Failing a patient 3 times: A case of moral medical malpractice

Standing up from my computer terminal to go see another patient, I caught a glimpse of a small, spindly frail woman being rolled by paramedics into one of my shock and trauma rooms.

Very calmly, I remarked, “That woman is dying.”

The medical student who was rotating with me was unnerved that I would make such a pronouncement out of a mere casual observance, “Oh my goodness! How can you just say that?”

“Well, I just know,” I said, and motioned her over to see the patient with me.

The paramedics identified her as “Mrs. Jones” and quickly gave me a report while she was still on their stretcher: 78-year-old female, advanced colon cancer, not eating or drinking for 3 days, barely responsive, sent in after home health nurse called the cancer doctors about her condition. Patient is on active chemotherapy. Family had no advance directives.

Visibly uncomfortable with my comfort, the medical student stood back as I leaned in close to Mrs. Jones and held her hand. She was really a pitiful site — 80ish pounds, gray-hued skin, swollen legs and breathing rapidly. The sound of bubbles and mucous in her airway muffled her voice for the only clear words that I would ever hear from her: “I’m dying.”

“Yes, you seem to be,” I said in my softest, gentlest voice. “What can I get for you? Are you in any pain?”

To each question, she shook her head. But she could not communicate anything beyond this, so I could not readily gather her wishes.

I ordered oxygen, labs and IV access while I tried to figure out what to do next. Would this be aggressive intervention, comfort care or somewhere in between? I wasn’t sure because she was clearly not on hospice, there were no advance directives, her husband wasn’t there yet, and there were no records of her in our computer to help me sort out my next urgent medical course of care for her. But, I did have the name of her oncologist, so I called him up.

“Hey, Jack (we are very collegial at my hospital), I’m taking care of Mrs. Jones here in the ER and I don’t have any records on her to understand the big picture of her care goals and plans.”

I continued, “I have to tell you, that she is in really bad shape.  Frankly, she appears to be actively dying and I didn’t know if you had discussed comfort care options with her before.”

Without pause, he responded, “Well, I haven’t discussed advance directives with her and her husband. But I really don’t think she is ready for comfort care only just yet. She is has been coming to the office all week for fluids and responded well to a round of chemo last week.”

I about fell out of my chair.

This was the first failure for Mrs. Jones.

How could someone have advanced cancer and never have had their doctor discuss advance care planning with them? Isn’t this a form of “moral” medical malpractice? Or was this an extreme case of medical paternalism at its worst?

Even worse, this oncologist had been seeing her frequently. Did he not see where she was on the map of her illness? Was he unable to see the forest for the trees? I mean, I looked across the hall and could tell that Mrs. Jones was dying, even before she told me herself. Didn’t he even have a hint of the same gestalt?

So, that was fail number one, from an oncologist: failure to help Mrs. Jones and her family plan and prepare.

Failure number two came from me.

When her husband arrived, I sat him down in the closest quiet space I could find and after a short “ease-in” period, I stated the bottom line: “She told me herself that she is dying, and I believe her.”

I waited for his response.

He said, “I have seen a lot of people die and I was thinking that she is dying. But at the same time, I really want to get her hydrated and try to get her nutritional status up.”

“Mr. Jones,” I replied, “I really think this is it. I think she is dying no matter what we do at this point. If she was my mother, I would only choose medications to make her comfortable.”

When I asked him what he thought Mrs. Jones would want if she could communicate it (substituted judgment), he said, “No CPR or breathing machine, but she would want to try everything else.”

So, here is where I failed; I entered a DNR order and let my conversation stop there. I let Mr. Jones’ preconceived hope for recovery, planted by the oncologist’s silence, to go unchallenged further. This led to Mrs. Jones going to the ICU for aggressive IV fluid and pressors (chemical blood pressure support agents). The family, limited by visiting hours and falsely expecting a turn-around with aggressive IV therapy, went home for a break.

However, instead of “turning around,” Mrs. Jones became unconscious soon after they left.

