Abstract
This chapter studies and advocates the principle of inedical futility as a template for assessing whether a medical condition is curative, rehabilitative, or palliative. Physicians should have clear markers for non-treatment. Yet, not all hospital management policies regarding futility are, however, uniform. And, there is wide disagreement regarding the propriety of use this principle to afford or “license.” In dealing with cases of futility, the primary goal is to achieve—for the patient—a level of “total good.” This response is realized when a balance is struck between effectiveness of the response and the benefit and burden of it, as assessed co-operatively, within an alliance between the treating physician, the patient, or, by his or her surrogate decision-maker.
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Notes
Adrienne M. Martin, Hope and Exploitation, 38 HASTINGS CENTER RPT. 49 (2008).
Edmund D. Pellegrino, Decision at The End of Life: The Use and Abuse of The Concept of Futility in The Dignity of the Dying Person at 231 (Juan De Dios Vial Correa and Elio Segreccia eds. 2000), Proceedings of the Fifth Assembly of The Pontifical Academy of Life, Feb., 1999.
Id. (observing disproportionate is synonymous with futility). See Timothy E. Quill, Physicians Should ‘Assist Suicide’ When It is Appropriate, 40 J. LAW MED ETHICS 57 (2012).
Richard A. McCormick, To Save or Let Die: The Dilemma of Modern Medicine 229 JAMA 172 (1974).
Id. Dr. Joseph Fletcher suggested a number of factors could be used to test whether one’s medical state is consistent with common indicators of personhood. The pivotal factor is whether the at-risk patient has a functioning cortex. Joseph Fletcher, A Tentative Profile of Man, 2 HASTINGS CENTER RPT. 1 (Nov. 1972).
Lawrence J. Schneiderman and Nancy Jecker, Futility in Practice, 153 ARCH. INTERN. MED. 437, 440 (1993).
Lance K. Stell, Stopping Treatment on the Grounds of Futility: A Role for Institutional Policy, 11 ST. LOUIS U. PUB. L. REV. 481, 495 (1992).
Any request that medical therapy be offered to patients who would have less than a 1% chance of success should be deemed unreasonable and, thus futile. Lawrence F. Schneiderman, Nancy S. Jecker and Albert R. Jonsen, Medical Futility: Its Meaning and Ethical Implications in Bioethics: an Introduction to the History, Methods and Practice at 408, 412 (Nancy S. Jecker, et al., eds. 2d 2007).
John L. Paris, et al., Physician’s Refusal of Requested Treatment: The Case of Baby L, 322 NEW ENG. J. MED. 112, 1014 (1990).
Pellegrino, supra note 4 at 227. See Mark A. Hall, Law, Medicine, and Trust, 55 STAN. L. REV. 463 (2002).
Margaret A. Somerville, The Song of Death: The Lyrics of Euthanasia, 9 J. CONTEMP. HEALTH LAW & POLICY, 62 (1993).
Judith M. Saunders and Sharon M. Valente, Code/No Code? The Question That Won’t Go Away, 16 NURSING 60, 62 (Mar. 1986).
Id. See generally Dean M. Hashimoto, A Structural Analysis of The Physician-Patient Relationship in No-Code Decisionmaking, 93 YALE L. J. 362 (1983).
Bernard Lo, Unanswered Questions About DNR Orders, 265 JAMA 1874 (April 10, 1991).
See Judith W. Ross and Deborah Pugh, Limited Cardiopulmonary Resuscitation: The Ethics of Partial Codes, QUALITY REV. BULL. 4 (Jan. 1988).
Felice Quigley, Legalities of The No Code/Slow Code, PENNSYLUANIA NURSE 15 (Oct. 1988).
Jessica H. Muller, Shades of Blue: The Negotiations of Limited Codes by Medical Residents, 34 SOC. SCI. MED. 885, 890, 896 (1992).
Id. DNR orders “are commonly made without consultation with the patient,” Emily Jackson, Death, Euthanasia and the Medical Profession in Death Rites and Rights, Ch. 3 at 49 (Belinda Brooks-Gordon et al., eds. 2007).
See GEORGE P. SMITH, II, LEGAL AND HEALTHCARE ETHICS FOR THE ELDERLY Ch. 7 (1996); Laurence P. Ulrich, The Patient Self-Determination Act: Meeting the Challenges of Patient Care, 283 JAMA 2454 (2000).
See Patient Self-Determination Act, supra note 39. See generally Joseph T. Monohan and Elizabeth A. Laeoharn, Life-Sustaining Treatment and the Law: The Evolution of Informed Consent, Advance Directives and Surrogate Decision Making, 19 ANNALS HEALTH L. 107 (2010).
Lainie Rutkow, Dying to Live: The Effort of The Patient Self Determination Act on Hospice Care, 7 N.Y.U. J. LEGIS. & PUB. POI;Y 393, 396 (2003–04).
Id. at 4296z. It has been argued that physicians should be liable in battery for administering life-saving treatment—not withstanding doubts about the validity of a patient’s treatment refusal—unless reasonable mistake can be established. Sabine Michalowski, Trial and Error in The End of Life—No Harm Done?, 27 OXFORD J. LEGAL STUDIES 257 (2007).
Carol A. Mooney, Deciding Not to Resuscitate Hospital Patients: Medicaid and Legislative Perspectives, 1986 U. ILL. L. REV. 1025, 1044 (1986).
