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Do Not Resuscitate Orders for Children – A Short Commentary on H3487

On March 28, 2017, the South Carolina House passed H3487 with little debate and only one dissenting vote. H3487 defines and expands how emergency medical personnel should interact with do-not-resuscitate (DNR) orders for minors. It also fundamentally changes both the spirit and letter of past advanced care directive legislation that until now excluded children from DNR orders. The bill specifically defines a child as anyone under age 18 and gives parents or guardians the right to issue DNR orders for that child if he is terminally ill.

Advanced directives regarding patients end of life healthcare have been controversial since the late 1960’s when were first proposed by the Euthanasia Society of America. Luis Kutner, the attorney for ESA who developed the first advance directive or “living will” proposed that since “a patient cannot be subjected to treatment without his consent,” he should have the right to formalize his wishes for health treatment or lack thereof should he become incapacitated.

Kutner’s “living will” legislation was debated state by state for the next twenty years. By 1986, forty-one states had adopted some type of advanced directive including South Carolina. Named the Death With Dignity Act, our law defines how advanced directives should be structured and when life-sustaining measures should be withheld. The General Assembly went on to pass the Adult Health Care Consent Act in 1990 and the Emergency Services Non-Resuscitation Order act in 1994. None of the bills applied to children and with good reason.

Terminally ill children are ethically unique as noted by Daniel S. Goldberg in his 2007 study The Ethics of DNR Orders As To Neonatal & Pediatric Patients: The Ethical Dimension of Communication. Several points in his study caught my eye in relation to H3487 allowing parents to issue DNR orders.

Goldberg notes that the last days, hours and minutes of a child’s life will stay in the parent’s memories forever. These memories will have a major impact on the future emotional health of those parents. His study shows a significant discrepancy between the physician’s prognosis and the parents understanding of what that prognosis truly means.

Parents are not doctors or emergency medical personnel. Parents are emotionally bound to the child and are not going to be rational during an emergency when DNR order questions will be raised.

After discussing the bill with it sponsors, I understand that the bill was offered with good intentions. However, given the complexity of medical procedures these days and the significance of any error made regarding a child’s DNR order, I encourage the Senate to dig for the unintended consequences that this H3487 will inflict.

Appendix – SC Code Cites

 SECTION 44-77-10. Short Title – Death With Dignity Act – 1986

SECTION 44-77-30. When life-sustaining procedures may be withheld.

If a person eighteen years of age or older adopts a declaration that is substantially in the form provided in Section 44-77-50, whether executed before or after an amendment is made to the form, and that on its face is duly executed, witnessed, and authenticated as provided in Section 44-77-40 or on its face is in compliance with the law of the state of the declarant’s domicile at the time that the declaration is adopted, if the declaration provided for by the law expresses an intent that is substantially the same as the intent of the declaration provided in Section 44-77-40, and the person’s present condition is certified to be terminal or to be in a state of permanent unconsciousness by two physicians who personally have examined the declarant, one of whom is the declarant’s attending physician, and the other of whom is a physician other than the attending physician, then life-sustaining procedures may be withheld or withdrawn upon the direction and under the supervision of the attending physician.

SECTION 44-66-10. Short Title – Adult Health Care Consent Act – 1990

Purpose – Confers authority on a health care surrogate to consent on the patient’s behalf to the provision or withholding of medical care and to make financial decisions obligating the patient to pay for the medical care provided.

SECTION 4466-20. Definitions.

Defines “Patient” as an individual sixteen years of age or older who presents or is presented to a health care provider for treatment.

Defines “Unable to Consent” as unable to appreciate the nature and implications of the patient’s condition and proposed health care, to make a reasoned decision concerning the proposed health care, or to communicate that decision in an unambiguous manner. This term does not apply to minors, and this chapter does not affect the delivery of health care to minors unless they are married or have been determined judicially to be emancipated.

SECTION 44-78-10. Short Title – Emergency Services Non-Resuscitation Order – 1994

 SECTION 44-78-25. Duties of EMS personnel when presented with “do not resuscitate order”.

 When called to render emergency medical services, EMS personnel must not use any resuscitative treatment if the patient has a “do not resuscitate order for emergency services” and the document is presented to the EMS personnel upon their arrival or if the patient is wearing a do not resuscitate bracelet. EMS personnel must provide that degree of palliative care called for under the circumstances which exist at the time treatment is rendered.

SECTION 44-78-50. Chapter not condonation of mercy killing; minors ineligible for “do not resuscitate orders”; compliance with article not suicide.

(A) Nothing in this chapter may be construed to condone, authorize, or approve mercy killing or euthanasia or to permit any affirmative action or deliberate act to end life other than to allow the natural process of dying.

(B) No person under the age of eighteen years may request or receive a “do not resuscitate order for emergency medical services” as provided for in this article.

(C) The withholding of resuscitative measures pursuant to this article does not constitute suicide for any purpose.

