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Involuntary Passive Euthanasia in U.S. Courts: Reassessing the Judicial Treatment of Medical Futility Cases

Marquette Elder's Advisor, Vol. 9, No. 2, 2008

Widener Law School Legal Studies Research Paper No. 08-63

42 Pages Posted: 28 Dec 2007 Last revised: 6 Nov 2013

Thaddeus Mason Pope

Mitchell Hamline School of Law; Queensland University of Technology - Australian Health Law Research Center; Saint Georges University; Alden March Bioethics Institute

Date Written: June 24, 2008

Abstract

Over the past twenty-five years, a significant number of surrogate decision makers have demanded that a health care provider use medical technology to prolong a patient's life beyond the point thought medically appropriate. These surrogates want to continue life-sustaining medical treatment (LSMT) that providers want to stop. While most of these futility disputes are resolved informally inside the hospital, dozens have now been litigated in U.S. courts. Because the judicial treatment of these disputes casts a long, dark shadow on the informal resolution of all the others, it is important to ascertain exactly what guidance these court cases provide.

In assessing the judicial treatment of futility cases, most of the medical, legal, and bioethical literature concludes that courts have generally disfavored providers. But these assessments are based on limited and outdated sets of cases. In this article I offer a comprehensive review of futility cases from 1983 to 2007. Based on this review, I argue that courts have generally neither prohibited nor punished the unilateral refusal of LSMT. Providers have regularly obtained both ex ante permission and ex post forgiveness for stopping LSMT without consent.

Keywords: medical futility, end-of-life, elder law, death, litigation

JEL Classification: I00, I18, K13, K41, K32

Suggested Citation

Pope, Thaddeus Mason, Involuntary Passive Euthanasia in U.S. Courts: Reassessing the Judicial Treatment of Medical Futility Cases (June 24, 2008). Marquette Elder's Advisor, Vol. 9, No. 2, 2008; Widener Law School Legal Studies Research Paper No. 08-63. Available at SSRN: https://ssrn.com/abstract=1078983

Thaddeus Mason Pope (Contact Author)

Mitchell Hamline School of Law ( email )

875 Summit Avenue
Room 320
Saint Paul, MN 55105
United States
651-695-7661 (Phone)

HOME PAGE: http://www.thaddeuspope.com

Queensland University of Technology - Australian Health Law Research Center ( email )

2 George Street
Brisbane, Queensland 4000
Australia

Saint Georges University ( email )

West Indies
Grenada

HOME PAGE: http://www.thaddeuspope.com

Alden March Bioethics Institute ( email )

47 New Scotland Ave
MC 153
Albany, NY 12208
United States

HOME PAGE: http://www.thaddeuspope.com

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