Russell S. Kamer and John A. Clung, New York’s Do-Not-Resuscitate Law: Burden or Benefit? in Legislating Medical Ethics: A Study of the New York Do-not-Resuscitate Law at 230, 234 passim (Robert, Baker and Martin A. Strosberg eds. 1995) (using Matter of Storar, 52 N.Y. 2d 517 (1981) as an example)).
One study discovered that conflicts arose in 78% of cases where issues of limiting life-sustaining medical treatment were in play and normally involved a demand of health care providers to provide care when a decision was made that such action was either inappropriate or futile. Thaddeus M. Pope and Ellen A. Wallmas, Meditation at The End of Life: Getting Beyond The Limits of The Talking Cure, 22 OHIO STATE J. DISPUTE RESOLUTION, 1, 4 at n. 13 (2007).
Sandra H. Johnson, et al., Legal and Institutional Policy Responses to Medical Futility, 30 J. HEALTH & HOSP. L. 21, 31 (1997).
Eric L. Krakauer, Richard T. Penson, Robert D. Truog et al., Sedation for Intractable Distress of a Dying Patient: Acute Palliative Care and The Principle of Double Effect, 5 THE ONCOLOGIST 53 (2000).
See George P. Smith, II, Terminal Sedation as Palliative Care: Revalidating a Right to a Good Death, 7 CAMBRIDGE Q. HEALTHCARE ETHICS 382, 383 (1998).
Id. at 223. When a patient is in end-stage illness, yet not in peril of immediate death, efforts to sedate “toward death” are seen by some as unethical. See, e.g., Daniel P. Sulmasy, The Use and Abuse of The Principle of Double Effect, 3 CLIN. PULMONARY MED. 86 (1996).
Timothy E. Quill and Ira R. Byock, Responding to Intractable Terminal Suffering: The Role of Terminal Sedation and Voluntary Refusal of Food and Fluids, 132 ANNALS OF INTERNAL MEDICINE 408, 409 (2000); Pope and Anderson, infra note 91.
Paul Rousseau, Existential Suffering and Palliative Sedation: A Brief Commentary with a Proposal for Clinical Guidelines, 18 AM. J. HOSPICE & PALLIATIVE CARE 151, 152 (2001).
Bernard Lo and Gordon Rubenfeld, Palliative Sedation in Dying Patients: ‘We Turn to it When Everything Else Hasn’t Worked’, 294 JAMA 1810, 1812 (Oct. 12, 2005).
Morita et al., Definition of Sedation for Symptom Relief: A Systematic Literature Review and a Proposal for Operational Criteria, 24 J. PAIN SYMPTOM MGT. 447, 452 (2008).
Rousseau, supra note 80 at 153. An alternative five-step protocol for the administration of terminal sedation as palliative care requires five conditions be met before its administration: severe suffering (even though standard palliative care has been provided); no therapeutic options are seen as effective within disease prognosis; survival is severely limited; an explicit desire for sedation has been made by the at-risk patient, and—finally—respite is effected by intermittent or mild sedation and not continuous. Morita et al., Terminal Sedation for Existential Distress, 17 AM. J. HOSPICE & PALLIATIVE CARE 189, n’s 4, 6–8 (2000). See Quill and Byock, supra note 73 at 411, Table i, Guidelines for Terminal Sedation and Voluntary Cessation of Eating and Drinking. See also Thaddeus M. Pope and Lindsey E. Anderson, Voluntarily Stopping Eating and Drinking: A Legal Treatment Option at The End of Life, 17 WIDENER L. REV. 363 (2011);
A. Alpers and Bernard Lo, The Supreme Court Addresses Physician-Assisted Suicide: Can Its Rulings Improve Palliative Care?, 8 ARCH. FAM. MED. 200 (1999).
Krakauer et al., supra note 66. In the U.S., prosecutions are rare for “legitimate” physician assistance of terminally ill patients. See Alan Meisel et al., Prosecutor and End-of-Life Decisionmaking, 159 ARCH. INTERN. MED. 1089 (1999); LOANE SKENE, LAW AND MEDICAL PRACTICE 340 passim (3rd ed. 2008).
MARK A. LEVINE, AMERICAN MEDICAL ASS’N REPORT OF THE COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS (CEJA), SEDATION TO UNCONSCIOUSNESS IN END-OF-LIFE CARE, CEJA REPORT 5-A-08, at 6 (2008) [hereinafter CEJA REPORT]. A comparable study was completed by the European Association for Palliative Care and released in 2009 as a ten-point framework for the use of sedation in palliative care. See 23 PALLIATIVE MED. 581 at 584 passim (2009). As with the American Medical Association Report, these procedural guidelines have been criticized for lacking a clear statement of the symptoms necessary to use palliative sedation and the primary party empowered to determine the propriety of its use—the patient or health care provider. See Niklas Juth et al., European Association of Palliative Care (EAPC) Framework for Palliative Ethical Discussion, 9 BMC Palliative Care 20 (2010) at http://www.biomedcentral.com/1472–684x/9/20.
Margaret P. Battin, Terminal Sedation: Pulling the Sheet Over Our Eyes, 38 HASTINGS CENTER REP. 27, 29 (2008).
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Smith, G.P. (2013). Medical Futility: The Template for Decisionmaking. In: Palliative Care and End-of-Life Decisions. Palgrave Pivot, New York. https://doi.org/10.1057/9781137377395_3
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DOI: https://doi.org/10.1057/9781137377395_3
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