Ethical Controversies Surrounding the Management of Potential Organ Donors in the Emergency Department

Arvind Venkat, MD; Eileen F. Baker, MD; Raquel M. Schears, MD

J Emerg Med. 2014;47(2):232-236. 

Abstract and Introduction

Abstract

Background: On a daily basis, emergency physicians are confronted by patients with devastating neurological injuries and insults. Some of these patients, despite our best efforts, will not survive. However, from these tragedies, there may be benefit given to others who are awaiting organ transplantation. Steps taken in the emergency department (ED) can be critical to preserving the option of organ donation in patients whose neurologic insult places them on a potential path to declaration of brain death. Much of the literature on this subject has focused on the utilitarian value of clinical interventions in the potential organ donor to optimize the likelihood of effective organ procurement.

Case Presentation: In this article, we present an actual case that reveals additional ethical perspectives to consider in how emergency physicians manage patients in the ED who can be confidently predicted to progress to death, as attested by neurologic criteria, and become organ donors. The case involves a patient with a devastating, nonsurvivable intracerebral hemorrhage who rapidly progressed to hemodynamic instability.

Discussion: This case reveals how the current organ donor referral and maintenance system raises ethical tensions for emergency physicians and ED personnel.

Conclusion: This process imposes limitations on communication with patient surrogate decision-makers while calling for interventions with the primary purpose of benefiting off-site patients awaiting transplantation.

Introduction

On a daily basis, emergency physicians are confronted with patients with devastating neurological injuries and insults.^[1] Despite our best efforts, some of these patients are destined to die from their intracerebral hemorrhage, ischemic stroke, or traumatic brain injury. Although the tragedy of this event is obvious for the patient and the patient's family, it may result in new hope for individuals awaiting organ transplantation. Emergency physicians commonly are the first doctors to encounter individuals at the interface between life and death, between trying to save the patient and preserving the option of organ donation in the patient who cannot be saved. This is especially true when considering donation after neurologic determination of death, which still represents the primary mechanism for deceased organ donation in the United States.^[2] Continuous hemodynamic management is required both to verifiably establish that brain death has taken place under established protocols and to maintain organ perfusion to allow effective procurement and transplantation.^[3]

It is estimated that every day, on average, 18 individuals die awaiting transplantation in the United States.^[2] There is retrospective evidence suggesting that early organ donor identification from the emergency department (ED) may be associated with increased organ procurement.^[4] However, this evidence does not take into account other ethical viewpoints beyond the utilitarian outcome of maximizing the number of organs procured. In this article, we present a case that reveals other ethical perspectives deserving consideration in how emergency physicians manage patients in the ED who may progress to death by neurologic criteria and become organ donors.

Case Presentation

A 52-year-old woman presented to the ED having been "found down." Per emergency medical services, she had a history of hypertension that was poorly controlled, and her family found her face down in her bedroom. She was noted to have poor respiratory effort and was intubated without medications prior to arrival at the ED. On examination, the patient had sluggish pupillary reflexes, but otherwise, no significant neurological function. Computed tomography scan revealed a large intraparenchymal hemorrhage with intraventricular extension and severe midline shift.

Discussion

Referral to the Organ Procurement Organization

The first ethical point in the ED management of a patient who is likely to die from a devastating neurological insult is whether or not to make a referral notification for potential organ donation to the local organ procurement organization (OPO). Under Medicare and Joint Commission regulations, hospitals are required to have agreements in place with their local OPO to refer patients at imminent risk of death or who have died after serious neurological insult or injury.^[5] Common triggers to set potential organ donation in motion include: 1) intubation with consideration of brain death examination or anticipated rapid deterioration to brain death; 2) Glasgow Coma Scale score < 6; and 3) discussions between patient's family members and the emergency physician, initiated by either side, to withdraw life-sustaining treatment.^[5] Although EDs may be the location for identifying such patients, emergency physicians serve as the referring provider to the OPO, which may create an ethical dilemma and cognitive dissonance.

One role of emergency physicians in the health care system is to aggressively resuscitate patients presenting in extremis and to make medical judgments on when such efforts may be futile. However, once a medical judgment is made that a patient is likely to expire from neurological insult, emergency physicians are precluded by Medicare regulations from discussing organ donation with the potential donor's family without specialized training as a designated requestor.^[5] The basis of this regulation is evidence that specialized training as a designated requestor leads to a higher rate of consent by grieving family members for organ procurement.^[6]

Yet, a Department of Health and Human Services Inspector General Report on Medicare's organ donation regulations noted that physicians regularly view the requirement of designated requestor training as an intrusion on their ability to communicate honestly with patient families.^[6] This report also states that there is little incentive for an OPO to train designated requestors among hospital staff. Medicare holds the OPO ultimately accountable for meeting standards on deceased organ procurement. As a result, few designated requestor-training programs are publicized or offered by OPOs.^[6]

