Darryl S. Weiman, M.D., J.D.
Standards and Ethics Committee Newsletter for the ECTSS
What should the health care provider do when the patient or the patient’s family requests that life-prolonging care be started or continued when there is no reasonable expectation that the care would be helpful? These types of demands are not unusual and are based on the ethical principles of autonomy and self-determination. It is legally accepted that patients can refuse treatment; does the law recognize their right to demand care based on the same principles?
“Futile care” is medical care or treatment for a patient when there is no reasonable hope of a cure or benefit. Physicians are sometimes faced with a situation when the patient (or the patient’s family) requests care that the physician believes is futile and may even be harmful. No State requires a physician to provide care that he believes to be futile, but the physician’s judgment may be subject to second guessing, and he may be served with a medical malpractice or wrongful death suit.
There are mainly two reasons that patients and families push for care that is against their physician’s advice. The first rests on religious or cultural reasons where the family believes that everything should be done to preserve life, even if prolonged suffering is the result. In some cases, such as “brain death”, the religion may not recognize the medical definitions. In some religions, death only occurs when the heart and lungs have stopped working. This is why New York and New Jersey have religious exceptions for their “brain death” statutes.
The second reason is related to a lack of understanding as to the limits of medical care. This leads to false beliefs that care given can reverse what the medical professionals know to be an irreversible situation. This scenario is usually managed with regular meetings with the family with discussions as to what reasonable outcomes can be expected. However, even with improved communications, the family may continue to request “futile” care.
Fear of legal ramification usually leads to honoring the family’s request. As a result, cost of care goes up and limits are placed on scarce medical resources.
To help physicians deal with these difficult clinical situations, some states have enacted laws to protect providers who may decide to not honor a family’s request for futile care.
Texas has a model for how to approach this difficult clinical scenario, but not all states have this type of “safe harbor” statute relating to futile care. In Texas, when a patient or family demands care that the physician believes is futile, the law requires the care-giver to get a second opinion from another physician. When this is done, the person providing the second opinion should see and examine the patient and review the medical records. The second opinion should
then be documented in the medical records and the family should be informed as to the opinion. In most cases, the opinion will be consistent with the first physician’s opinion but that may not be the case.
If the second opinion is in agreement with the family or patient, that physician should then take over the care of the patient. If the second opinion agrees that the care requested would be “futile” then the family or patient will either need to change their opinion or continue to request the care in question.
If, after hearing the second opinion, the family still wants the “futile” care to be given, the physician should obtain a consult from the hospital’s Ethics Committee. The committee should then review the medical records and examine the patient. Usually the ethics opinion will agree with the physician. If the family still is pushing for the “futile” care, then the physician and the hospital should offer to try to transfer the patient to another facility which would be willing to provide the care in question. This attempt to transfer the patient is unlikely to be successful as most other hospitals will not want to deal with a “futile care” conflict.
If all of the steps outlined in the Texas statute are done, then the physician will have a “safe harbor” under the law to not provide the requested care; he would even be allowed to withdraw care that he deems to be futile. The family will still be allowed to bring a medical malpractice or wrongful death suit, but they will be unlikely to win.
The underlying intent of the process outlined in the Texas law is to allow the family to come to grips with the gravity of their loved one’s situation. Once they realize that the medical staff is in agreement, they are likely to back off from their demands for further, unwarranted, care.
There are situations, usually in the trauma scenario, where there is not enough time to meet the requirements of the futile care statute. For example, patients who have sustained blunt chest trauma and present with no cardiac rhythm often get a resuscitative thoracotomy in the emergency department even though the mortality is significant and those who survive have horrible neurologic outcomes (Powell DW, Moore EE, et. al., Journal of the American College of Surgeons, August 2004). The recommendations of the Powell article are to stop doing these thoracotomies for any patient with blunt chest trauma who was getting prehospital cardiopulmonary resuscitation for longer than five minutes even though not doing the thoracotomy may lead to medical malpractice actions related to the “loss of chance” for survival.
Although the “Futile Care” statute will afford some protections to the physician and hospital, they may still have to experience the financial and other expenses of defending their actions. No one wants to be the first case to test the law since it is uncertain if the courts will deem the law to be constitutional or not. It is possible to argue that the law is unconstitutional as it may deprive a person of “life, liberty, or property” without “due process of law.” A further constitutional argument against the law can be based on the “equal protection” clause of the Fourteenth Amendment; if one person is treated, then all can claim the “right” for the same treatment.
New therapies for acute life-threatening illnesses such as ventricular assist devices, organ transplants, coronary and valvular interventions, have led to increases in the need for intensive care (ICU) beds. As a result, there are times where there is not enough ICU beds to meet the demands of the patient population that could benefit from that environment.
To optimize the use of scarce medical resources, there should be a push to educate the public and health care providers about futile care alternatives such as palliative care (keeping the patient comfortable). Education should also focus on reasonable discussions on end of life issues such as “advanced directives” and “power of attorney for health care issues.” It might also be useful to educate health care providers on the ethical, and legal, issues relating to providing, or not providing care which is costly and unlikely to provide a reasonable hope of meaningful recovery.
One of the first things that needs to be done is provide a clear definition of what constitutes “futile care” and what strategies can be done to more effectively use the ICUs or emergency rooms scarce resources.
There are few cases that have gone to court to decide on the “futility” issue. This is probably because few physicians and hospitals are willing to face the costs and possible reputational damage for removing life-sustaining treatment over the protests of the patient or family. Although most judicial rulings have upheld the physicians’ judgment, some have not.
In medicine, it is often said that “when God puts his hands on, take yours off.” This saying is applicable to the situation where the requested care is deemed to be futile. However, withdrawing care is problematic as no one wants the aggravation of defending his actions in courts of law or courts of public opinion.