March 25, 2013 | Posted By Marleen Eijkhjolt, PhD

This blog post solicits for your opinion, so please stick with me. 

There are two prominent sad realities in my clinical ethics fellowship. The first is that many cases deal with end-of-life issues. The second is that there are many ‘lonely’ patients, who often die in the hospital ‘alone’. The two issues combined tend to raise some unfortunate but fascinating clinical PELSI (Policy, Ethics, Legal and Social Issues). One such issue is: Who should make medical decisions at a patient’s end-of-life when this patient lacks capacity and there is no surrogate? 

In the State of New York, we have the Family Health Care Decisions Act (FHCDA) that governs many of these issues, including end-of-life decisions in absence of a surrogate. (I will explain the legislative scheme below) However, this legislation does not solve all problems, as the written word leaves leeway for different interpretations and practices. One of these problems is related to decisions to withhold or withdraw life-sustaining treatment, and can be phrased as: Who should be the second, independent concurring physician in such decisions, in cases where the patient lacks capacity and there is no surrogate?

Let me explain. 

In end-of life situations, where treatment would be an extraordinary burden to the patient, an attending physician can determine that decisions to withhold or withdraw life-sustaining treatments are the more humane and compassionate way forward. Such decisions cannot be easily made, and legislation sets three stringent criteria. I.e. These decisions can only be made in situations where 1) “life-sustaining treatment offers the patient no medical benefit”, AND 2) “the patient will die imminently, even if the treatment is provided” AND 3) “the provision of life-sustaining treatment would violate accepted medical standards” (See ART 2994-g.5 FHCDA). Accordingly, these decisions could only be made in situations of futility. (I recognize that the term ‘futility’ is highly ambiguous and controversial, and will need to be explored in other blog entries.)

In these cases where the patient lacks capacity and there is no surrogate to represent the patient’s wishes, decisions to withhold or withdraw treatment need to be authorized by 2 physicians. An example of such a decision can be a DNR order. As a safeguard for such decisions, the FHCDA requires that the second physician is independent from the first physician who decides that such decisions are necessary. (The first physician would be the attending physician.) The Act states that such decisions require: “independent concurrence of a second physician”. 

However, the FDHCA does not specify who the concurring second physician should be. It leaves us with the following question: Should the 2nd physician be a physician who is familiar with the case or should this be a physician independent of the case, without prior connection? We can think of two positions: 1) the concurring physician should be familiar and connected to the case, or 2) the concurring physician should be outside of the treatment relationship.

There are several reasons we could argue for either position.  On the one hand, several reasons could support position 1, where the decision to withdraw or withhold treatment should be endorsed by a physician who is familiar with the case. Arguments pro this viewpoint could be based around expertise; only physicians that know the ins and outs of the case would understand the issues at stake, including all the underlying conditions, and would be able to judge futility of treatment. They would be the only ones that have adequate insight in the medical conditions of the patient, next to the attending physician. The second physician should be independent, as in having completed his medical training, and able to make independent medical decisions. Yet he should be aware of the case and familiar with its details to adequately assess the medical state of the patient. Accordingly, this physician could come from the same ward as the attending physician.  Cost-efficiency could be another argument pro involving such familiar physician. A pre-informed physician will be able to understand the patient’s condition, will know the chart and read it easily, which enables speeding up the process. This serves the patient’s interests and the hospital staff, who will obtain clarity about the nursing framework in a speedy fashion. However, strong arguments could be raised against such close connection of the two physicians, including concerns around biases and hierarchical barriers in medical practice.  Physicians who are involved in the care of the patient, and who are who are likely connected to the attending physician, may have difficulties going against the primary physician’s opinion if the criteria have been fulfilled. The attending and the second physician may have been colleagues for years and even have had supervisory relations. This may call the objectivity of the second physician in doubt, and may be an argument against involving a physician that is closely connected to the case.    

On the other hand, we can identify arguments pro involving an independent physician that is entirely outside of the treatment relationship. Such arguments would rest on public trust and setting safeguards. Involving an independent physician ensures an unbiased medical perspective, and will offer a fresh and broad affirmation of futility. An update and an unbiased review of the chart should provide guarantees in conclusions around futility, a physiological endpoint. A decision around the 2 criteria for withholding life sustaining treatment would need a certain medical knowledge, but this knowledge should not be vested in the social and ethical issues that often surround cases at the end-of-life. An independent physician spreads a veil of objectivity over the futility judgment and is less likely to be influenced by the medical hierarchical order of the ward. Moreover, the appearance of such objectivity enhances public trust. However, arguments could equally be raised against such position. It could be ‘contraindicated’ to involve an independent physician from outside the treatment relationship. We can think of arguments around burdens for the physicians in their already busy schedule and a lack of available physicians that can make such decisions as at crucial times. Furthermore, an unrelated physician may come from a different school, and hold very different viewpoints. Involving an independent physician will, moreover, not necessarily exclude undue influences in his judgments, especially since the hospital is a small place, and doctors from different wards may know each other.  

