The New Big Chill

When the New England Journal of Medicine puts a journal article on their website, and makes it openly accessible, it usually is worth reading.  Most of their stuff requires a subscription.  They provide open access only when the editors think that an article is crucial for some kind of current, important public discussion.

The January 5, 2006, edition has such an article: The Big Chill — Inserting the DEA into End-of-Life Care, by Timothy E. Quill, M.D., and Diane E. Meier, M.D.  The authors express concern about a proposal to expand the authority of the Drug Enforcement Administration (DEA), to include medical judgment-making about the use of certain medications in end-of-life palliative care.  

A bit of background: The DEA is a part of the Department of Justice.  It is a law enforcement agency.  It is not a medical agency.  Traditionally, the practice of medicine is regulated by state agencies.  Each state has a Board of Medicine and a Board of Pharmacy.  Determinations about appropriate use of prescription medication are the responsibility of the state boards.  

On October 5, 2005, the U.S. Supreme Court heard oral arguments in Gonzales v. Oregon. On the surface, this case is about the legitimacy of physicians' prescribing of medications under Oregon's Death with Dignity Act and whether the federal government can overrule the states in defining "legitimate medical practice." Just beneath the surface, however, lies the risk of empowering agents of the Drug Enforcement Agency (DEA) — whose traditional role is to prevent drug abuse and diversion — to evaluate the end-of-life practices of physicians whose patients die while receiving prescribed opioids or barbiturates. A finding in favor of the Justice Department would not only nullify the Death with Dignity Act, permitting the DEA to penalize physicians for providing medications to hasten the deaths of terminally ill patients, but also have a chilling effect on physicians' willingness to treat patients' terminal symptoms.

The Big Chill is one of those articles that is difficult to write about using excerpts, since every paragraph is important.  But to get to the main point, the authors cite some legal cases in which large judgments were rendered against physicians, when juries determined that those physicians had not done enough to relieve pain and suffering of persons who were dying.  

It is easy to see the problem here.  If Mr. Gonzalez gets his way, then physicians will be in a bind.  If a physician does not give enough medication, there is a risk of civil liability.  If too much medication is given, there would be a risk of criminal prosecution.  

The authors do not carry this argument as far as I would.  I would add that, since different standards are applied in the civil and criminal determinations, it is even theoretically possible that a doctor treating a dying patient could be sued for not providing enough relief of pain and suffering, AND, in the same case, be found guilty of giving too much medication.  The authors point out that it should be possible, in 90% of cases of terminal suffering, to provide adequate pain relief.  But in 10% of cases, it is not.  Imagine one of the cases in which it is not.  

For the infrequent instances in which all palliative care alternatives have been exhausted without providing adequate relief from the symptoms of advanced terminal disease, there is a growing consensus that sedation to the point of comfortable sleep is permissible.

The physician keeps escalating the dose of medication, but cannot attain adequate pain control.  Then a sedative is given, and the patient dies.  The family sues because adequate pain control was not achieved, and the DEA prosecutes because, in their opinion, the sedative hastened the death of the patient.  Unlikely, perhaps, but the absurdity of the situation points out the absurdity of the DOJ's initiative.

Incidentally, this is an instance of an Administration trying to exert strong centralized executive control, overriding established law.  There seems to be a lot of that going around lately.