March 2011 Volume 7 Number 7

The Overburdened ED Physician: What Do You Do When You Know the Patient is Going to Die?

By Stanley J Pruszynski, Esq., Cirillo Consulting Group LLC, New York, NY

AuthorIn large urban areas it is accepted that a hospital’s Emergency Department (ED) serves as the de facto primary care giver for a wide patient demographic. The demand for services has become so overwhelming at times that in 2009 the Surgeon General of Florida submitted draft guidelines that recommended barring patients with incurable cancer, end-stage multiple sclerosis and other critical conditions from being admitted to hospitals if the state became overwhelmed by flu cases.1 At the same time the Centers for Disease Control and Prevention scheduled a meeting to debate the sensitive issue of who should be given access to ventilators if the swine flu pandemic worsened.

Add to this scenario the everyday reality of those who are brought to the ED with little likelihood of survival because of a terminal illness in an advanced stage, a rapidly deteriorating chronic illness, or some acute trauma. The challenges to provide treatment that is ethically appropriate can clash with those that are legally mandated in the arena of a hectic, sometimes chaotic and usually overburdened ED. The passage of the Emergency Medical Treatment and Active Labor Act (EMTALA)2 provides a legal standard for requiring assessment and, at a minimum, stabilization of a patient presenting at the ED of most hospitals in an emergent medical condition. Unfortunately, EMTALA was intended to provide a medical screening examination to determine if the patient had an “emergency medical condition” which could be stabilized or treated and was not designed to tackle, and is ill-equipped to address, the numerous legal and ethical issues in dealing with counseling, support and the palliative care beneficial to those patients who are at the stage of life nearing its inevitable conclusion.

End-of-Life ED Admissions

How is it that the ED becomes the final resting place for this particular patient population nearing the end of their earthly existence? In the situation of those terminal patients being cared for at home, the family may not have had the advantage of home hospice counseling. As such, the symptomatic events of the oncoming demise may precipitate a hurried call to 911 by distraught family members with the hope the ED physician can “do something” to ease the apparent suffering. Even in a nursing facility (NF) doctors may write orders to discharge to an acute facility as the end approaches with the misguided belief that an ED is somehow better equipped to handle such events (not to mention it avoids another “death stat” for the NF). For those homebound with a rapidly deteriorating illness (viz., onset of post-op sepsis) or those who present with severe trauma (auto accident) with little likelihood of survival3, the ED serves as the final repository which places the burden of providing, or withholding, treatment upon understaffed attending physicians or, more likely, those interns and residents usually less experienced by training to handle the myriad issues of end-of-life counseling, family support or palliative care-taking decisions.

Informed Consent Requirements

Inherent in the process of providing treatment is the legal right of the patient to participate in the choice of treatment by providing or withholding consent, except, of course, in cases where the patient is incapable of providing consent for some other reason. In end-of-life scenarios, if no family is present, no advance directives accompany the patient, or the patient cannot communicate his/her preference, the ED physician is legally obligated (by EMTALA, The Americans With Disabilities Act of 1990, or state law ) to use all means possible consistent with their training to stabilize and to provide life sustaining treatment, unless they determine that the patient’s condition is so moribund that such efforts would be “medically futile.”

Medical Futility

As there is no definition of futility to apply uniformly to each case, some physicians fear the legal repercussions of failing to use all available tests, treatments and methods on a patient in death’s throes, often adding to the discomfort of the dying patient where intubation or a central line IV may be medically indicated as part of a course of treatment. Nonetheless, it may be ethically distasteful for a compassionate caregiver to increase the discomfort that accompanies several of these procedures, legal mandates notwithstanding.

Unfortunately, attempts to define the futility which would trigger an ethical obligation for the ED physician to provide palliative treatment have not met with success over the last 30 years. The American Medical Association (AMA) guidelines describe medically futile treatments as those having “no reasonable chance of benefiting [the] patient”4 without providing any black-letter “law” as to what that might be. As far back as 1991, the American Thoracic Society defined a life-sustaining intervention as futile “if reasoning and experience indicate that the intervention would be highly unlikely to result in a meaningful survival for that patient” and argued that physicians are not obligated to provide such treatments.5 In 1997, the AMA issued an opinion on medical futility in end-of-life care advising a “due process approach” in declaring futility but left if to the individual institution to determine what that may be.6 As of today, no consensus exists.