She was going to die, as I had known from the start. But now she was alone, except for the ICU nurse and the pulmonologist who saw her next — the doctor who unbeknownst to himself, provided the final failure for Mrs. Jones.

The pulmonologist at least recognized that Mrs. Jones was dying and appropriately honored her DNR order, but wrote these words in her chart “There is nothing more I can do for her … family called to come in.”

How did we arrive at a place where the doctor doesn’t think there is anything to do for the actively dying patient? Do we think that if we cannot order an IV drug or put in a central line that there is nothing for us to do? Doctors still hold a priestly role in society whether we accept and fulfill this role or not. It is high time that we take this mantle back upon us and be hell-bent on making sure that our dying patients are having “good deaths,” with as much devotion as we give to “saving” our patients and attempting to give them a “good life.”

So, in the end, Mrs. Jones died just shortly after she arrived to the ICU. She knew that she was dying and I knew that she was dying whether anyone else accepted it or not. Regrettably, we failed to prepare her for that moment.  We failed to give her the best death possible. I hope, where ever Mrs. Jones is, that she will forgive us.

Monica Williams-Murphy is an emergency physician and author of It’s OK to Die.

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  • piedoe

    It is sad that Mrs. Jones died without her family at her bedside, holding her hands, or at least witnessing; but I’d like to quarrel with your feeling that you failed her, too. Her scenes had been written for some time. Had you continued talking with the husband about letting his wife have a good death rather than hauling her into intensive care, he may have agreed to it, but with new feelings of conflict and doubt. As an ER physician, it must be arduous deciding with each dying patient when to lead, and when to let the family lead. With Mr. Jones, it sounds as if you read him correctly, and knew exactly when to back off. As for the lady, you gave her your tenderest regards.

    • Dr. Monica Williams-Murphy

      Thank you for your quarrel, but I have high expectations for myself. If I am going to call my colleagues to task to do a better job, then I need to do my best job as well…and I did not. It may have been the best outcome for the path of least resistance, but as I suggest in the essay, we all must do better.
      However, I am proud that Mrs Jones felt understood by me, that someone heard her and acknowledged her self-awareness

      • Rob Burnside

        Sadly, and for many reasons, good deaths are rare.
        You did the best you could under the circumstances. Almost always, a few more beats remain in the dying heart, enough to make everyone experience a final flicker of hope, however unrealistic Though you’re a medical professional, you’re a human being first, and you can’t be entirely immune to this most basic human emotion. Instead of dashing hope, you allowed it to expire naturally, and my sense is that you opted for treating the living (your patient’s family) as well as you possibly could. I have no heartburn with that whatsoever, and I suspect Mrs. Jones would agree.

        • Dr. Monica Williams-Murphy

          Thanks, Rob. I appreciate your insights. Well said

          • Rob Burnside

            Monica–A life without regret is a life unlived. But, we must fortify ourselves with memories of cases that have gone well. Otherwise, the rest will overwhelm us. When you can, please write again. Tell us about a patient you saved. We need to hear it! Rob

  • Dr. Rob

    Very good article. Sad story, and sadder still is the fact that it’s not uncommon. Thanks for writing and sharing it.

    • Dr. Monica Williams-Murphy

      Thanks Dr. Rob. I agree, it is in fact too common. I would hope that our penance to Mrs Jones would be to make this situation uncommon, rare, and extinct in medicine.

      • rbthe4th2

        Agreed, but where are you finding docs willing to take that responsibility? I’d go to docs who were honest like you are, Dr. Williams-Murphy, but I’ve got quite a few (and including “risk managers”) who aren’t in that crowd.

  • Dike Drummond MD

    Let’s just call it like it is. This entire tragic story was 100% avoidable. Mrs. Jones could of and by all rights should have died at home, surrounded by her family, at peace at last.

    The oncologist’s failure to acknowledge even the possibility of this patients death set into motion this entire chain of events.

