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Several people have recently urged me to consider studies demonstrating the error rates in diagnosing PVS. While I have yet to do so, I did notice this appellate opinion published yesterday in Wisconsin, and briefly reported by the Chicago Tribune.

In 2000, Tywanda Luckett suffered permanent severe brain damage allegedly due to medical malpractice. In a damages action brought in 2003, one of the defendants asked the plaintiffs to admit that Tywanda was in a PVS and that the PVS was permanent. Plaintiffs made those admissions. Presumably both treating physicians and/or retained experts had reached this conclusion. Notably, plaintiff's counsel made the admissions knowing that they would substantially reduce the value of the case both for the plaintiffs and for himself.

In preparing for trial, plaintiffs' counsel found doctor's notes stating that, in 2001, Tywanda could "follow simply commands," "comprehend some of what is said to her," and is "aware" and "responsive." Since such evidence strongly suggests that Tywanda was not in PVS, counsel sought to withdraw the admission. The trial court allowed this and the appellate court affirmed, even though Tywanda is now deceased and defendants cannot examine her. Consequently, the value of the case has now changed dramatically with the addition of five years of pain and suffering damages.

With the end of classes, I am catching up on some reading. I just read this article from the February 8, 2007 New England Journal of Medicine. Curlin et al. show that "14% of patients -- more than 40 million Americans may be cared for by physicians who do not believe they are obligated to disclose information about medically available treatments they consider objectionable."

I find this troubling. While futility policies (and laws) are aimed at enabling providers to avoid providing treatment they deem ethically or professionally inappropriate, those policies and laws always inform the patient/surrogate and allow the opportunity to transfer. The objective is to allow specific providers to decline to provide some treatments, not to altogether prohibit the patient from getting the treatment. The objective is to allow providers to extricate themselves from the administration of interventions.

But Curlin et al.'s study suggests that many physicians' refusals look more like evangelism or proselytism. They never even mention some alternatives (even life-preserving or life-sustaining alternatives). Therefore, these physicians' patients/surrogates do not even know to look for a transfer or to seek review.