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Do Those Who Cannot Speak Really Have a Voice?

Published online by Cambridge University Press:  29 April 2021

Betty Dew
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Extract

Joseph Finelli, after a heart transplant, is being artificially maintained by medications and a gastrostomy tube (G-tube). He is not brain dead nor in a persistent vegetative state. In my role as court-appointed Guardian ad Litem (GAL-court investigator), it appears to me that Mr. Finelli is being treated against his stated goals and values. After applying the substituted judgment factors, I recommend the withdrawal of the medication which sustains his life. His family adamantly opposes my position.

Joseph Finelli is a 57-year-old Italian-American Catholic husband and father of four adults. Mr. Finelli was an “extremely active” man. He enjoyed training dogs, hunting, running, and was an “avid” biker. Debilitating congestive heart failure eventually confined his activities to walking ten steps at a time. Surrendering his active life produced pronounced depression.

Type
Article
Information
Law, Medicine and Healthcare , Volume 20 , Issue 4 , Winter 1992 , pp. 316 - 319
Copyright
Copyright © American Society of Law, Medicine and Ethics 1992

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References

Substituted judgment considerations regarding current medical procedures include: The benefits and risks of treatment; benefits and risks of withdrawing treatment; impact on the family; religious considerations, and expressed preferences. See, Superintendent of Belchertown v. Saikewicz, 370 N.E.2d 417 (1977).Google Scholar
The issues of hydration, nutrition, and removal of the G-tube were never addressed. This is because the patient was awake and might have experienced discomfort, and also because it was not necessary. To stop the infusion of the immunosuppressive medication, according to his cardiologist, would cause death within six weeks. Death would be due to rejection and then failure of the transplanted heart. The physician assured me that Mr. Finelli could be made comfortable with medication throughout the rejection.Google Scholar
The family blames the surgeons, accusing them of negligence. Malpractice action was not filed until after my report was filed, one week before the statute of limitations ran out.Google Scholar
Two and one-half years at the time of my appointment. It was a total of three years by the time the case was resolved. He was in a private room ($500/clay), with a Kinair bed ($28,000). Insurance coverage ceased when no discharge plan was forthcoming. No payment for that room was received for over one year.Google Scholar
For the family, nursing home or rehabilitation placement was out of the question. They wanted him home. Medicaid application was also out of the question, because, as Mrs. Finelli told me, “I don't want THAT TYPE of person in my home!”Google Scholar
Administration of immunosuppressive medication through a G-tube is a medical procedure. Because it is contributing directly to his “maintenance…for a period of several years, it is intrusive treatment as a matter of law.” Brophy v. New England Sinai Hospital, Inc., 398 Mass. 417, 435 (1986) (emphasis added) (addressing the issue of fluid and hydration maintenance of a person in a persistent vegetative state). Also, “to be maintained by such artificial means over an extended period is not only intrusive but extraordinary.” Id. at 437.Google Scholar
Block, WHDH-TV, July 11, 1991.Google Scholar
The settlement was, until the malpractice action is tried (and without any implication of admissions), the hospital will provide some compensation to help pay for an aide for the night hours. Mr. Finelli was to be discharged home within ten days, and Mrs. Finelli was to become the permanent guardian with many restrictions on her power. The substituted judgment issue would not be pursued by any party.Google Scholar
“Preponderance of the evidence” standard means more probable than not. See Custody of a Minor, 377 Mass. 876, 389 N.E.2d 68 (1979).Google Scholar
See generally, 17 Law, Medicine & Health Care (Winter, 1989) (a number of articles addressing the role of the hospital in treatment withdrawal decision-making, specifically referring to the Linares case.) Indeed, I recall from my nursing days hearing stories of physicians “tripping” over respirator plugs.Google Scholar
The doctrine of informed consent declares that a physician has the duty to disclose “sufficient information to enable the patient to make an informed judgment whether to give or withhold consent to a medical or surgical procedure.” Harnish v. Children's Hosp. Medical Center, 387 Mass. 152, 154–155 (1984).Google Scholar
Some examples addressed in my report to the court include: One son allegedly slapping a nurse, then threatening to shoot both her and Mr. Finelli, blocking access to Mr. Finelli when he was still acutely ill, and posting, in his room, a number of hand-written instructions for the nurses on how, what, and when to give medication, do treatments, and feedings.Google Scholar