Some states or hospitals have attempted to circumvent the difficulty of establishing a definition of futility by legislation or policy. The Texas Advance Directives Act7 provides civil and criminal immunity to clinicians if they determine that further medical treatment is futile. The Act is triggered by disputes about medical futility when the patient (or surrogate) refuses to consent to withholding further treatment. In such case, a referral to an ethics committee is mandated and a finding by the committee that further treatment is futile becomes final. This leaves the patient’s family with the only option of going to court and requesting an extension of time before life-sustaining treatment is suspended so that an alternate facility can be sought to transfer the patient for further treatment. The Children’s Hospital Boston (CHB) policy8 allows a physician to make the case for unilateral withdrawal of life support over the patient’s (or surrogate’s) objection, but such a determination must be endorsed by the hospital leadership. This serves to make the declaration of futility an institutional decision and not just the individual decision of the care givers involved. The decision may be contested in court but there are no reported cases challenging this policy.

Surrogate Consent Difficulties

In situations with family present but no advance directives and no patient participation, the ED physician must rely on discussions with family for guidance as to the appropriate course of treatment consistent with the patient’s wishes. In such situations where there is little likelihood of survival, the first ethical issue may be the physician’s own beliefs about end-of-life counseling. According to the AMA,9 some states ( Illinois and Mississippi) have comprehensive laws allowing health care professionals to object conscientiously to participating in any medical service. Some others have promulgated legislation protecting healthcare providers from participating in treatments or procedures they find objectionable on moral grounds.10

In other instances, disputes may arise among family members about whether the dying patient expressed a preference for palliative care or extraordinary life sustaining measures in some previous family conversations. As no bioethics committee will be generally available to refer for a stat consult, absent clear and convincing evidence as to the patient’s wishes for symptomatic relief at the end of life, the ED physician is left with few choices. The physician may recommend transfer to another facility if the insistence of the family to continue aggressive life-sustaining treatments contravenes the physician’s ethical sense to “do no (more) harm,” or the physician may make a judgment call (hopefully after conferring with senior staff or the hospital attorney) regarding medical futility of further life-sustaining procedures. More likely, the physician, fearing legal action or state review, may be forced, against his better judgment and ethical beliefs, to continue life-sustaining treatment which will require poking, prodding, intubating or other procedures that serve only to prolong the inevitable and add discomfort to the already stressful dying process.

Being able to convince the decision maker to take a less aggressive treatment approach towards a patient at the end of his or her life, and to provide pain management, symptom control and strong psychosocial support may be possible if sufficient resources are available to have the extended discussions with the decision maker, but the time and ability required to develop the rapport necessary is often a luxury and a skill set not found in many EDs.


While there is no current law on the manner or extent to which end-of-life admissions to the ED must be handled, one only needs to look at Florida’s 2009 flu pandemic draft guidelines for a portent of things to come. Unless more resources are dedicated to end-of-life education to prepare for the additional pressures of the largest aging population this country is about to see, it will not be necessary to wait for a pandemic before the rationing of healthcare in the ED occurs and, shortly thereafter, finds its way onto a court docket.

1 ProPublica, Oct. 16, 2009
2 42 U.S.C.A. § 1395dd.
3 Israeli Journal of Emergency Medicine – Vol. 6, No. 2 May 2006
4 American Medical Association
Futile care, AMA Ethics Guideline 2.035.
5 American Thoracic Society
(1991) Withholding and withdrawing life-sustaining therapy. Ann Intern Med 115:478–485.
6 "Medical Futility in End-of-Life Care," adopted December 1996 (JAMA. 1999; 281: 937-41).
7 Chapter 166 of the Texas Health & Safety Code
8 doi: 10.1378/chest.09-1269 CHEST October 2009 vol. 136 no. 4 968-971
9 amednews Jan. 21, 2008
10 tenn. code ann. §68-11-224

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