Legal Duties of Clinicians When Terminally Ill Patients with Cancer or Their Surrogates Insist on ‘Futile’ Treatment

Abstract

The ASCO Post, in partnership with the American Society of Clinical Oncology (ASCO), communicates news of evidence- based multidisciplinary cancer care to a broad audience of 30,000 oncology professionals and ASCO members. Professor Pope authors a monthly Law and Ethics in Oncology column that explores the legal and ethical issues oncologists must be aware of in this era of precision medicine and changing health-care policy, both to protect patients’ rights and to safeguard against potential legal jeopardy.

For years, ASCO and other medical societies have lamented the persistent overuse of aggressive end-of-life treatment for patients with incurable cancers. Far too many terminally ill patients receive treatment for cancer and comorbidities that is unlikely to provide any meaningful benefit. Moreover, this aggressive end-of-life treatment is harmful. It exposes patients to risks and harms, such as nausea, heart failure, fatigue, and constipation. In short, the burdens of treatment seriously outweigh the benefits.

What causes the overuse of aggressive end-of-life care? A significant portion of overtreatment is clinician-driven. For example, some commonly used tests and procedures lack evidence-based support. Others are duplicative of tests and procedures the patient has already received. This clinician-driven overtreatment is not the focus of this article. ASCO and other societies have already deployed various measures to address this problem. This article focuses on a different problem: overtreatment demanded by the patient or his/her surrogate. In this situation, the clinician ensures the patient understands the prognosis and strongly recommends a palliative-focused plan. Still, the patient or surrogate insists on aggressive curative-directed treatment.

Keywords: medical futility, non-beneficial treatment, end-of-life

JEL Classification: I18, K13, K32