My question to you is: who do you think the independent concurring physician? Does anyone of you favor the one argument over the other, and why? Which of the two options seems more consistent with acting in the patient’s best interests? Ideally, cases of medical futility are unambiguous, and decisions to withhold or withdraw life-saving treatments, such as DNR orders, should never be contentious. The medical facts need to be clear, and there should not be ambiguity if the FDHCA criteria have been fulfilled. However, the practice of medicine is inherently uncertain, so the situations may not always be clear cut. It is particularly important to ensure that judgments around futility are physiologically based and rightly made.

I look forward to your comments. 

The Alden March Bioethics Institute offers a Master of Science in Bioethics, a Doctorate of Professional Studies in Bioethics, and Graduate Certificates in Clinical Ethics and Clinical Ethics Consultation. For more information on AMBI's online graduate programs, please visit our website.

6 comments | Topics: Decision Making , End of Life Care , Health Care Policy


Athene Aberdeen

Athene Aberdeen wrote on 03/26/13 3:14 PM

In the final analysis whether there is one physician or two physicians, any decision ought to be made on the holistic situation of the patient. The patient's best interest ought to come first but there are pressures on doctors and on the management of medical facilities that ignore the patient's best interest. Such a situation is not confined to the USA.
Jessie Brown

Jessie Brown wrote on 03/29/13 10:45 PM

Issues like this is quite difficult and I think before they decide they must examine first whether their decisions made are right otherwise the physicians will held be responsible and worst they can be sued if proven wrong in making their decisions. However, as Athene said they have to consider first the holistic condition of the patient.
Jared Elzey

Jared Elzey wrote on 04/04/13 4:03 PM

Regardless of the proximal relationship of the independent physician to the attending physician, I would think respect for professional autonomy would color any decision by the second doctor. I would bet any data on the practice of the law would show a trend toward concurrence. Would this be due to attendings largely characterizing cases correctly, or because of professional respect on the part of the independent physicians, whether or not they know or work with the attending?

If adherence to the law took journal peer-review as a model, then anonymizing the assessments might mitigate bias resulting from professional respect. Each physician would submit their opinion to an ethics board, which would then determine concurrence. The board would be the only party that officially knows the identity of the two physicians.

Of course this might slow down the process, but by emphasizing to the ethics board the urgency of futile care cases and leveraging asynchronous technology for anytime submission of assessments, I think appreciable delays could be minimized. Without fear of the social ramifications natural to judging another's work, we might get more authentic assessments.
Richard R. Pesce,MD,MS, FCCP, FACP

Richard R. Pesce,MD,MS, FCCP, FACP wrote on 04/04/13 9:47 PM

It should be an independent physician outside of the treatment relationship. This physician would not have treating obligation or therapeutic relationship and has less chance of being biased by it. This physician would enhance trust. A physician from the same ward, team, or group would not be seen as an objective observer and might possibly be considered to have a therapeutic relationship with the patient. Although it would be somewhat of an effort to review the record, it is not that onerous. The independent physician that is not involved in the case is in the best interest of the patient.
David Kraft

David Kraft wrote on 04/05/13 4:34 AM

The second doctor must be entirely outside the treatment relationship. I don't like economic efficiency arguments in moral questions. The risk that the second physician is of a different school is a risk inherent in being independent. I think the natural meaning of the word independent means outside the treatment relationship, and I'm not convinced there is good reason to rebut the presumption that the legislator intended the words to mean what they ordinarily mean.
Fernando Gutierrez

Fernando Gutierrez wrote on 04/14/13 1:17 PM

In the State of Florida, Professional Guardians are licensed and regulated for the purpose of providing Healthcare and financial decisions for those patients who have cognitive impairments and cannot consent to medical treatment. This is practical approach is needed in New York to avoid a second physician opinion. A well informed Healthcare Advocate can provide patient autonomy, when a patient cannot do it for themselves.

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