Bioethics Mediation

A Guide to Shaping Shared Solutions, Revised and Expanded Edition

Nancy Neveloff Dubler, Carol B. Liebman

• Publisher: Vanderbilt University Press
• Year: 2013
• ISBN:
  9780826519689
• Topic: Medicine
• Subtopic: Ethics in Medicine

Expanded by two-thirds from the 2004 edition, the new edition features two new role plays, a new chapter on how to write chart notes, and a discussion of new understandings of the role of the clinical ethics consultant.****Bioethics Mediation offers stories about patients, families, and health care providers enmeshed in conflict as they wrestle with decisions about life and death. It provides guidance for those charged with supporting the patient's traditional and religious commitments and personal wishes. Today's medical system, without intervention, privileges those within shared cultures of communication and disadvantages those lacking power and position, such as immigrants, the poor, and nonprofessionals. This book gives clinical ethics consultants, palliative care providers, and physicians, nurses, and other medical staff the tools they need to understand and manage conflict while respecting the values of patients and family members. Conflicts come in different guises, and the key to successful resolution is early identification and intervention. Every bioethics mediator needs to be prepared with skills to listen, "level the playing field," identify individual interests, explore options, and help craft a "principled resolution"—a consensus that identifies a plan aligned with accepted ethical principles, legal stipulations, and moral rules and that charts a clear course of future intervention.The organization of the book makes it ideal for teaching or as a handbook for the practitioner. It includes actual cases, modified to protect the privacy of patients, providers, and institutions; detailed case analyses; tools for step-by-step mediation; techniques for the mediator; sample chart notes; and a set of actual role plays with expert mediator and bioethics commentaries. The role plays include:• discharge planning for a dying patient• an at-risk pregnancy• HIV and postsurgical complications in the ICU• treatment for a dying adolescent• dialysis and multiple systems failure

PART I

A Framework for Understanding Bioethics Mediation

Why does mediation hold such promise for the vital activity of clinical ethics consultation? Professionals who engage in CEC know that both process and interpersonal skills are essential for the person leading the consultation. We believe that mediation provides the best theoretical framework for understanding the process of bioethics dispute resolution and for training those who will perform these important tasks. Here is why:

• Mediation is a body of knowledge and a set of skills that can be taught.

• Skilled mediators are available to provide training and can be linked with bioethics professionals in mutually supportive relationships.

• Mediation is more and more interesting, at least to those professionals who see the imposition of administrative directives, and the interference of insurance companies, as an unappealing source of conflict over care plans and who ask whether the new health care reforms will increase or decrease these events.

• Risk managers and litigation experts increasingly agree that poor communication by medical personnel with the patient and family is hazardous in terms of later possible litigation and that mediation provides a route to structure and guide that communication.

• Scholarly literature about mediation can be linked with bioethics consultation and thus enrich the field.

In making this argument, we have deconstructed the discussion into as many of the component parts as we could to raise the most pertinent issues that might confront the busy and harried bioethics mediator in a contemporary health care setting.

1

Why Mediation?

The following case was presented at Medicine Grand Rounds at a major urban teaching hospital.

The Angry Family Acting against the Best Interest of the Patient: Clarence Corning’s Case

Clarence Corning was an eighty-six-year-old male with respiratory distress. He was hospitalized for a stroke that had occurred on the right side of his brain. He was initially on the neurology service and then transferred to the acute rehabilitation service, where he had a feeding tube placed; the medical team also began treatment for pneumonia in his left lung.

On the twenty-seventh day of the patient’s hospitalization he had an acute event with desaturation, tachypnea, and decreased mental status and was transferred from the rehabilitation service to the Medical Intensive Care Unit, where he was promptly intubated for acute respiratory failure secondary to aspiration pneumonia.

The patient’s hospital course was then quite troubling. He was intubated and treated for hospital-acquired pneumonia with broad-spectrum antibiotics. On hospital day (HD) #36 he was extubated. He was transferred to a step-down unit on HD #39. On HD #41 the patient spiked a temperature again and was restarted on broad-spectrum antibiotics. On HD #44 he was reintubated for recurrent aspiration pneumonia. On the same day the patient also was started on hemodialysis for renal failure. On HD #48 the patient underwent an elective tracheotomy.

When Mr. Corning entered the hospital, he had experienced some atrial fibrillation and hypertension. He had no history of drug or alcohol abuse or use of tobacco. His relationships with his family were warm and supportive. The medications he was taking included Warfarin, Reglan, Enalapril, Escitalopram, folic acid, and Albuterol/Atrovent.

On multiple occasions, communication with and decision making by the family had been difficult and possibly detrimental to the patient’s best interests. For example:

• A Shiley hemodialysis catheter was placed for emergent hemodialysis. The patient became febrile ten days later but for over thirty-six hours the family refused to allow his catheter tube to be changed. In this interim, the patient had a positive blood culture for staphylococcal infection.

• The patient had been dialysis dependent since initiation and required permanent access. The family refused to allow permacath placement until twenty-two days later.