Miscellany

The Ultimate DNR order revocation – Genesis 22:9-12 –

And they came to the place which God had told him of; and Abraham built an altar there, and laid the wood in order, and bound Isaac his son, and laid him on the altar upon the wood. And Abraham stretched forth his hand, and took the knife to slay his son. And the angel of the LORD called unto him out of heaven, and said, Abraham, Abraham: and he said, Here am I. And he said, Lay not thine hand upon the lad, neither do thou any thing unto him: for now I know that thou fearest God, seeing thou hast not withheld thy son, thine only son from me.

For Abraham, the stay of being executioner to his own son came with the call of an angel. Upon hearing his name Abraham lowered his knife and ended the prospective nightmare of having Isaac cry out the same words that God himself would later hear from His only son, “My God, my God, why hast thou forsaken me?”

William Shakespeare’s son died in 1596. He was eleven. Shakespeare left so little evidence of his personal life that no direct reaction to his son’s death has been found. Yet in his play The Life And Death of King John, written just after the boy’s death, Shakespeare writes these words for Constance, the grieving mother of Arthur, the young Duke of Brittany, murdered because he was rightful heir to the throne.

The Life and Death of King John, Act III, Scene 4

 Constance:

 Grief fills the room up of my absent child,

Lies in his bed, walks up and down with me,

Puts on his pretty looks, repeats his words,

Remembers me of all his gracious parts,

Stuffs out his vacant garments with his form;

Then, have I reason to be fond of grief?

Fare you well: had you such a loss as I,

I could give better comfort than you do.

I will not keep this form upon my head,

When there is such disorder in my wit.

O Lord! my boy, my Arthur, my fair son!

My life, my joy, my food, my all the world!

My widow-comfort, and my sorrows’ cure!

 Shakespeare may not have expressed his own personal feelings of grief through sonnet or diary, but he infused Constance with grief’s total blackness that follows hard upon your child’s death.

Constance’s last three lines echo in W. H. Auden’s oft quoted poem about grief:

Stop All The Clocks

He was my North, my South, my East and West,

My working week and my Sunday rest,

My noon, my midnight, my talk, my song;

I thought that love would last for ever: I was wrong.

Auden was not writing about his son but grief cares not for blood relation, knows no societal boundaries, observes no funeral customs and expresses itself through the most unlikely sources. Still, the death of your son, your first-born son, the son that carries the dna of all that you were and the hopes of all that you could have been hits hard.

 A Father’s Love

I am convinced, that when a man tells a woman he loves her, he only means that he desires her; and that the only total love in this world is that of a father for his son. – Enzo Ferrari

Enzo Ferrari’s son, Dino, died in 1956 from Duchenne Multiple Dystrophy. He was 24.

The Craftsman Full Unlimited Warranty and Our State Employees

If any Craftsman Hand Tool ever fails to give complete satisfaction, return it to any Sears store or other Craftsman Outlet in the United States for free repair or replacement.

Imagine if a certain giant software company offered the Craftsman warranty on the latest version of their operating system. Can’t boot that dream up? Neither could their owner and for good reason. If he did offer such a warranty, he would not be worth billions. Software may be a tool but it is not a durable tool and a bad bet to warranty for unlimited satisfaction. In their case, a warning rather than a warranty might be warranted. (For any budding rhetoricians or lyricists, that last sentence contains a polyptoton with a dash of alliteration – a John Lennon favorite.)

Still, most American companies warranty their products to consumers, a practice that began in the late 1800’s. Some early warranties tricked the consumer by defining in the notorious fine print what the warranty did not cover. Other warranties conveyed a sense of value and became an integral part of the purchasing process. A few companies have offered a 100% satisfaction guaranteed since their inception. Craftsman’s unlimited warranty dates back to 1927 when Sears bought the brand.

Over the ensuing 90 years, Craftsman became one of Sears most trusted and valuable brands. Customers were understandably surprised when Sears Holdings CEO Eddie Lampert announced the sale of Craftsman to Stanley Black and Decker at the beginning of 2017. Sears will receive $775 billion in cash plus a percentage of Craftsman sales over the next 15 years. Not a bad return on investment for a brand originally purchased for $500.

Unfortunately, the money will used to erase past debt. Lampert pledged $250 million plus the future revenue stream from the Craftsman sale to shore up Sears pension plan. This latest cash infusion adds to the $2.84 billion that Sears has put into their pension plan over the last decade. Lampert has indicated that the Kenmore and Diehard brands may on the block next.

Sears froze their pension plan and closed it to new employees in 2006 when Lampert left his day job as a hedge fund manager and took over as CEO. Since then, Sears has tried to keep ahead of the accrued benefit for the 204,000 current employees and retirees who had earned a benefit prior to 2006. The replacement defined contribution plan that started in 2006 has $2.5 billion in assets and was ranked in the bottom half of their peer group by Brightscope, a leading provider of retirement plan analytics.

