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We have all heard of some doctors refusing to care for the sickest patients because embracing such a risk could impact their outcome statistics. Colloquially known as cherry-picking. Risk adjustment should address that concern. Yet, it still happens.

Here’s a new one. Keeping a patient alive much longer than the family would accept to keep the transplant program on safe footing and away from federal scrutiny.

ProPublica published a story on the heart transplant program at Newark Beth Israel Medical Center. The transplant program’s one-year survival rate had dipped to 84.2% in 2018. Six of 38 of its patients had died within one year of the procedure. This brings us to the case of Darryl Young. He was 61 years old when he had his transplant. He never woke up and remained in a persistent vegetative state. Had the family decided to make the patient comfort care only, he would have been the 7th death within the one-year period. The one-year survival would have dipped to 81.6%. The national average is 91.5%.

ProPublica reported that Margaret Camacho, MD, who performed the majority of the heart transplants urged staff to “take one for the team” in keeping Young alive. What did that mean? It meant keeping the family in the dark regarding making decisions about their loved one. Note: One year after his transplant, Young was still in the hospital, alive, and unchanged neurologically. He remained in a persistent vegetative state.

Since the transplant, Young had suffered from pneumonia, strokes, seizures and a fungal infection. The Newark transplant team believed that he would never wake up or recover function, according to current and former staff members familiar with his case, as well as audio recordings. Yet they wanted to do all they could to keep his new heart beating.

How did the family react? Predictably, they were livid. Young’s daughter stated: “How dare you take it upon yourself to withhold such information from the family? They took a decision away from us.”

She has a point.

Mark Zucker, MD, the director of the hospital’s heart and lung transplant program said the strategy was a “very unethical, immoral, but unfortunately, very practical solution because the reality here is that you haven’t saved anybody if your program gets shut down.”

He does not have a point.

Programs get shut down for a reason. If the mortality rate is unacceptably high, then perhaps patients should be treated at other centers. Or the underlying problems at the suspect institution should be fixed. Or both.

In the past decade, more than 20 transplant programs lost Medicare funding after CMS found deficiencies; most shut down, according to the agency. An additional 40 reached a Systems Improvement Agreement with CMS, allowing them to continue receiving federal funding while getting back into compliance with the agency’s requirements.

It is not as if Newark Beth Israel Medical Center is the only heart transplant center in the region. There are others.

Apparently, the strategy the institution used was “time tested.”

The hospital extended the life of a lung transplant patient. Its first lung transplant patient stayed at the hospital until day 366. Then that patient was sent to rehab and died the next day.

For ethics to mean something, a “practical solution” cannot be the excuse for an ethical lapse. While there may be situations where some patients are prioritized over others (such as triage in mass casualty situation), even those situations are grounded in an ethical framework. The more likely “practical solution” was that those working at the institution would keep their jobs. This means putting their interests above those of their patients. Oh, and the institution and physicians would be paid handsomely for the keeping such patients alive.

I think this is shameful. What do you think? Click here to join the discussion below.

The weeks preceding a patient’s death are often the most emotionally charged – both for the attending doctors and for the patient’s family. You must interpret human emotions, anticipate medical outcomes, and consider any potential legal action that will judge your actions in the event of an adverse outcome. These volatile periods have been the focus of many past publications.  

Prepare for them by reading the articles shared below… 

READ: “Doc, how long do I have to live?”

READ: Can NC Physicians Prescribe Meds to Suffering Terminally Ill Patients to Precipitate a Peaceful Death?

READ: “Grief as My Guide. How My Sister Made Me a Better Doctor.”

Medical Justice provides doctors with solutions to emergent medico-legal threats – whether that threat takes the shape of an irrational patient threatening extortion, a defamatory online review, or something entirely unanticipated. Review the benefits of membership – or click here to jump on board now. 

Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.