Death and the Pregnant Woman a True Dilemma

DOI: 10.1097/JPN.0000000000000131

LEGAL ISSUES AND RISK MANAGEMENT

Lisa A. Miller, CNM, JD

Death and the Pregnant Woman A True Dilemma

Love and death are the two great hinges on which all which states “A person may not withdraw or withhold human sympathies turn. life-sustaining treatment under this subchapter from a pregnant patient.”2 The hospital was eventually ordered B. R. Hayden, American poet to remove life support in a ruling that did not rest on irth and death are usually portrayed as 2 op- the constitutionality of the law, but rather a finding that posite ends on the spectrum of life, but any- the law did not apply to a patient who was legally Bone working in obstetrics knows that they can dead (brain death constituting legal death in Texas), be intertwined and, in some cases, create the ultimate differentiating Mrs Munoz’s˜ situation from a pregnant dilemma. This column discusses a rare but deeply dis- woman in a persistent vegetative state* (PVS) under turbing event, the situation of brain death in a mother Texaslaw.MrsMunoz˜ was removed from life sup- during pregnancy. The column is not intended to pro- port on January 26, 2014, and her body released to her vide answers to the dilemma; rather, it is written to family. encourage dialogue and awareness of the multiple is- Statutes vary from state to state regarding advance sues that will arise for nurses, physicians, and family directives, with only a handful of states offering a members when such a tragedy ensues. clear option related to pregnancy, others where preg- All clinicians are likely familiar with the use of ad- nancy automatically invalidates advanced directives, vance directives, also known as living wills, which al- and many states whose statutes are silent with regard to low individuals to provide instructions for their care pregnancy.3 A few states use a viability standard regard- in cases where there is a terminal condition and they ing enforceability of advance directives in pregnancy.4 cannot express their wishes. Note that this differs from In all these cases, advance directives relate only to sit- a healthcare power of attorney, which is a legal in- uations where the issue is PVS, or a terminal or irre- strument that allows a person to designate someone to versible illness resulting in incapacity. But this may be make decisions in the event of incapacitation. But what unclear, as was the case in Texas, where life support many families and clinicians may not realize are the lim- was continued even after brain death. This means that itations placed on advance directives in cases of preg- families and clinicians may be at odds with the legal nancy. One of the most disturbing issues is that the va- system and/or each other in cases where devastating lidity of advance directives for a pregnant woman varies tragedy has occurred. Patients and families rely on the state by state. And application of the law may require healthcare system to help them in such situations; yet, interpretation by the courts, as was the case in Texas it can be difficult when there is little clarity regard- for Marlise Nicole Munoz,˜ a 33-year-old paramedic who ing the legality of end-of-life decision making in these suffered a pulmonary embolism on November 26, 2013, situations. Recognizing the complexity of these issues, and was declared brain dead on November 28, 2013, the American College of Obstetricians and Gynecolo- at John Peter Smith Hospital in Fort Worth, Texas. Mrs gists (ACOG) recently published a committee opinion Munoz˜ was 14 weeks pregnant.1 When her husband, on end-of-life decision making.5 Noting that some state Erick Munoz,˜ also a paramedic, asked for life support to laws are at odds with respecting a pregnant woman’s be removed following the diagnosis of brain death, the directives, ACOG encourages physicians “to support hospital refused, citing the Texas Advance Directive Act, *For a discussion of the legal difference between brain death and Disclosure: The author has disclosed that she has no significant relation- persistent vegetative state, see http://healthcare.findlaw.com/ ships with, or financial interest in, any commercial companies pertaining patient-rights/brain-death-vs-persistent-vegetative-state-what-is- to this article. the-legal-difference.html.

The Journal of Perinatal & Neonatal Nursing www.jpnnjournal.com 273

Copyright © 2015 Wolters Kluwer Health, Inc. Unauthorized reproduction of this article is prohibited. a pregnant woman’s autonomy and decisions when- family’s knowledge of her preferences. Acting as an ever legally possible.5(p265) ACOG further states that the advocate, clinicians can assist families by becoming “health care facility should not attempt to contravene knowledgeable about the laws in their state, opening her wishes and values, whether she voices them or discussions about potential conflicts and personal bi- they are relayed by a surrogate decision maker.5(p265) ases or concerns, and considering frankly their ability The difficulties families and clinicians face in these to remain compassionate and supportive and to recuse catastrophic situations are enormous. Many clinicians themselves if for whatever reason they cannot provide may find it difficult to provide unbiased support for such care. The ACOG committee opinion, and other lit- difficult decisions made in these cases, whether those erature cited herein, is worthy of review, and midwifery decisions come in the form of advance directives, surro- and obstetric practices should consider discussion of gate decision makers, or the legal system. The follow- these issues as a routine part of prenatal care. Women ing recommendations for clinicians are based on the and their families may be reluctant to discuss these is- author’s review of the subject matter and are not meant sues, and the situations are very rare, but the case of as inclusive, exclusive, or authoritative. Rather, they are Marlise Munoz˜ serves as an all-too-disturbing caution- provided as discussion points and potential proactive ary tale, and women and families deserve thoughtful steps clinicians may want to consider before they are support and guidance from healthcare providers. faced with the tragedy of incapacity or brain death in a pregnant woman. Consider the following: —Lisa A. Miller, CNM, JD r Founder What are the laws in my state regarding advance Perinatal Risk Management and Education Services directives and pregnancy? r Portland, Oregon What are my own personal feelings regarding end- r of-life decisions and pregnancy? References How can I provide supportive care to family mem- 1. Texas judge: remove brain-dead woman from ventilator, bers affected in such cases? other machines. CNN. January 24, 2014. http://www.cnn. r com/2014/01/24/health/pregnant-brain-dead-woman-texas. How can I ensure that clinicians where I work Accessed August 15, 2015. are informed and open to discussion and dialogue 2. Texas Health and Safety Code. Title 2, Subtitle H, Chapter 166 about this issue? Advance Directives, §166.049. http://www.statutes.legis.state. tx.us/Docs/HS/htm/HS.166.htm. Accessed August 15, 2015. In perinatal care, we are more familiar with life, not 3. Rinkus K. The pregnancy exclusion in advance directives: are death. Yet, the ability to provide help and assistance women’s constitutional rights being violated? Public Int Law to a family facing the devastating loss of a pregnant Rep. 2014;19(2):94–100. 4. Burkle CM, Tessmer-Tuck J, Wijdicks EF. Medical, legal, relative, or her incapacity, requires as much support if and ethical challenges associated with pregnancy and catas- not more than that associated with birth. State laws and trophic brain injury. Int J Gynaecol Obstet. 2015;129(3):276– hospital compliance with perceived law may conflict 280. doi:10.1016/j.ijgo.2014.12.011. 5. Committee opinion no. 617: end-of-life decision making. with the pregnant woman’s wishes and values, whether Obstet Gynecol. 2015;125(1):261–267. doi:10.1097/01.ACOG. expressed through advance directive or through her 0000459869.98866.91.

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