As this report notes, the implications of the lack of designated requestor training are profound. First, "among hospital staff, the designated requestor requirement may be leading to an unintended result. Rather than moving toward a collaborative approach to requesting consent, this provision runs the very real risk of turning consent into an OPO function, with little involvement from hospital staff. Our survey responses from hospitals and our visits with them supported this finding. Several of the qualitative responses to our hospital survey indicated that their staff members were [sic] happy to turn requesting donation over to the OPO, because the hospital staff felt untrained and uncomfortable in approaching families." Second, "an even more far-reaching problem may be the gradual disenfranchisement of hospital staff from involvement in organ donation. To the extent that nurses and other hospital staff see organ donation as 'the OPO's job', one in which the hospital staff should have no involvement, there is likely to be little true collaboration or interest in organ donation".^[6]

Consequently, current Medicare regulations can lead to an untenable situation for emergency physicians. They may have full knowledge that the most likely outcome for a patient is brain death and, with professional expertise, have the necessary skills to communicate this prognosis to surrogate decision-makers, and discuss the options in management needed to permit consideration of organ donation. However, emergency physicians are limited by regulations in what they can communicate to a patient's family regarding organ donation, while simultaneously having an obligation to convey patient information to an outside organization, the OPO. Logistically, if the OPO representative is not readily available, a common occurrence during off-hours and at outlying facilities, the discussion about organ donation may be delayed and the opportunity for donation irretrievably lost.^[6] Alternatively, the family may be left with a false impression regarding the patient's prognosis as resuscitative measures are continued while awaiting the arrival of the OPO representative.

Such dissonance might be managed internally by the emergency physician by adopting a perspective that implementing aggressive care measures in a rapidly deteriorating patient, such as the one presented, is simply preserving the option of organ donation.^[7] However, the public perception of the ED as a place completely focused on active resuscitation of acutely ill patients would be compromised if there was a wider dissemination of the recommendation created by the current referral process to continue or add aggressive treatments even when there is a good faith belief they will not benefit the patient, but rather are done to preserve the option of organ donation. By continuing to implement such measures without family input, emergency physicians are presuming to know what the patient would value most in the dying process, a presumption that may, in fact, be wrong.^[7] This need to presume patient wishes may partially explain recent survey data showing that ED staff view the organ donor referral process and OPO staff less favorably than other health care providers.^[8]

This public perception issue should not be discounted as simply one of ignorance on the part of lay individuals of the mechanics of the organ donation process. Empirical studies on public attitudes toward organ donation bear out that a fundamental basis for supporting transplantation is the perception that all efforts are exhausted in resuscitating the patient prior to moving toward organ procurement.^[9] For the general population, the perceived primary locus of such resuscitation is the ED, the gateway to the acute health care system. If emergency physicians are seen as conveying information incompletely or in a delayed fashion on prognosis and potential patient outcomes (i.e., progression to brain death and organ donation), this would have grave implications for the public trust in emergency medicine and the likelihood that individuals would elect to be organ donors in the first place.

Case Example of the Dilemma

Assessment of the patient, by both the emergency physician and in consultation with Neurosurgery, revealed that she had suffered a nonsurvivable insult. To avoid excluding the possibility of organ donation by rapid withdrawal of life-sustaining treatment, the emergency physician communicated to the family simply that her prognosis was poor and that further decisions would be required regarding the course of her medical treatment. This allows one to await the arrival of the OPO representative, who will assess the patient as a potential organ donor and discuss prospectively the option of donation with the family. Prior to the arrival of the OPO representative, the patient becomes hemodynamically unstable, requiring pressors, and voiding large amounts of urine, suggestive of brain herniation and the onset of diabetes insipidus.

Maintenance of Potential Organ Donors in the ED

Under both Medicare and Joint Commission regulations for hospitals and the Model Uniform Anatomical Gift Act (UAGA) passed in most states, there is a legal requirement for hospitals to have an agreement with their OPO for the maintenance of potential organ donors.^[5] The Model UAGA goes further, not allowing the removal of life-sustaining treatments until the potential of a patient to be an organ donor has been determined by the OPO. A discussion among the treating physician, surrogate decision-maker, and OPO representative must take place when there is conflict between family wishes to withdraw life-sustaining treatment and OPO wishes to continue such therapies to preserve the option of organ donation.^[10] The term "maintenance" is purposefully left undefined. Maintenance can mean: 1) continuing existing treatments in a patient who is a potential organ donor; 2) escalating existing treatments but not adding further treatments; 3) implementing full organ preservation protocols designed to maximize perfusion until a decision on donation has been made, or 4) performing surgical procedures to control damage to allow the performance of brain death examinations.^[11,12]

Regardless of what maintenance means, for emergency physicians the implementation of interim support orders to preserve the option of organ donation, especially in a patient who is considered unsalvageable or one for whom family members wish to withdraw life-sustaining treatment, results in three ethical tensions. First, the general practice of the treating physician not notifying the family of potential organ donation creates an ethical conflict when interventions are implemented without clear communication with the surrogate decision-maker as to their purpose. Some commonly supported maintenance protocols that have been shown to increase the number of organs procured and transplanted per donor may even involve invasive procedures, such as central lines, which normally require informed consent but in this context are considered exempt by the Institute of Medicine.^[11,13] These protocols, originally developed for maintenance of organ perfusion after brain death, are now recommended to be implemented prior to that declaration based on a likelihood of progression to that state.^[11,13,14] Emergency physicians, therefore, can be placed in the ethically untenable position of taking part in inadequate communication with families about the reasons for their medical actions. This threatens the public trust in the integrity of emergency medicine practice and conflicts with the professional ethical obligations of emergency physicians to explain in a forthright manner the justification for the treatments implemented in the ED.

