Who Says You're Dead? Read online

  Ethicist Barron Lerner once described a case similar to this one in a New York Times column. In that case, which occurred at the University of Toronto, the doctors chose to disclose the discovery, which the family—after initial “shock and distress”—was able to accept. The patient’s daughter reported being grateful to learn of the misattributed paternity from the medical staff, rather than later, under different circumstances. Other families might respond with less equanimity. How hospitals should handle these cases of unexpected nonpaternity remains controversial. Some hospitals now have patients and family members sign disclaimers prior to organ-transplant compatibility testing, which specifically state that discoveries of false paternity resulting from the testing will not be disclosed, while others continue to believe that they have an ethical obligation to share such discoveries.

  2

  “How Many of Your Patients Survive?”

  Dr. Dolittle is the chief of neurosurgery at a well-respected community hospital. A retired couple, Bonnie and Stan, arrive at the emergency room. Stan is complaining of the worst headache of his life—and a brain scan reveals he is suffering from an aneurysm that requires surgery within twelve to twenty-four hours or he will likely die. Bonnie asks Dr. Dolittle what the success rate is for the surgery, and he tells her, truthfully, that 60 percent of his patients survive the procedure. Dr. Dolittle knows that at a hospital twenty minutes away by ambulance, another doctor, Dr. Quincy, has a surgical survival rate of 85 percent.

  Should Dr. Dolittle volunteer this information to Stan and Bonnie?

  Reflection: Informed Consent

  Informed consent is one of the foundations of modern Western medicine. In order for patients to make meaningful decisions about their healthcare, they have to know the potential risks and benefits of each of these decisions. In fact, being able to state the risks and benefits of a given medical intervention is one of the requirements for determining whether a patient is mentally sound enough to make his own choices. At the same time, physicians are not expected to outline all of the risks of a particular intervention. For example, during an appendectomy, it is theoretically possible that a patient might fall off the operating table, hit her head, and suffer brain damage—but the chances are rather remote, so this is not a part of the standard informed consent for the procedure.

  The truth is that, with regard to cognitively intact patients, “informed consent” is actually a misnomer. It does not matter whether the patient actually understood enough to consent meaningfully; what matters is that the physician provided sufficient information for a “reasonable” or ordinary person to have understood the risks and benefits. Some plastic surgeons even record their informed consent process on video, so that in cases of alleged malpractice they can prove to a jury precisely what they said. Why such an objective “reasonable person” yardstick? Because a subjective approach (i.e., one that asks whether this particular patient actually understood the risks) would open the door to second-guessing and even outright perjury by the patient at a future malpractice trial. Hindsight is twenty-twenty. Football fans understand how easy it is to play Monday morning quarterback. Unfortunately, even with rigorous standards, informed consent often fails to serve patients’ needs. Medical historian David Rothman reported in 2006 that “anywhere from 25 to 50 percent of patients and subjects do not understand what they have agreed to.”

  Physicians are generally not expected to share the success rates of other providers—although there might be an exception at the extremes: a physician who has never performed the operation before, for instance, might be expected to reveal this information to a patient. However, society generally places the burden on the patient to “shop around” or to get a second opinion. If Bonnie had asked Dr. Dolittle directly whether other physicians could perform the aneurysm repair better, he would be wrong to lie point-blank, but he could probably get away with simply telling her that he cannot speak for the success rates of other providers.

  One should note that an alternative rule, which would compel physicians to share their comparative success rates, might have the unintended consequence of steering traffic toward a handful of first-rate providers. Over time, fewer surgeons would master the technique for aneurysm repair, and overall access to quality care might be reduced. Success rates can also reflect the patient population served, so compelling surgeons to share their outcome data might lead them to cherry-pick their patients—making it more difficult for the sickest patients to find providers. Finally, in many cases, sharing such information would help only wealthy patients: If a patient lives in poverty in a housing project in New York City, being told that the success rate for treating a particular condition is better at the Mayo Clinic in Minnesota may not prove very helpful. If the patient cannot get to the Mayo Clinic, this knowledge will not help him medically, and could harm him psychologically.

  3

  “Please Don’t Tell Anyone about My Crime”

  During a routine session with his longtime psychiatrist, Dr. Sarah Cooper, thirty-five-year-old Marcel confesses to a crime from his college years: While arguing with a neighbor, Olivia, over loud music, he lost his temper and shoved her. Olivia fell down Marcel’s kitchen staircase and broke her neck—dying instantly. Marcel panicked and buried the body in a state park many hours away. When pressed by Dr. Cooper, he reveals the precise location. The body has never been found, and Olivia remains listed as a missing person.

  Dr. Cooper believes Marcel, who is now happily married and has two young children, when he swears the death was accidental. Marcel is unwilling, however, under any circumstances, to convey this information to the authorities. He forbids Dr. Cooper from doing so as well.

