Not engaging in end of life discussions is grounds for malpractice

by Barry Massie, MD

It’s not that I am fixated on death, but recently, the CMS (Medicare) has decided not to pay for discussions with patients about prognosis and planning end of life care.

Reimbursement for such discussions was a key aspect of the health care reform legislation passed this year, and was widely mischaracterized as establishing “death panels.” I cannot imagine a legitimate justification for this rescission to the law. Patients and families are eager for this information, and it is important to them that it be available.

Most want to understand their conditions and the options available to them. It is also invaluable to their physicians and other health care providers to know and understand their patients’ preferences. None of us want to cause unnecessary discomfort—nor, for that matter, would we want to experience it ourselves. I can think of no reason why patients who wish to be informed and participate in such decisions should be denied this option. Indeed, it is unethical and contrary to our Hippocratic oath not to ask patients and their families what they would want to have done at all stages of illness. We all obtain “informed consent” and discuss alternative options before certain tests and procedures.

End of life care should be no different. Indeed, one could consider it grounds for malpractice to expose patients to unnecessary suffering by not engaging in such discussions. Perhaps such ethical and legal risk would encourage practitioners to have these discussions without payment. Speaking as a heart failure specialist, there is a wide spectrum of potential management approaches to patients with severe heart failure who have not responded to optimal treatment regimens. These range from experimental drugs to device implantation, mechanical assist devices, and transplantation. But for those who are continuously short of breath and uncomfortable, or unable to take care of themselves and have exhausted treatment options, there are also choices that should involve patients and their families.

In my view, this rescission reflects a lack of courage on the part of those responsible, and they should be ashamed. In short, appropriate and ethical decisions have been defeated by dishonest sound bites (e.g., the above-mentioned “death panels”). For this, everyone (patients, families, medical personnel who will have to participate in patients’ unnecessary suffering, and the public which will have to ultimately pay for the exorbitant costs of end of life care) will suffer.

Barry Massie is a cardiologist who blogs at CardioExchange , a NEJM Practice Community.

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