End-of-Life Choice, Palliative Care and Counseling

Case Against For-Profit Hospice Goes Forward Vitas Allowed Terminally Ill Woman to Die in Agonyby Jay

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Compassion & Choices, the nation’s oldest and largest nonprofit organization working to improve care and expand choice at the end of life, today applauded the decision to let the Hargett v. Vitas case proceed. Judge Dennis Hayashi of Alameda Superior Court denied the motion for dismissal by Vitas Hospice, the nation’s largest for-profit hospice chain. The parents of Michelle Hargett-Beebee brought the lawsuit. Michelle was a Los Gatos mother of three young children who, while under the care of Vitas Hospice, died a painful death from pancreatic cancer in December 2009.

The lawsuit seeks accountability from Vitas Hospice for its reckless failure to treat Michelle’s pain as she died and for its failure to inform her of an option that could have spared her days of unrelieved agony. If informed, Michelle could have chosen a medical intervention called “palliative sedation.” The California Right to Know End-of-Life Options Act (Right to Know Act) requires that healthcare providers inform terminal patients, upon request, of all their end-of-life options. Vitas failed to do so.

Jim Geagan and Kathryn Tucker, who represent the plaintiffs, expressed satisfaction that the case would go forward. Geagan is a noted California trial attorney; Tucker is Director of Legal Affairs for Compassion & Choices. This is an important case testing whether failure to inform a terminally ill patient with intractable pain about palliative sedation is outside best medical practice,” said Tucker. Tucker and Geagan have successfully achieved accountability in other cases involving inadequate end-of-life care, most notably in Bergman v Chin, also filed in Alameda County. Bergman was the first case in the nation to hold a physician accountable for elder abuse in failing to properly treat pain associated with terminal cancer.

Vitas had moved the case be dismissed, arguing that Michelle was not a “dependent adult,” nor was Vitas a “custodial caregiver,” in the meaning of the California Elder and Dependent Adult Abuse Act. The plaintiffs responded that Vitas’ own records reflect its awareness that Michelle needed help with most every activity of daily living including dressing, feeding and toileting.

Vitas also argued the suit alleged “no egregious acts.” Whether Vitas acted egregiously is a matter of judgment, appropriate for trial, the plaintiffs argued. They allege Vitas never brought Michelle’s pain under control, that they provided insufficient pain medication, that upward adjustments in the amount of pain medication were miserly. Neither Michelle nor her parents learned of palliative sedation, despite the fact the Right to Know Act was in effect at the time and that Michelle was exactly the type of patient for whom this intervention would have been appropriate to consider.