  Dr. Cooper looks up the case on the internet and discovers that Olivia’s parents continue to hold out hope that she remains alive. Each year, they record a video plea for her safe return that is broadcast on the local television station. Dr. Cooper realizes that merely informing the family or the authorities anonymously that Olivia is dead will not resolve their uncertainty and will perhaps raise even more questions. Yet she fears that notifying them of the location of the body might lead them to forensic evidence that will incriminate Marcel.

  Should Dr. Cooper reveal the location of Olivia’s body to the woman’s family and/or the police?

  Reflection: Doctor-Patient Confidentiality

  Confidentiality is essential to the relationship between physicians and patients. Reliance on confidentiality proves especially significant in patient interactions with mental health professionals, such as psychiatrists and psychologists. If a patient is unwilling to speak candidly with his psychiatrist for fear of disclosure, the result may be misdiagnosis or inappropriate treatment. These general principles are enshrined in the Health Insurance Portability and Accountability Act of 1996, better known as HIPAA, but they date back to the Hippocratic oath and many other professional creeds. Although federal law and professional guidelines generally leave some limited opening for breaching confidentiality in pursuit of the general welfare, even these exceptions have narrowed in recent years. In the landmark case of Jaffee v. Redmond (1996), the US Supreme Court established a “psychotherapist-patient privilege,” which generally affords patients the right to prevent their psychiatrists and psychologists from testifying against them in court. In fact, the protections from psychiatrist-patient confidentiality are generally much stronger and broader than those that apply to other physicians.

  Many states follow what is known as “the Tarasoff rule,” which not only allows, but requires, psychiatrists (and often other mental health professionals) to breach confidentiality to warn and protect potential victims of future crimes. At least one state, Iowa, in a high-profile arson case, extended this duty to include the protection of private property. A 1994 study by Marcus J. Goldman and Thomas C. Gutheil revealed that many psychiatrists believe a similar legal duty exists to report past crimes, but this is not the case. In fact, doing so under some circumstances opens the psychiatrist up to ma
lpractice liability. The Principles of Medical Ethics of the American Psychiatric Association (APA) limit the permissibility of such breaches to situations in which the psychiatrist is protecting the community from “imminent danger.” These circumstances might include, arguably, a case where an innocent third party has been convicted of the patient’s prior crime.

  At least one leading psychiatric ethicist, Paul Appelbaum, has raised the possibility that the exception might also apply when the victim is suffering substantially as a result of the patient’s failure to confess. It is not much of a stretch to apply a similar exception in the case of Marcel and Olivia, when the victim’s family appears to be suffering. However, such breaches run the risk of causing larger damage: mental health patients may then hold back information about past criminal acts whose disclosure is vital to their treatment. Such well-founded mistrust would damage the patients’ own well-being without any clear benefit to their victims or their victims’ families—as psychiatrists would never hear many patient confessions at all.

  4

  “Please Don’t Put It in My Chart”

  Carrie is a twenty-five-year-old woman who lives with a violent male partner, Charles. She arrives at the emergency room of her local community hospital with a black eye and a broken wrist. After some coaxing, she tells the physician on duty, Dr. Zira, that her partner is responsible for her injuries. Dr. Zira documents this in the medical record.

  Several hours later, once her wrist has been cast and she is ready for discharge, Carrie summons Dr. Zira back to her bedside. “Please don’t put anything in my chart about Charles hurting me,” she says. “He has friends who work at this hospital. If they find out what I told you, it will get back to him and he’ll hurt me again.”

  There is an “override” in the hospital’s electronic medical record (EMR) system to remove information that is both inaccurate and could be dangerous (such as a wrong blood type) from a patient’s chart.

  Should Dr. Zira use this method to remove this accurate information from Carrie’s chart?

  Reflection: Privacy and Medical Records

  Prior to the 1970s, many healthcare professionals looked askance at anyone requesting access to their own medical records—fearing that patients would generally fail to understand the contents. Concerns over litigation, the loss of medical mystique, and convenience likely played a role in such secrecy as well. Since 1996, HIPAA has guaranteed patients the right to view their medical charts within thirty days. Many state laws require even more immediate access. The federal statute also gives patients the opportunity to append a “statement of disagreement” to their medical record if they object to any of its contents. Such statements may prove of value when there is a genuine dispute over facts. Yet in cases where the patient’s concerns are for privacy, rather than accuracy, such a statement is of little value. As a general rule, hospitals limit employee access to medical records to individuals directly involved in a patient’s care. However, policing access can prove challenging, especially in the era of EMRs, and enforcement often occurs only after the fact. Firing a worker who illegally accessed and shared private information may prove little comfort to a patient whose secrets have already been divulged.

