Patricia A. Bomba, MD, MACP, FRCP
NY MOLST and eMOLST Program Director, 2001-present

I am compelled to react to Paula Span’s article Filing Suit for ‘Wrongful Life’ published in the new Old Age section of the New York Times on 1/22/2021 from several lens. Without conducting a thorough review of the medical records, I cannot comment on the specific merits of the case. However, I can clarify the differences between advance directives and MOLST and offer NYSeMOLSTregistry.com as a risk management tool to prevent similar future litigation in NY.

As a board-certified geriatrician, trained, licensed and practicing in New York for more than forty years, the emergence of litigation for providing unwanted life-sustaining treatment is no surprise. For decades, all life-sustaining treatment was provided, as death viewed as failure could potentially result in a lawsuit. I anticipate more litigation as baby boomers are avid consumers of health information, recognize faults in our health care delivery system, are proactive setting expectations with their physician, NP or PA, and serve as their own self advocates.

Every American has a right to accept and/or refuse treatment, including life-sustaining treatment. The right does not end when a patient loses the capacity to make medical decisions. These rights are a result of the Patient Self Determination Act (PSDA), a federal law, passed in 1990 and instituted on December 1, 1991. Compliance with PSDA is mandatory.

Advance directives are legal documents that identify future care preferences. Each state has different laws, regulations and state-specific advance directive documents to ensure this right. The New York Health Care Proxy (HCP) ensures a health care agents (HCA) may make decisions for the patient determined to lack capacity. In the absence of a HCP, the decision falls to a surrogate identified in Family Health Care Decisions Act (FHCDA). Both HCAs and surrogates are required to make decisions according to the patient’s known wishes or best interests. While living wills provide “clear and convincing evidence” and are recognized under case law, they cannot be followed in an emergency and are difficult to interpret in the acute care setting due to the coexistence of a terminal illness and potentially reversible acute illness.

MOLST is a set of medical orders that defines life-sustaining treatment the patient wants to receive or avoid now. It is created after a thoughtful discussion between the patient (or HCA or surrogate) with a physician, NP or PA. Medical orders must be followed by all health care professionals in all settings. NY created the MOLST program twenty years ago and is a founding member of National POLST. Each state has different laws that govern the legal requirements for making end-of-life decisions, different portable forms and years of experience. NY’s public health laws (PHL) integrate the ethical framework for making such decisions and provide broad patient and provider protections under HCP law and FHCDA, as well as the process outlined §SCPA 1750-b for individuals with intellectual and developmental disabilities who lack capacity. The NY DOH MOLST Checklists and OPWDD Checklist outline the law. Physicians, NPs, PAs and health systems must be compliant.

As a knowledgeable baby boomer physician, I know my rights. I will speak with my physician when I am appropriate for a thoughtful MOLST discussion and include my health care agent and family virtually. I will insist my physician 1) complete my MOLST in NYSeMOLSTregistry.com explaining eMOLST is a risk management tool, and 2) include my personal statement in the ‘Other Instructions’ section of the MOLST form, “If my MOLST orders are not followed, my attorney will sue for battery, pain and suffering, and make sure the insurance company does not pay for unwanted treatment.”

Patricia A. Bomba, MD, MACP, FRCP

The NYSeMOLSTregistry.com serves as a risk management tool to provide access to properly completed eMOLST forms across care transitions statewide and ensure patients’ preferences for care and treatment are honored in all care settings. The NYSeMOLSTregistry.com is the first and only operationalized web application for both MOLST completion and electronic retrieval in a registry in the country. eMOLST is recognized as best practice nationally. The value of NY’s eMOLST system was recognized during the COVID-19 pandemic and the digital transformation escalated, particularly in NYC and surrounding area devastated by COVID-19.

Dr. Christine Wilkins, Advance Care Planning Program Manager at NYU Langone system implementation of eMOLST for more than five years. “eMOLST ensures a standardized process across NY, documenting quality conversation(s) between the patient, their health care agents, physician and care team. eMOLST ensures the actionable medical orders are 100% accurate. It is the gold standard for persons with serious illness or advanced frailty because it provides access and is honored in all care settings ensuring coordinated care. eMOLST promotes richer advance care planning conversations that go beyond what the person would want if their heart or breathing suddenly stops. eMOLST implementation requires more than IT integration.”

A multidimensional approach to eMOLST implementation starts with culture change and a team led by dedicated physician and system champions like Dr. Wilkins who make improving end-of-life care a priority and ensure key dimensions are sustainably embedded in the culture of the health care system. Administrative support, including tools and detailed workplans, are provided to participants to support culture change, improved workflow and the other key elements. Sustained professional training and consumer education utilizes standardized educational resources on shared decision-making, the communication process outlined in eMOLST and the palliative care plan to support eMOLST orders. Methodical system implementation includes establishing or revising policies & procedures, incorporating quality improvement activities, addressing IT integration needs and leveraging CPT codes 99497 & 99498 to encourage upstream conversations and shared, informed decision making using eMOLST when appropriate.

Nadya Dimitrov, DPM, PAC
Member, MOLST Team Executive Committee
Co-chair, MOLST Education and Training Committee

Due to the combined efforts of the State Society legislative team, Physician Assistants (PAs) in NYS, have achieved a major milestone. PAs now have the authority and accountability for ensuring MOLST is completed correctly. Proper completion of MOLST represents both a vital skill set in their practice and a responsibility to be accountable to both our patients, their families and caregivers.

The ability to provide comprehensive care for the patient in the cultural context of their lives is exemplified by the process of advance care planning for all patients, but it is especially important for patients with advanced illness, including frailty, and those of advanced age. After identifying patients appropriate for MOLST, the patient, family and appropriate medical decision-maker must be educated, engaged and empowered in understanding MOLST and preparing for shared medical decision-making to be sure the voice of the patient is heard.

PAs must follow the important communication process as outlined in the 8-Step MOLST Protocol by preparing for the discussion, ensuring the patient understands their current health status, prognosis before reviewing values, beliefs and the patient’s goals for their care. Once MOLST is completed, the PA must determine with the patient, family and caregivers all details of supportive palliative needs along the course of serious illness and additional support as the patient approaches the end of life.

The core of PA education encompasses culturally sensitive communication skills. It is vital that PAs are actively involved in the enhanced responsibility of this process so as to educate and encourage all medical practices in and outside of hospital settings, post-acute/LTC facilities to update their policies and procedures to ensure compliance with the revisions to New York State Public Health Law (NYSPHL) as of June 17, 2020.

The adoption of eMOLST is considered a best practice in all settings and facilities. The PA profession has the ability to provide continuity in care transitions, enhanced by their core practice of interdisciplinary teamwork, and can enhance their own value on the healthcare team with knowledge and practice of the MOLST and eMOLST process. This is true no matter the specialty, facility or age of the population.

As co-chair of the Education and Training Committee, I am passionate about achieving our goal to educate all PAs and others – including educators, clinicians, and students – on MOLST and eMOLST. The process involves an important training, and there are the following initiatives to help actualize PAs’ increased authority and accountability, namely ECHO MOLST + eMOLST clinic series that features case-based learning and facilitated discussion, and PA program student and faculty workshops.