Advance Directives, Due Process, and Medical Futility

IN RESPONSE:

Berger suggests that the term futility “defies meaningful or clinically useful definition” and suggests that medically appropriate is the better term. Finucane, on the other hand, acknowledges that futility may have qualitative and/or physiologic components, but he goes on to suggest that futility is a “smokescreen.” Our experience suggests that although some find futility difficult to define, most physicians now know it when they see it (to paraphrase the late Justice Potter Stewart). We find the term useful not as a smokescreen, but as a quick reference to a class of patients who cannot recover or get well, who are either suffering or unable to appreciate the benefit or joy in being alive, and who cannot die easily or peacefully without permission. These are the same patients argued about in the “right-to-die” cases from Quinlan (1976) through Cruzan (1990). The parties seeking to allow death by withholding one or more life-sustaining treatments merely changed from family to medical team.

We find the word futility useful for quick communication and often modify it with the words physiologic or qualitative in an effort to strive for some clarity about the concepts. The law actually uses the words medically inappropriate rather than futility. Regardless of one's choice of words, we argue that following a legislatively endorsed process is more important. It is this process that ultimately protects all parties and allows for the evolution of a community standard for limitation of futile or medically inappropriate treatments without fear of legal liability.

Our Texas colleagues Flamm and Smith make several important legal points beyond the scope of our brief article for a medical audience. They wisely delineate the “flexibility” of the law, which allows for the diversity and availability of ethics committees. Arguing a more refined legal point, they further note that a physician's refusal “shall be reviewed by an ethics or medical committee.” However, this does not mandate ethics committee review; instead, it creates an incentive for review by providing a legal safe harbor of immunity from civil or criminal prosecution to those physicians and institutions who engage in the ethics review process when there is a disagreement. This incentive is rather powerful, and we are unaware of any physician or institution in Texas that, having been granted such a legal safe harbor, has been willing to stop disputed life-sustaining treatment without following the due process mechanism provided for.

• Copyright ©2004 by the American College of Physicians