Brightscope cited poor participant participation, high investment fees and less than generous company contributions as reasons for the new plan’s poor ranking. For 2015, the plan received $88 million in employee contributions and had $35 million in investment losses. It seems that the bad management habits of the frozen defined benefit plan have been mirrored in the new defined-contribution plan. For employees, the major difference between the two is that they now receive little to nothing from Sears toward their retirement.

During his tenure as CEO, Lampert merged Sears and K-mart, upgraded technology, started a membership program and a delivered a host of other self-inflicted wounds that have opened a life threatening flow of red ink. Along with selling brands, Lampert has been selling Sears vast real estate holdings just to have a little money in the bank.

Like a morality play with no good choices, poor business decisions over the last decade forced Sears in 2017 to choose between honoring their promise of a retirement benefit to their old employees and offering their future customers quality products such as Craftsman. Actually, it was not much of a choice since the Pension Benefit Guaranty Corporation, the federal agency that bails out private pension plans, pressured Sears to shore up the pension plan or else.

The lesson from this morality tale speaks directly to my colleagues in the General Assembly, especially those who have been critical of the current state pension system reform bill. In the private sector, companies are required to meet the compensation obligations made to their employees. Payroll taxes must be deposited when withheld. Pension obligations must be funded annually. If these obligations are not met, somebody gets served an arrest warrant (again, that word).

The state of South Carolina has made a promise to our state employees regarding their retirement benefits. These benefits are part of each employee’s compensation package and once agreed to become a legal and ethical obligation. The General Assembly and our Governor have a responsibility to ensure that these obligations are met. The General Assembly has passed the first of several major pension system reform bills that will be required over the next 20 years. The current bill now sits on our Governor’s desk unsigned.

Though I am a member of the General Assembly, I will refrain from telling our Governor whether he should sign the bill, veto it or let it sit. The choice is his. However, the bill before him builds a solid foundation to reform the system and reinforces our ability to meet the pension obligations made to our state employees. Besides, the only brands of value that we have are our state college mascots. I just don’t see our citizens supporting that kind of asset sell-off especially coming off of a year when so many of our sports teams gave us 100% satisfaction.

State House Report Week 13 – Crossover Success

The House Republican Caucus set out with a “Business Plan” in January addressing these key areas of importance in our state:

  1. Improving Education in Rural Communities
  2. Instituting Workforce Development through K-12 Computer Science Training
  3. Providing a Long-Term Solution to the Infrastructure Crisis
  4. Securing the Future of the Public Employee Retirement System

Last Thursday, the House adjourned for the Easter furlough period having completed each objective. Please find an update of each below:

Improving Education in Rural Communities

For too long, we did not adequately address the needs of our poor rural school districts. In a 2014 decision, the South Carolina Supreme Court ruled we must do more to address the inadequacies that exist from county to county. This year, the House budget appropriated $100 million for poor school districts to maintain and improve the environments in which children learn. We also increased per-student payments by $38 million, a $50 per student increase, placing the total base student cost at $2,400. These per-student dollars go to each school district to cover the state portion of public education funding.

Instituting Workforce Development through K-12 Computer Science Training

It’s no secret that South Carolina has the best pro-business climate in the Southeast. We’ve worked hard to recruit high-paying employers to our state, employers who expect us to ensure the next generation of workers is adequately prepared to fill these jobs. As part of that preparation, and in preparation for an increasingly competitive international marketplace, my colleagues and I passed legislation instituting computer science training beginning in the K-12 system. The earlier we introduce advanced technology to our students, the less we have to do on the back-end to prepare them for a high-paying job.

Providing a Long-Term Solution to the Infrastructure Crisis

Just under 1,000 people died on our roads last year. Due to the current state of our roads, it costs the average SC motorist an additional $1,300 – $1,800 annually to operate a vehicle. Each day, the average Palmetto State driver wastes an average of 34 minutes stuck in traffic. These facts and figures are unacceptable and saddening. In the House, we passed a pay-as-you-go road funding solution with DOT reforms and increased accountability. This week, the governor suggested a borrow-it-all approach for fixing our infrastructure woes, and the Senate has not passed any plan. I remain committed to addressing our infrastructure needs this year and will keep you updated on the matter.

Securing the Future of the Public Employee Retirement System

It was no surprise the state retirement system suffered during the Great Recession. The market decline coupled with poor management decisions resulted in unprecedented losses to the retirement system which had to be addressed. I am pleased to report that this week the House and Senate passed a conference report, now on the governor’s desk, bringing solvency to the system nearly every public employee depends upon. Our public employees are the backbone of everything we do in South Carolina, and the promises made to them concerning their retirement will be kept.

It is an honor to serve you and your family in the General Assembly. If you ever find yourself in need of assistance navigating state government, or if you have ideas on issues you want me to share with my colleagues in the House, please don’t hesitate to contact me at Tommy@tommystringer.com.