When is Medical Care 'Futile'? The Institutional Competence of the Medical Profession Regarding the Provision of Life-Sustaining Medical Care

69 Pages Posted: 2 Sep 2008 Last revised: 24 Sep 2011

See all articles by Meir Katz

Meir Katz

Georgetown University Law Center

Date Written: September 20, 2011

Abstract

“Medical futility,” the doctrine by which hospital ethics boards have assumed the right to authorize medical providers to unilaterally withdraw or decline to provide aggressive life sustaining medical care, has swelled in popularity in recent years and has affected the lives of countless terminal patients. The case law governing medical futility is inconsistent and appears to provide medical providers and patients alike little guidance in this extremely sensitive area of health law. Lost in the confusion created by the case and statutory law is due consideration of the normative case behind “medical futility.”

“Futility,” by definition, is preceded by an important moral judgment. Assessing futility requires an opinion not just on the economic costs of treatment vis-à-vis the likelihood of physiological success, it also demands an assessment of the value of the life that hangs in the balance. Accordingly, through medical futility, medical providers have entered an area of discourse that is beyond their expertise. Science and medicine can say nothing about the value of human life generally or the lives of terminal patients specifically and the attempts by medical providers to do so are saturated in bias and moral judgment. Certainly, medical providers can and should discuss with their patients the likelihood of success and the potential pitfalls of any medical treatment. But once that discussion becomes an assertion that medical treatment is inappropriate, it transforms into a normative argument that a medical provider has no expertise to make.

Keywords: medical futility, end-of-life, death and dying, bioethics, advance directive, institutional competence

JEL Classification: I11, I18, K13, K39

Suggested Citation

Katz, Meir, When is Medical Care 'Futile'? The Institutional Competence of the Medical Profession Regarding the Provision of Life-Sustaining Medical Care (September 20, 2011). Nebraska Law Review, Vol. 90, p. 1, 2011. Available at SSRN: https://ssrn.com/abstract=1261584

Meir Katz (Contact Author)

Georgetown University Law Center ( email )

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