  In Carrie’s scenario, she appears to have sincere concerns for her personal safety; she is frightened that her partner’s friends may access her records without authority and reveal the contents to him. She may also fear that the secrets she related to Dr. Zira could be used against Charles in court—which is likely permissible in certain states and under federal evidence rules. Many hospitals allow celebrity patients, and others with compelling needs, to register under aliases. Some rogue hospital employees have learned this fact the hard way, when they have illegally accessed the charts of famous patients—like Bill Clinton or Farrah Fawcett—only to discover that they have accessed “fake” records instead. It is not clear whether Dr. Zira’s hospital offers such an option to patients like Carrie, or if it did, whether doing so would genuinely protect her from the staff members whom she fears. Few, if any, hospitals allow patients to opt out of the EMR entirely, and all physicians are required by law to keep records of patient encounters. In fact, failure to keep an adequate medical record is grounds for losing one’s license in many states.

  The purpose of the medical record is to be accurate and comprehensive, because a more complete record will lead to better patient care. One can imagine other patients requesting that providers delete information related to drug use, mental health diagnoses, or reproductive services from their records—but also the serious consequences that might result from such willful omissions. Not knowing that a patient takes psychiatric medications, for instance, might lead an emergency room physician to prescribe an incompatible remedy that could prove lethal. While physicians are wise to display some discretion in what they document, such as excluding a gratuitous insult that the patient offers about his mother-in-law, there are significant consequences to excluding medically pertinent data. In Carrie’s case, one can easily envision her, at a future date, needing evidence of her partner’s conduct in a custody battle or when seeking an order of protection. Or she might show up at the hospital unconscious with worse injuries the following week, and not knowing her abuse history, the staff might leave her with Charles unsupervised—affording him an opportunity to hurt her again. Unfortunately, either honoring or refusing Carrie’s request might pose a significant future risk to her well-being.

  5

  When the President Has a Secret

  A retired psychiatrist, Dr. Eckleburg, recalls treating one of the major party nominees for US president, now in his late fifties, when the psychiatrist was in training and the politician was in his early twenties. Dr. Eckleburg vividly remembers the case because the politician’s father was a prominent elected official and the patient had attempted suicide. It was the patient’s second suicide attempt, and he was diagnosed with manic depression (now better known as bipolar disorder). To Dr. Eckleburg’s surprise, the candidate releases his “entire” medical record to the public as part of his campaign, and there is no mention of any suicide attempts, mental illness, or the psychiatric medications generally prescribed to prevent patients with bipolar disorder from relapsing.

  Needless to say, Dr. Eckleburg is concerned that the future leader of the free world may have a serious untreated psychiatric illness, or that he is a liar. At the same time, he is reluctant to break the candidate’s medical confidentiality, especially as he has not seen him in thirty years.

  Should Dr. Eckleburg leak the politician’s psychiatric history to the media?

  Reflection: Public Disclosure

  No law requires candidates for the presidency to release medical information to the public. In fact, for much of US history, the health of the occupants of the Oval Office was regarded as entirely a private matter. Significant medical conditions, some of them debilitating, remained concealed from voters. Historians say that Woodrow Wilson likely suffered strokes in 1896 and 1906, the latter of these six years before assuming the presidency and thirteen before a more severe stroke rendered him incapacitated for much of his final two years in office; Dwight Eisenhower struggled with Crohn’s disease starting in his thirties; John F. Kennedy battled Addison’s disease and chronic pain. A 2006 study by Duke University psychiatrist Jonathan Davidson and others suggests that eighteen US presidents between 1776 and 1974—49 percent—met the criteria for the diagnosis of a psychiatric disorder. While President Eisenhower did release some health information to the media, the health of political candidates first became a major national issue when Senator Thomas Eagleton of Missouri, the running mate of 1972 Democratic presidential nominee George McGovern, withdrew from the ticket after he admitted that he had undergone electroshock therapy for depression.

  Over the last few decades, presidential candidates have released their medical records to varying degrees, most notably the extensive disclosure of medical records by Republican candidate John McCain in 2000 and 2008. Yet
at least one serious contender for the presidency, Democratic candidate Paul Tsongas, overtly deceived the public when declaring himself cancer-free in 1992. In fact, a bone marrow transplant had failed to cure the non-Hodgkin’s lymphoma, which ultimately killed the former senator in 1997.

  Although, as noted previously, physicians generally have a fiduciary duty to protect the confidences of patients, no duties are truly absolute. Extraordinary circumstances may exist where the public safety or welfare requires a breach of such confidentiality. In the scenario posed, Dr. Eckleburg must decide whether the situation justifies such a breach—knowing that he may face professional and legal consequences.