Second, to effectively maintain potential organ donors and maximize organ procurement outcomes, a rather detailed set of interventions are recommended.^[11,13] Executing such a protocol in a busy ED requires significant resources. These resources include the emergency physician's time, which might justifiably be better spent on the care of patients who are likely to survive. There is no doubt that, from a purely utilitarian viewpoint, maintenance of the potential organ donor could benefit multiple patients. However, such calculations should also consider how the physician's energy might be better utilized caring for undifferentiated patients presenting to the ED. As a general ethical principle, the professional obligations of emergency physicians are primarily to the patients in their department. The current protocols on the management of potential organ donors extend the professional obligation of emergency physicians beyond that boundary, potentially at the cost of their other patients.

Finally, if a patient decompensates and is unlikely to survive, the cost of the maintenance protocol implemented while discussions are held regarding organ donation become relevant. In general, OPOs assume the cost of the processes of organ donation. But at what point this assumption of cost takes place is relevant to emergency physicians participating in the process. Some possibilities include: 1) only after donor surrogate consent; 2) when brain death occurs with consent based on organ donor designation on a driver's license; 3) during the discussions regarding organ donation but prior to brain death declaration or surrogate consent; or 4) at the time of potential organ donor referral to the OPO. There is an ethical obligation for emergency physicians only to implement and bill for treatments that are for the benefit of the patient. The cost of protocol measures executed once the patient is believed to be beyond resuscitative efforts and solely for the purpose of organ preservation should be paid by the OPO, even if the prospective donation does not ultimately take place. Emergency physicians, to meet their ethical obligations, should know in advance how the agreement between the local OPO and their center addresses this issue.

Case Resolution

To temporarily stabilize the patient, the emergency physician began normal saline boluses, and again spoke with the family, explaining that the patient was becoming unstable. The emergency physician stated that options for what she may have wanted in her dying process could be limited unless there was rapid action. The emergency physician did not discuss the details of organ donation with the family, but acknowledged that maintaining her hemodynamically would allow a fuller discussion of the patient's wishes moving forward. Fortunately, the family understood that death was imminent and stated that the patient would have wanted to be an organ donor and to do what was necessary to preserve that option. The emergency physician moved quickly to place a central line for providing continuous pressors, and gave DDAVP to stabilize the patient. The emergency physician transferred her to the intensive care unit (ICU) for further management and clinical determination of brain death.

Conclusion

In essence, the current organ donor referral practice seems to recommend a suspension of the professional judgment of emergency physicians. They are pointed toward referring patients early to the OPO even when the resuscitative process is only beginning and prognosis may be in doubt. Should their experience indicate that the patient is likely to die, emergency physicians are expected to continue or implement measures whose sole purpose at that point is to preserve the option of organ donation until the OPO representative arrives. They are expected not to communicate directly with the family about the reason for these interventions because treating health care providers are precluded from discussing organ donation under current referral policies. This can be a special burden at times of high ED and ICU census or when delays occur.

A better solution to address all of these ethical issues would be to allow honest and forthright communication by emergency physicians to the family as to the status of patients in general who are viewed as potential organ donors and where OPO referral has taken place. Open communication should include an explanation of the resuscitative efforts to date, the likely prognosis of the patient, and an honest laying out of the options in the dying process (if that stage has been reached) by the treating emergency physician regardless of whether or not the OPO representative is present. Then family members, taking into account any previously documented patient wishes on organ donation and knowing that the possibility of saving the patient has passed, can forthrightly express what the patient would want. The family would better understand that the real decision then surrounds whether the dying process would permit organ donation. True informed consent would allow emergency physicians to meet their ethical obligations to the patient who may progress to being an organ donor by attempting to save that individual first and, if that fails, to explain to family members, forthrightly, that a referral and certain interventions are required to preserve the option of organ donation.

The current practice of separating communication on organ donation from the treatment team while simultaneously calling for early referral and organ donor management, gives only the appearance, but not the reality, of preserving ethical integrity. Instead, it creates ethical tensions that fall squarely on the emergency physician and ED personnel. If there is value in organ donation, which we profoundly believe there is, there should be a way to meet the ethical obligations of all involved.

Supplementary Data

Supplementary data related to this article can be found at https://dx.doi.org/10.1016/j.jemermed.2013.10.023.

J Emerg Med. 2014;47(2):232-236. © 2014 Elsevier Science, Inc.