Implied Consent?

A 35 year-old woman with a 5-day history of history of gradually worsening shortness of breath and productive cough has a fairly sudden decompensation at work. She is transported by ambulance to the Emergency Department where she is quickly intubated for oxygen saturation levels in the 70% range associated with agitation and disorientation. Her CXR shows bilateral patchy infiltrates and her sputum is positive for H1N1 influenza A. She is transferred to the ICU. After some initial improvement following intubation and mechanical ventilation, she continues to deteriorate over the subsequent 4 days with oxygen saturations as low as 60% on 100% FiO2, despite sedation, paralysis and escalating ventilator support. An attempt at prone positioning on day 2 led to a brief arrest and just over 1 minutes of CPR. She is now having some hypotension, and her lactate has risen to 5.4, having been normal in the Emergency Department. Her friends at work say that she is married, but her husband is in Japan on business, and they have been unable to reach him. After a discussion with the team, it is determined that since she is young and otherwise healthy, with a likely reversible condition, and at significant risk of dying, her best chance of survival is with VV ECMO. Understanding the lack of consent, and lack of available family, the team decides after considering the risks and benefits, that she would most probably desire treatment and full support, including ECMO. This is accomplished without complications, the ventilator pressures are decreased, and she quickly stabilizes. Her blood pressure improves, her saturations level off in the low 80% range, and her lactate normalized. In the interim, a friend from works states that they reached her husband, and he is urgently making arrangements for immediate return to the US. Over the next 24 hours she continues to improve, and although her CXR now shows severe ARDS, all her other organ systems are working normally. The paralytics were discontinued and the sedation has been weaned, but she has not yet woken up.

The following morning on rounds the team is very pleased with her progress. She is starting to move normally, but is not yet following commands. You are told her husband has just arrived and visited and is quite upset. When you meet with him, he expresses his shock and concern for the level of extraordinary care. She was raised in a very religious household who did not believe in many medical treatments including vaccines, transfusions, and significant surgical procedures, and he does not believe that she would have ever agreed to such extensive procedures and care. He has the paperwork documented his health care power of attorney for his wife, and requests that the ECMO and ventilator be stopped immediately. You explain that she will most certainly die if the ECMO is discontinued now, but that she has demonstrated significant improvement over the last two days, and as an otherwise young and healthy adult, has a very high chance of survival with just a few more days of support. He listens carefully and is not hostile or confrontational. However, despite the positive prognosis you described, he remains convinced that she would never have consented to this very high level of care, and he demands that you stop it all immediately. You explain to him that you are not sure you can do that on your own, and that you need to have some discussions with the team. You immediately contact your chairperson, patient relations, risk management, and other members of her care team for urgent consultation.