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Postmortem procedures controversy unresolved
Value of training vs. consideration of family, ethics
From the time of the ancient Greeks, learning about the human body and how to manipulate and treat it has involved the use of cadavers. Western medicine still relies on the use of cadavers for teaching purposes, but one aspect of the use of dead bodies has emerged in recent years as a point of debate: Should medical personnel obtain consent from family members before practicing medical procedures on a newly deceased person?
Ethicists, medical organizations, clergy, and lawyers have weighed in on the matter, with little consensus. Most agree that having consent — either from the person before he or she died, or from his or her family upon death — is the ideal situation. However, barring easily and quickly obtained consent, opinions are split on whether medical personnel should conduct procedures on a body without the knowledge of family members.
The issues raised against requiring consent include: difficulty identifying some patients (particularly in emergency cases), fear that the family would refuse consent, concern about adding to a family’s grief, and expediency. Those in favor of requiring consent say that it reduces legal liability, is more considerate of the family and the deceased, and is simply the right thing to do.
Is harm done if consent is not obtained?
The American Medical Association (AMA) conducted a poll of medical students to find out students’ thoughts on performing procedures on newly dead patients. During their training, medical students are sometimes asked to practice procedures on recently deceased patients. According to the AMA, nearly 40% of critical care medical training programs in the United States employ practicing on newly deceased patients. The procedures include endotracheal intubation, placement of central venous catheters, surgical venous cutdowns, and thoracotomies.
According to the AMA survey, 54% of the students said the practice was acceptable as long as patients were told during admission that they may be subject to postmortem procedures. Seventeen percent said the procedure is not acceptable to them because they do not believe the educational value is great enough, and an equal number said they disapprove because family members usually are not made aware of the procedures.
Mary Beth Foglia, RN, MSN, of the Veterans Health Administration National Center for Ethics in Health Care in Washington, DC, says there is conflicting evidence regarding the necessity of performing procedures on cadavers at all.
"We found no evidence to support the claim that clinical training would be severely compromised if, in fact, fewer corpses were available as a result of requiring consent," she says. "The majority of authors publishing in respected journals concluded that the training advantage of practicing on the newly dead is definable, but limited.
"Plus, we know there are many training programs that simply don’t practice on the newly dead, and no one has suggested that these programs produce unqualified clinicians," added Foglia.
Consideration for the family aside, there are religious and cultural implications, ethicists point out. Practicing medical procedures on a dead body may violate that person’s religious or cultural customs regarding treatment of the body after death. Some religions and cultures believe that what happens to the body immediately following death has implications for the afterlife.
Medical associations weigh in
Recognizing that while a dead body might not be harmed by procedures done postmortem, the AMA in 2001 adopted a nonbinding policy that warns against performing procedures without consent.
"[Institutional] policies should consider rights of patients and their families, benefits to trainees and society, as well as potential harm to the ethical sensitivities of trainees, and risks to staff, the institution, and the profession associated with performing procedures on the newly deceased without consent," the AMA policy states.
The AMA urges physicians to inquire about the deceased’s expressed preferences concerning postmortem procedures. Physicians should obtain consent, or, if unable to establish either the patient’s preferences or consent from the family, they should avoid postmortem training practices on deceased patients.
"In the event postmortem procedures are undertaken on the newly deceased, they must be recorded in the medical record," the AMA policy states, addressing one of the major ethical issues involved in postmortem practice — evidence that physicians rarely tell patients’ families that postmortem procedures were performed.
"Some health care professionals report feeling angry — not so much by the practice of training on the newly dead, but rather, that the practice of training on the newly dead is concealed from families and the public," Foglia says.
Concern that asking the families beforehand might result in refusal for the practice might be based on an incorrect assumption, she notes.
"In general, we see willingness on the part of patients and next-of-kin to allow postmortem practice so long as consent is obtained," Foglia adds.
Some teaching hospitals have adopted the position that lack of a "yes" does not mean "no." In these institutions, postmortem procedures may be performed unless there is a previous refusal from the patient or family, and teaching may proceed if the family is unavailable for consent, according to a committee report by the American College of Emergency Physicians (ACEP).