• The patient had recently become hypotensive and febrile and had a positive blood culture for gram-negative rods. The family at first did not allow the resident to order appropriate antibiotic coverage and was still refusing replacement of the permacath.

• There had been many instances of the family’s arguing with the house staff and nurse practitioners involved in the care of the patient regarding routine orders and patient management.

Mr. Corning remained in the hospital. Though he was now on a tracheostomy collar, he continued to have nosocomial infections and recurrent bouts of sepsis. The decision makers for the patient were his son and daughter, who were joint health care proxies.

This case was presented at grand rounds in medicine at a major urban teaching hospital that does not have an active CEC service using mediation as its intervention for conflict. This is an example of a festering conflict that angered and incapacitated the medical staff and, one could imagine, infuriated and depressed the family. The resident in charge of the case admitted, when asked, that no one had actually told the family that Mr. Corning was dying. This large elephant at the dinner table was visible to all but mentioned by none.

Had the authors of this book been able, they would have

1. convened all of the care team for a meeting;

2. confirmed that, by all medical parameters, as far as could be determined, this patient’s chances for recovery were very slim to nonexistent;

3. arranged a conference with some representatives of the team and the family; and

4. followed STADA:

• Sat with all in one room

• Begun by asking: “Tell me about Dad”

• Admired the family for loving their dad so much

• Discussed the diagnosis and the prognosis by (a) engaging in a process of generating options, and (b) engaging the family in a discussion about their values and goals and how to match those with the articulated options for care

• Asked what the family thinks Dad would want and what would be in his best interest (see Chapter 5 for a discussion of STADA)

Everything that could have gone wrong in this case did. A man quite vital before his stroke was now quietly slipping into death, and no more interventions could prevent his demise. No one on staff had told the family that they were sorry for the infections that some patients acquire. They need to say this even though quality improvement measures insist that these infections are not inevitable but are avoidable with greater care and checklists of preventives. No one had engaged the family in mourning this terrible outcome. Silence had become the rule, as administrators had advised the medical team that the family might take legal action.

Consider in contrast a case in which mediation was used.

The Isolated Wife Adjusting to Loss: Edward Davidoff’s Case

Edward Davidoff, an eighty-two-year-old man, was admitted to the cardiac service with chest pain. Diagnostic tests revealed the need for quadruple bypass surgery to open four occluded vessels. He was a poor candidate for surgery, however, because he had chronic uncontrolled diabetes with moderate-to-severe compromise of his peripheral vascular system. Unfortunately, there were no other choices if he wanted to live, which he did, and surgery was performed.

After the surgery, Mr. Davidoff did not recover and developed various infections, necessitating his return to surgery for the removal of infected muscle and bone. A bioethics consultation was requested after the second surgery, at which time he was ventilator dependent with an open chest wound that would not heal. Mr. Davidoff’s wife was desperate about her husband’s condition and determined that he should recover. She was unable to assimilate the nuanced, and not very clear, discussion by the care team, who used euphemisms to indicate that Mr. Davidoff was dying. No one in the cardiac team had been blunt about the prognosis, and Mrs. Davidoff used this oblique discourse to reinforce her unrealistic expectations about her husband’s recovery. Completely alone and desperately lonely, she had moved her chair out into the hall and sat there waiting to waylay any staff member with a connection to the care of her husband. She responded to any specific discussion about care options by choosing the most invasive (why that option had been presented was the first question the bioethics mediator asked the cardiac team), which she equated with the best chance of insuring her husband’s survival. She was never told directly that his survival would be unprecedented, and so it is not surprising that she continued to demand that everything be done. This demand led to the request for a CE consultation.

The consult was called by the nursing supervisor, who had been spending increasing time with Mrs. Davidoff. In keeping with the usual procedure of the service, the bioethics mediator met first with the care team—the cardiothoracic surgeon, the vascular surgeon, the first- and second-year residents, the surgical fellows, the primary nurse, and the nursing supervisor. They discussed the case and explored the history of Mr. Davidoff’s care and the prognosis, concurring that Mr. Davidoff was unlikely to survive the night. No one had yet communicated this prognosis to Mrs. Davidoff. Moreover, Mr. Davidoff had clearly stated to various members of the care team that if the surgery failed, he did “not want to be kept alive on machines.”

The team felt that it had an obligation to the oft-expressed wishes of the patient but also to the anticipatory grieving of the wife. The team members did not think that Mrs. Davidoff could decide to remove her husband from the ventilator, although they felt this removal was probably what Mr. Davidoff would have wanted. Furthermore, they felt that a do-not-resuscitate (DNR) order was needed to prevent a terrible death if Mr. Davidoff went into cardiac arrest. The open chest wound precluded any effective resuscitation effort.

Before ending the care team discussion, the mediator asked which members of the large team wanted to be part of the discussion with the patient’s wife; confronting her with the entire group would be intimidating. It was agreed that the cardiothoracic surgeon, one of the surgical fellows, one of the residents, and the primary nurse would meet with her. The mediator next asked who should lead the discussion. She explained that she was a stranger to the patient’s wife and would introduce herself and explain her role but that she need not lead the discussion unless that was the wish of the team members. They asked her to lead the discussion.