    Reality Check: No one gets out of here alive. Everyone knows they are going to die and some of us have the final cause in our face … in this case in the form of a terminal cancer diagnosis. It is bordering on criminal in my mind that the oncologist does not have a standard practice of a detailed discussion of advanced directives and “how do you want to die?” with every single patient that comes through their doors. Every Single One. This should be the standard of care.

    And where in the world was this patient’s primary care doctor?

    I hope Mrs. Jones is in peace. Our “system” and its failure to inform her of her ability to die in the manner of her choosing has done her and her family a distinct disservice (and believe me I want to use much stronger terms here).

    My two cents,

    Dike Drummond MD

    • Dr. Monica Williams-Murphy

      My sentiments exactly! Thank you for your comments. We can and must do better

    • Rob Burnside

      A key question: “Where was the primary care doctor?” My eighty-three y.o. father, in poor health, had fallen and lay comatose in ICU with a large hematoma in his occipital region. I had gone home (5 minutes from the hospital) to shower, change clothes, and return when I was phoned by his family physician to get back asap and speak with a neurosurgeon, prepared to operate, who needed permission to establish a “temporary” airway (tracheostomy).

      Dad had other medical problems and had indicated he wanted standard resuscitative measures but no fruitless, life-prolonging care. As I pondered to his latest slip down the “narrow aisle of pain” it occurred to me that this might well be the time to let go, but I needed to know more and replied, “What about informed consent?” and indicated I’d be there shortly.

      When I arrived at the ICU, Dad’s primary care physician was, incredibly to me, gone–left the hospital and unavailable. I was confronted by a six-foot- four surgeon in scrubs, holding a consent form, and rather angrily demanding I “make up my mind.” Unfortunately, I was exhausted, easily intimidated, and sorely lacking input from the suddenly-absent PCP. My preliminary choice—to pass on the trach and pass on the surgery–was the right one in retrospect, but I needed to know how much pain he might be experiencing at the moment and likely to experience as he died. Instinct, and some personal medical knowledge told me “little to none” but the surgeon was fuming, Dad’s PCP was AWOL, and I made the wrong choice. The surgery was successful and Dad lived on in agony–caused chiefly by the “temporary” trach– for another six months.

      He was now a home hospice, 24-hour care patient, and I can’t recall a good moment–for him or me–in the entire six month period. This happened fifteen years ago but I’ve carried the guilt daily since, as well as the knowledge that something similar could easily happen today. Communication is everything. Where it doesn’t exist (the absent PCP) or where it is forced and skewed (the angry neurosurgeon), results are likely to be poor and regrettable all the way around. Reader, I tell you this for what it’s worth, hoping that you may avoid a similar fate.

      • Suzi Q 38

        I am sorry for what happened. You did the best you could.
        Thank you for your story.
        I will not let a tall surgeon bully me into signing a consent form thanks to you.

        • Rob Burnside

          Thanks Suzi. I ultimately made the decision based on what I thought Dad would have done, though he was unconscious at the time. He was a fighter, and if there was a reasonable chance of success, he would have said, “Go for it.” Plus, all this came at the end of a three-year slide, full of one problem after another, that had exhausted both of us. So, I didn’t trust my own instincts at that point. I guess the moral of the story, if there is one, is this: when you have a family member critically ill in the hospital–don’t leave for ANY reason. Best to you, Rob

  • jere14

    I was in the hospital as a patient, ill but not near death. There was a general callousness towards my suffering which was considerable. I was supposed to be the perfect patient, not to be angry, fearful, or ask questions. The hospital psychologist labeled me as emotional labile because I did not take things quietly like a good little trooper. The whole experience was quite dehumanizing. I can only imagine how poorly they would deal with a terminal patient.

    • rbthe4th2

      Yes, I am told I don’t trust docs if I don’t ask questions. If you can’t handle 2 or 3 questions about what the test is supposed to prove, how will it affect other treatment, etc. then you have the attitude problem & need to see a psych doc.

