Dispute Resolution Mechanisms for Intractable Medical Futility Disputes

23 Pages Posted: 11 Mar 2013 Last revised: 15 Jan 2014

See all articles by Thaddeus Mason Pope

Thaddeus Mason Pope

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

Date Written: 2013


Medical futility disputes occur frequently in healthcare facilities across the United States. In this Article, I provide an overview of dispute resolution mechanisms through which healthcare providers can resolve these disputes. In Section I, identify three distinctive features of medical futility disputes. First, they usually concern life-sustaining medical treatment for patients in a hospital’s intensive care unit. Second, these patients typically lack decision making capacity. So, a surrogate must make treatment decisions on the patient’s behalf. Third, this surrogate and the patient’s physician disagree over the treatment plan. The surrogate wants to continue life-sustaining treatment. But the physician thinks that this treatment is non-beneficial and that continuing it would be medically and ethically inappropriate. Accordingly, the physician wants to stop such interventions and instead focus on comfort measures only.

While such conflict is frequent, in Section II, I establish that medical futility disputes can usually be prevented or resolved informally. With better communication and documentation of patients’ end-of-life treatment preferences, there will be fewer conflicts. And even to the extent that futility disputes continue to arise, they can almost always be resolved informally within the hospital. The parties are able to eventually reach consensus in around 95% of medical futility disputes. Only around five percent remain intractable.

In Section III, I turn to address the resolution of these intractable futility conflicts. Most of them can be resolved through what I call “surrogate replacement.” The clinician cannot get consent from the current surrogate to stop life-sustaining treatment. But the clinician can often replace that surrogate with a new decision maker who will provide consent. After all, it is likely that the current surrogate is exceeding the scope of her authority. It is likely that the current surrogate is not acting consistent with the patient’s wishes or best interest, when she demands aggressive measures that offer the patient little or no benefit yet impose significant burdens.

But there are limitations to surrogate replacement as a dispute resolution mechanism. Some surrogates cannot be replaced. For example, the surrogate, often for religious reasons, may be making the very same treatment decisions that the patient would have made for herself. Such a surrogate is a faithful and loyal agent. The conflict arises not from a discord between the patient and her surrogate but from discord between the patient (or at least her wishes and values) and her clinician. In such cases, the clinician may want to take unilateral action and stop life-sustaining treatment without either patient or surrogate consent.

In Section IV, I outline the three main legal approaches that states have taken with respect to healthcare providers unilaterally withholding or withdrawing life-sustaining medical treatment. First, some states affirmatively permit clinicians to stop life-sustaining treatment without consent. I refer to these as “green light” states. Second, some states categorically prohibit clinicians from stopping life-sustaining treatment without consent. I refer to these as “red light” states. Third, some states provide vague and uncertain guidance about whether clinicians may stop life-sustaining treatment without consent. I refer to these as “yellow light” states.

I conclude by evaluating these three dispute resolution procedures. Both red light and green light states increase the risk of error. Red light states constrain clinician discretion. They mandate life-sustaining treatment even in circumstances where the administration of such treatment is medically and ethically inappropriate. On the other hand, green light states give too much unaccountable discretion to clinicians. They permit clinicians to stop life-sustaining treatment with minimal oversight, increasing the risk that clinicians will stop even medically and ethically appropriate treatment.

We can mitigate green light state errors by bolstering the required elements of procedural due process. But yellow light states offer an even greater opportunity for improvement. Not only do yellow light states have the legal safe harbor immunity of the red light states but they also have the oversight and accountability that red light states lack. This oversight and accountability is currently too unpredictable and chilling. But the medical profession is developing practice guidelines that should make yellow light safe harbors more certain and appealing.

Keywords: DNAR, DNR, TADA, do-not-attempt-resuscitation, do-not-resuscitate, non-beneficial treatment, medically futile, medical futility dispute, dialysis, surrogate, end-of-life, in tractable, surrogate replacement, life-sustaining, POLST, Discrimination in Denial of Life Preserving Treatment Act

JEL Classification: I1, I12, K32

Suggested Citation

Pope, Thaddeus Mason, Dispute Resolution Mechanisms for Intractable Medical Futility Disputes (2013). New York Law School Law Review, Vol. 58, p. 347-368 (2013), Available at SSRN: https://ssrn.com/abstract=2230900

Thaddeus Mason Pope (Contact Author)

Mitchell Hamline School of Law ( email )

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

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

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Alden March Bioethics Institute ( email )

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United States

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

Saint Georges University ( email )

West Indies

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

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