The primary nurse then invited Mrs. Davidoff to join this smaller team. The mediator introduced herself and explained her role. “Sometimes when members of the care team and members of the family disagree about a plan of care,” she said, “I am invited to join the discussion. My role is not to make the decision but rather to explore the various options—first with the care team, and later with the team and the family—to see whether all can reach a consensus about the best care plan for the patient. I am sort of a mediator but I am an employee of the hospital. I have spoken with the care team and they seem to think that your husband is dying.”

“You mean like in a year or six months?” Mrs. Davidoff asked.

“No,” the mediator answered, “maybe even today. They have not been able to remove the infection, which continues to spread, and they seem to think that there is not much more that they can do. They are also concerned about the fact that your husband told many of them that if he were in a state where he was on machines and where he was not expected to recover he would want to be permitted to die.” She went on to explain the team’s reasons for wanting to remove Mr. Davidoff from the ventilator and why they recommended a DNR order.

Mrs. Davidoff had no involved family and only a few friends, none of whom came with her to the hospital. Also, she was Jewish and it was the time of Rosh Hashanah, the Jewish New Year, when families often get together and when, by religious tradition, decisions about life and death are logged for the future year. For any person accustomed to this practice, it is a time when being alone would be particularly poignant. Mrs. Davidoff therefore requested the support of a rabbi and soon agreed that her husband would not want to live this way and that a supportive care plan was appropriate.

Bioethics conflicts range in difficulty from simple to extremely complex. This book emphasizes difficult cases to illustrate the range of issues involved in mediating complex disputes. But the majority of bioethics conflicts are similar to Mr. Davidoff’s case and fall at the easier end of the spectrum.

In Mr. Davidoff’s case the fragmentation of the care team, the complexity of the prognosis, the disinclination of medical staff to talk about death, and the unrealistic hopes of his wife combined to produce a conflict about the best plan of care. Although cases like this one may raise bioethical issues, the skills that are called into play—helping those most concerned about the patient clarify the medical facts, explore the options, and develop solutions that reflect the patient’s values and satisfy the family—are most often those associated with classical mediation. The distinctive character of CEC creates its own process, however, blending ethical principles and mediative skills into something unique. This unique process is the subject of this book.

Managing Conflict in the Contemporary Medical Context

Bioethics is about people: the lives and deaths of individual patients in the context of family, friends, significant others, and care providers, as well as the personalities, history, attitudes, feelings—including fears and a sense of guilt—and commitments of each person involved. In recent years, bioethics disputes have become more common. Both the patients’ rights movement and the consumer movement have legitimized the place of the family and the patient in deliberations regarding medical matters. Patients are now considered customers in many hospitals, and aiming to please these consumers is one of the goals of various medical administrators. At the same time, awareness of the potential for conflict has grown as a result of the shifting structure of health care funding and delivery and will only increase as additional systems and measures are generated by the new health care reform. The growth of managed care and the shift from fee-for-service medicine (with its incentives for overtreatment) to capitated arrangements (with their incentives for undertreatment) have fueled growing mistrust among patients and their families, who perceive that the integrity of the care provided may be affected by factors external to the best interests of the patient. This shift has also led to increased tension between doctors and nurses, on the one hand, and, on the other, organizational administrators who seek to improve the profitability of the health care institution by increasing the productivity of health care providers and shortening the time patients spend in acute care institutions. Discharge planning has become, in many institutions, the only role for social workers, as time once available for warm and sympathetic support for families and patients has been squeezed out by demands for targeted careful arrangements for the patient to return home or go to some intermediate health care facility. As a result of these changes—and of the ever-increasing number of medical choices available—CEC has taken on a heightened profile, reflected in the developing professionalism of the field, the growth of graduate school programs, the increase in the number and quality of scholarly publications and academic programs that prepare professionals for the tasks of clinical bioethics, and the impact of national organizations.

What Is Bioethics?

Bioethics is a body of scholarship produced by philosophers, lawyers, medical care providers, and theologians who, in a dialogue over the last four decades, have identified shared values that provide the basis for normative principles and rules. These normative statements have been derived from benchmark ethical theory, largely propounded by the philosophers John Stuart Mill and Immanuel Kant, that deals with interlocking ideas about morality and human behavior. These rather arcane writings were modernized by the new field of bioethics to respond to the development of the modern health care enterprise. Issues of care related to increasingly skilled medical technology that could maintain organ function beyond the existence of an integrated, relational person ...

Table of contents

• Cover
• Title Page
• Copyright
• Dedication
• Contents
• Foreword
• Preface
• Acknowledgments
• Part I. A Framework for Understanding Bioethics Mediation
• Part II. A Practical Guide to Bioethics Mediation
• Part III. Chart Notes
• Part IV. Case Analyses
• Part V. Role-Plays: Practicing Mediation Skills
• Part VI. Annotated Transcripts of Bioethics Mediation Role-Plays
• Afterword
• References
• Suggested Reading on Mediation
• Index