      I also questioned the food I was getting last while in the hospital. It wasn’t appropriate (I have food intolerances & a few other documented GI issues) but was told I was being “willful”, when I had a medical reason to back up my questions.

      “Doctors still hold a priestly role in society whether we accept and fulfill this role or not.” I’m sorry, but with the constant list of patients that I hear about hurt, medical boards who do nothing to stop it, doctors who can’t work with you to fix things, blacklisting, any “priestly” role docs had, no longer exists. You guys did do this to yourself. Rather than partnering with those of us who aren’t trying to “sue for Easy Street”, the profession chose & still choses this way.

      • meyati

        Add nurse navigators too. Mine walked off-told everyone I really needed to see a shrink. I was just told that I had a rare incurable cancer and they wanted to ship me out-2,000 miles away. For some reason my PCP wouldn’t let me sign a DNR-hospital-state regs I don’t know. I went up to fill out paper work my last whatever-they kept saying that I couldn’t have the plug pulled-no DNR-etc. I told them that I DO NOT NEED THEIR PERMISSION TO COMMIT SUICIDE-A DNR IS NOT A FORM OF SUICIDE. Now the HMO has a DNR download on the home page. Mean while I’m frozen out of getting any help in the issues that everyone talks about. The radiation killed the cancer tumors, but this thing has a clinical history of exploding without any warning after what looks like a successful treatment. Almost any time I have a problem my PCP says that it’s the radiation. I was bit by my dog, went into the ER. They botched it-wrong antibiotic, too small of a dosage. Lots of pus was dripping out of my arm. Then the electronic record was miswritten and/or misread-and I was released without an antibiotic. I called all the pharmacies to see if there was a script for 4 anything. Seems that sore throat-spells of great fatigue hit me for a short time- then I start getting strong. PCP says radiation-radiologist says virus. I just feel lost and unwanted- I would just like to keep my house clean- not sleep over 12 hours a day- PCP checks iron-potassium-BUN-but I don’t think that an actual lab has been run to see if I have a low grade secondary infection. I’m ready to make an appointment with a damn shrink-I don’t believe in them- I keep building up on exercises, trying to lose weight-get the booster going. I’m talking way to much.

        • meyati

          I did force my way into the PCP-got a shot in the rear, and large Augmentin pills. Then they had to take my tonsil out. I do not hurt in that part of the throat at all.

  • FFP

    You did not fail this patient; anybody else, but you.

    Shame on the oncologist for not discussing advanced directives in a patient with advanced colon cancer.

    Shame on this society for putting doctors in situations where we cannot refuse a family’s wishes for more intensive care without risking harm to ourselves. Hope should not pass for scientific reason.

    • Dana

      To be honest, some of the reticence of the patients’ families to accept that death is imminent comes from suspicion that doctors will just let the patient die because they don’t fit into the youthful-and-healthy demographic and are therefore difficult to treat.

      It would help if we had a different medical system where profits were not put ahead of patient welfare. Right now the medical system across the United States bears a striking resemblance to those few and rare local fire departments across the country whose firefighters stand around watching a house burn down simply because its owners were late paying their membership fees.

      Maybe someday…

  • Steven Reznick

    Clearly a sad story but without knowing the extent of the relationship between the oncologist and the patient and family it is easy to throw stones and pass judgement.
    I cared for a mid nineties retired physician suffering from a life ending neurological and subsequent emotional crisis. I spoke with the wife and daughter and son about end of life issues and suggested executing a DNR form and consulting hospice for palliative care. They declined repeatedly. As he got worse, the SNF nurse and administrator approached me and told me, ” he can not die here unless he is on a hospice service or unless he has executed a DNR.” Sometimes despite the attending physician repeatedly discussing reality with the patient and family, they are just not ready to make a decision. End of life issues had been discussed with the patient numerous times in advance of his illness and he too did not want to commit to anything. I found the attitude and policy of the SNF and staff a bit repulsive. ” For medical legal reasons” they wanted to call 911 and send him to the ER rather than have him die comfortably on site.
    Our approach as a society has to change on the issue of death and dying before we can condemn physicians, doctors and nurses for doing the wrong thing.