Both the ACEP and the Society for Academic Emergency Medicine (SAEM) have studied the issue, because the emergency department is the scene of most practices on the newly dead.
ACEP’s Ethics Committee released a report in 2003 that spelled out some of the issues in practicing on the newly dead, and concluded that more research is needed.
In a report published in a recent issue of the SAEM journal Annals of Emergency Medicine, SAEM’s Ethics Committee strongly recommended that families be asked for consent before procedures are done on the newly dead. The SAEM report addresses, in particular, the need to avoid an appearance that such procedures are done secretively, out of consideration for the families and to maintain public trust in the medical profession.1
The Emergency Nurses Association endorses teaching skills and practicing on the newly dead, but only if consent is obtained, while the British Medical Association and Royal College of Nursing issued a joint statement that practicing on the newly dead should be an exceptional practice, and may only be justified if the body has severe head, neck, or facial injuries with the expectation that consent will be obtained from the family.
Foglia says some hospitals have skirted the consent issue by performing procedures on nearly dead patients before pronouncing them dead.
"The Wall Street Journal reported in 2002 that at one Midwestern hospital, emergency room physicians established an unwritten policy that they would no longer practice emergency procedures on the newly deceased without obtaining consent," she states. "But they now often use nearly dead patients to train the hospital’s residents, but don’t inform the family or ask for consent."
Foglia contends that this practice is indefensible from an ethical standpoint, and that teaching hospitals should set policies barring such procedures.
The question of who owns a dead body has been debated for hundreds of years. The general rule under British and American law is that bodies and body parts cannot be considered property.
However, tort claims resulting from postmortem procedures abound and cite such injuries as intentional infliction of emotional distress, intentional mishandling of a dead body, abuse of a dead body, negligence, and infliction of emotional or mental distress.
To recover on an action for intentional infliction of serious emotional distress, specific legal elements must be proven, including proving that the practitioner intended to cause emotional distress or knew that his or her actions would cause distress, that the conduct was "extreme" and "outrageous," and that the distress was almost unendurable. While those criteria might be difficult to reach, some legal experts say there is a legal risk to doing postmortem procedures without consent.
Gregory P. Moore, MD, JD, a physician with Kaiser Permanente in Sacramento, CA and frequent author on medico-legal issues, says some recent cases are declaring that families do have property rights to deceased loved ones, and that to obtain consent before performing postmortem procedures "is probably prudent."
Moore co-authored a 2002 article in which he speculated that trends in emotional distress lawsuits give hospitals and clinicians reason for caution.
"It is undeniable that we are in a time of increased sensitivity to personal autonomy and individual rights as reflected in both the medical and legal arenas," Moore wrote. "Traditionally, courts have not viewed any true property rights in a dead body, but recently have been willing to relabel and thus change this dogma. While the legal community has argued over the classification of the rights of families in their loved ones’ cadavers, there is no doubt that some kind of a right exists. Regardless of this technical analysis of the law, damages increasingly are being awarded for the emotional distress caused by mishandling of bodies. Medical liability insurance may not cover this type of transgression, placing physicians at significant personal risk if successful litigation ensues."2
Besides possible legal ramifications, the loss of public trust might be at stake, Foglia says.
"There is a strong presumption on the part of patients and families that health care professionals will tell them the truth about what they are going to do to the patient," Foglia says. "Families expect to be asked about practicing procedures on a recently deceased family member, and are often willing to give consent when approached.
"However, the practice as currently conducted is often shrouded in secrecy, known only to the clinicians engaging in it. This violates tenets of professional ethics such as disclosure and truth-telling and can contribute to undermining public trust in the integrity of health care institutions and providers."
1. The SAEM Ethics Committee. Ethics seminars: The ethical debate on practicing procedures on the newly dead. Acad Emerg Med 2004; 11:962-966.
2. Arora G, Moore G. Wrongful death, wrongful life, emotional distress — Death in the ED, a complex event. ED Legal Letter 2002; 13:23.