Legal and Institutional Policy Responses to Medical Futility

Abstract

The medical futility debate centers on the conflict between a patient who demands treatment and a doctor who refuses it. This article seeks a social and professional consensus regarding this debate by considering two decisionmaking sources: case law produced by litigation over medical futility disputes and a sample of hospital policies relating to futile care.

First considering relevant case law, the article describes two strains of litigation. Where the hospital seeks permission to end treatment and the patient or surrogate seeks continued treatment, the court almost always defers to the patient and orders continued treatment. Yet in malpractice suits brought by families for a physician’s failure to treat, courts consistently defer to the physician’s judgment of the situation as futile. In addition, there is no consistent rationale underlying the decisions to continue treatment or the decisions to uphold physician judgment. The article proposes that a lack of social and professional ambiguity may underlie this legal ambiguity.

Next assessing medical futility in hospital policies, the article describes the results of the Life Sustaining Treatment Survey, a nationwide survey of health care professionals at hospitals. Data collected reveals that most policies deferred to physician judgment rather than explicitly defining futility. In addition, where policies did define futility, the definitions varied significantly from one institution to another.

This article finds the lack of consensus in medical futility to be troubling and advocates for an unambiguous conflict resolution process for futility decisionmaking. Hospitals should provide substantial opportunities for negotiation, mediation, and consultation—approaches well suited to the complex decisions involved in health care relationships. However, to avoid ambiguities and confusion in such relationships, hospital policies should also specify a resolution mechanism for cases of persistent conflict.