    • ZoeyMO

      This doctor said “I haven’t discussed advance directives with her and her husband.” Obviously an entirely different situation from one where the family is in denial and won’t HEAR a discussion.

      • Steven Reznick

        I agree with you but in fact we do not know how long of a relationship there was between the patient and the oncologist and what they discussed. Based on their discussions the oncologist may not have felt they were ready for that discussion yet. The ER doctor saw the patient at one point in time and based on her condition made a decision which the patient and family may or may not have been ready for prior to that.
        I am not disputing the need to have end of life discussions with patients who have terminal illnesses. I am a proponent of that along with use of early palliative care. I just believe we have to be careful in delivering criticism when we do not have all the facts.

        • ZoeyMO

          Well, I tend to agree that criticism without knowing facts is not a good idea. But I think there are many cases where the discussion is not happening, and I think it is valid to point out that that is failing the patient. The patient IS going to die someday and to pretend that it’s not a possibility with a serious disease is doing a disservice to the patient and his or her family. If they don’t want to listen, that’s their prerogative, but it is incumbent upon the doctor to bring it up.

          • Steven Reznick

            I agree with you that it is our responsibility to bring the subject up and discuss it before a major crisis forces the issue.

  • Linda Fitzgerald

    This scenario is way too common. When my mom died from lymphoma, her oncologist never discussed the likelihood of her death. When she was in the ED, for the last time, I went up to his office to ask for hospice and the nurse said “we were waiting for you to ask for that”. It should not be up to the family to determine that their loved one is close to dying. An oncologist who is afraid to talk about death is in the wrong business.

    • Dr. Monica Williams-Murphy

      Your mother’s situation inspires the same type of moral outrage in me that led me to document the story of “Mrs. Jones.”
      Please continue to spread your story and your message as well. It is a way to transform your mother’s experience into a force for good and system change.

  • FFP

    That’s all very nice, but I am looking forward to the federal indictments, like for medical marijuana.

    The Commerce clause has been overabused for the last century, so I would be surprised if this does not go down the same way, with the federal government cracking down on all those “criminal” doctors.

  • That Part Is Over

    Oh man. This made me tear up something fierce. I can only hope whatever chemicals and endorphins her brain produced either gave her some degree of natural pain blockers or even a heighten sense of euphoria.

    I have never ever even considered what it must be like for a Doctor or a nurse during something like that. Never.

    I’m so busy stereotyping and almost despising Doctors from my own piss poor treatment from them that I just never ever even considered looking at it from this angle.

    That was clearly well thought out and explained and I felt as if I was there. So sad. So tragic.

  • That Part Is Over

    Oops! I posted this on the wrong blog. I apologize.

    • Suzi Q 38

      You can remove it but clicking on “edit.”
      Scan over the whole response with your mouse and delete.
      then type in something like “Hi.” in its place.

  • Sara Stein MD

    Sad and true. Thus the evolution of the “slow code”. Walk, check phone, look at list, take elevator that takes forever to get there instead of leaping 3 stairs at a time, stop at desk and ask which room. Fumble with crash cart. Wait between instructions to give the next one. Keep asking how long has it been. All in order to minimize death trauma for the patient who doesn’t want it, but whose family cannot make that decision. To all the doctors and nurses who have to “treat” the dying, rather than comfort them, here’s to you for walking the tightrope between moral and legal. Somewhere in heaven the patient says thank you.

  • Taylor Zhou

    Don’t be too harsh on the oncologists. There is a huge emotional and psychological burden to seeing mostly dying patients over a long period of time. I’m sure most of them understand how grim prognosis is most of the time, but they are also ones who see the good outcomes and responders.

    There is also the very important aspect of hope. For some of those patients and families, hope is all they have left.

    It’s too easy for an emerg physician or other HCP who sees a patient for the first time, one-off, to criticize someone else.

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