pertinent to our case include: ● ●
●
F-328: Residents special medical needs (injections, colostomy, prostheses, foot care) must be met; F-353: The facility must provide sufficient staff to meet resident needs and maintain or attain the highest practicable physical, mental, and social well-being; and F-354: There must be a registered nurse at the facility 8 hours a day, 7 days a week.
Co-fiduciary responsibility for patients sometimes creates an ethical obligation of physicians to act directly, for the benefit of patients. At other times, when the scale of the problem is potentially large and when others have the expertise and responsibility to act, the physician’s cofiduciary responsibility is to see to it that these other parties are informed and then take action as they are charged to do, in this case, under statutory and regulatory law. Option D discharges the surgeon’s co-fiduciary responsibility to the patients in this nursing home. These patients have come full circle, having returned to the defenselessness of childhood and deserving the same protections. After all, we each are on the same conveyer belt. REFERENCES 1. Barry L, Blair PG, Cosgrove EM, Cruess RL, Cruess SR, Eastman AB, et al. One year, and counting, after publication of our ACS “Code of Professional Conduct.” J Am Coll Surg 2004;199:736-40. 2. Professionalism ATFo. Code of professional conduct. J Am Coll Surg 2003;197:603-4. 3. Jones JW, McCullough LB. Ethics of over-scheduling: when enough becomes too much. J Vasc Surg 2007;45:635-6. 4. Jones JW, McCullough LB, Richman BW. Ethics of the new economic credentialing: conflicted leadership roles. J Vasc Surg 2005;41:366-8. 5. Jones JW, McCullough LB, Richman BW. Who should protect the public against bad doctors? J Vasc Surg 2005;41:907-10. 6. Jones JW, McCullough LB, Richman BW. What to tell patients harmed by other physicians. J Vasc Surg 2003;38:866-7. 7. McCullough LB. A basic concept in the clinical ethics of managed care: physicians and institutions as economically disciplined moral cofiduciaries of populations of patients. J Med Philos 1999;24:77-97. 8. Jones JW, McCullough LB, Richman BW. From premiums to payouts: who’s behind the malpractice crisis, anyway? J Vasc Surg 2006;43:635-8. 9. Nursing homes. Vol. 2009. Austin: Texas Attorney General, 2009.