American Journal of Law & Medicine

Medical futility and implications for physician autonomy.(Conflicts of Interest in Health Care)

I. INTRODUCTION

The term medical futility has become a shorthand way to describe a situation in which a patient demands and a physician objects to the provision of certain medical treatment, on the ground that the treatment will provide no medical benefit to the patient.(1) The dilemma of medically futile care has gained prominence as a subject for debate in medical and legal literature,(2) has been discussed implicitly and explicitly in court opinions,(3) and has weighed heavily in the debate surrounding health care reform and accompanying discussion of allocation of health care resources.(4)

Recently, the issues surrounding the provision of nonbeneficial care became the subject of a federal court opinion. On February 10, 1994, the United States Court of Appeals for the Fourth Circuit handed down its decision in In re Baby K,(5) a case that has since served as the central focus for debate over the provision of medical treatment deemed inappropriate or futile by a patient's physician. Briefly stated, the court held that hospital physicians were obligated under the federal Emergency Medical Treatment and Active Labor Act (EMTALA)(6) to provide treatment, in the form of ventilator support, to an anencephalic infant when she presented to the emergency room. Despite pleas by physicians that rendering intensive care to Baby K was "medically and ethically inappropriate," the court found that the plain language of federal law imposed a duty to provide treatment.(7) Thus, the Baby K court resolved the conflict between the infant's caregivers and caretaker by overriding the physicians' medical judgment in order to accommodate the professed goals and desires of the patient's family.(8)

In the aftermath of the court's decision, one journalist referred to Baby K as "the latest symbol of the uphill effort to harness professional judgment, technology and human emotion in the service of rational medical care."(9) While Baby K may symbolize the eternal struggle between human aspirations and the limits of science, perhaps the case is best understood as a paradigm clash of values between physicians and patients."(10) This clash at the bedside is fully revealed by the Fourth Circuit's own admission that it "recognize[d] the dilemma facing physicians who are requested to provide treatment they consider morally and ethically inappropriate."(11) This judicial recognition, though bare in its legal import, raises the specter of the physician's autonomy in the medical futility debate.

This Article explores the role that assertions of a physician's professional conscience(12) play in the active debate surrounding the provision of treatment that is of questionable value to patients, their families, and ultimately to our society. Though the medical futility debate is complex in the moral dilemmas it poses, ultimately its resolution must be simple enough for adaptation by the institutions comprising our health care system. Those institutions include our judicial system, state and federal legislatures, and provider institutions across our country. This Article attempts to better understand and anticipate how each of these essential actors will balance the values of patients and their physicians, by investigating the role each has played in the medical futility debate from the perspective of physician autonomy.

Exploration of physician autonomy is important only if one believes, as I do, that each of the aforementioned institutions views patient autonomy as a paramount policy goal. Over the past two decades the bioethics movement has done much to advance the realities of patient autonomy, at least as revealed by the written laws in our country." Whether physicians welcome or resent this evolution, they ultimately must define their role in the treatment decision-making process. Nowhere is clear enunciation of a physician's role more important than in the medical futility arena, where clinical scenarios place patient and physician values in (often) irreconcilable conflict. In these situations, should a physician be forced to render treatment he or she believes is medically and ethically inappropriate? If not, should the burden of obtaining treatment fall on the patient, the declining physician, or the hospital?

This Article attempts to provide a framework for answering these difficult questions by suggesting that physicians and their sponsoring hospitals clearly define the limits of treatment they are willing to provide in any given circumstance. A review of existing case and statutory law in the area of medical futility shows that courts and lawmakers have promulgated vague and ill-defined policies which have left them susceptible to patient claims for limitless treatment. At the same time, health insurance providers have learned that clear, unambiguous policy language can be effective in limiting reimbursement liability to medically beneficial treatments. Thus, this Article suggests that policymakers in health care settings learn the lesson of clear, well-developed policies which precisely define their philosophy of care, so as to alert patients, families, and physicians to the institution's reasonable goals and expectations.

II. PHYSICIAN AUTONOMY AND THE COURTS

Perhaps the best, if not the only, evidence of judicial attitudes toward physician autonomy in the context of medical futility comes from the smattering of court cases in which patient families have sought treatment over the objection of attending physicians. To date, in nearly every known case in which the patient has sought treatment and the doctor has objected on the grounds that treatment offers no medical benefit, courts have found in favor of the patient.(14) Two cases stand out as representative of this judicial propensity.

The first case of this kind to be litigated, In re Conservatorship of Wanglie,(15) involved the care of Helga Wanglie, an eighty-five-year-old woman diagnosed to be in a persistent vegetative state, unable to breathe or eat on her own. Mrs. Wanglie was first admitted to Hennepin County Medical Center in January 1990, after falling in her home and sustaining a hip fracture. Over the next five months, she suffered a series of medical events, including cardiopulmonary arrest, which rendered her permanently unconscious.(16) When it became clear that she would not recover, the physicians caring for Mrs. Wanglie, including Dr. Steven Miles, a gerontologist as well as an expert in medical ethics, suggested to the Wanglie family that the aggressive treatment being provided to Mrs. Wanglie was of no medical benefit and should be discontinued.(17) Mr. Wanglie, Mrs. Wanglie's husband, objected and demanded all treatment be continued. After attempts at reconciliation and efforts to transfer Mrs. Wanglie failed,(18) a lawsuit ensued wherein Dr. Miles petitioned a Minnesota trial court to appoint a conservator to determine what was in the best interest of the patient.(19) Ultimately, the court appointed Mr. Wanglie, whom it said, was in the best position to act on behalf of his wife.(20)

One could view Wanglie as a decision which ushered the medical futility debate into our judicial system. Such a characterization, however, would be overbroad given the limited scope of the court's opinion. In her ruling, Judge Patricia Belois stated that the only issue before the court was whether it was in the best interest of Mrs. Wanglie "to have decisions about her medical care made by her husband of 53 years or by a stranger."(21) In fact, Judge Belois decidedly sidestepped the clash of values that served as the underpinning for the petition, remarking that "[n]o court order to continue or stop any medical treatment for Helga Wanglie has been made or requested at this time" and any discussion regarding such an order would be speculative.(22)

Despite the court's attempt to confine the import of its decision to the narrow facts and legal issues before it, the significance of the Wanglie scenario to our contemporary health care setting cannot escape notoriety. When a physician is moved to seek a court order to exercise his or her best medical judgment, we must recognize that more is at stake than a contest of values; the autonomy, integrity, and future of the medical profession are inevitably highlighted in such clashes. Taken to its practical outcome, Wanglie signals the erosion of physician autonomy.(23) That is, the court seemed unmoved that its decision would force physicians to continue aggressive treatment of Mrs. Wanglie, despite deeply held personal and medical objections to such care.

A more recent and explicit discussion of the role physician autonomy plays in the medical futility debate can be found in In re Baby K.(24) In that case, as in Wanglie, physicians found themselves in need of judicial advice as to whether they could exercise their best medical judgment in the face of family opposition. In Baby K, a suburban Virginia hospital(25) sought a declaratory judgment that it had no legal duty to provide treatment in the form of respiratory support to Baby K, an anencephalic infant,(26) when she presented to the hospital emergency room. Baby K was born at the petitioning hospital in October 1992, and was discharged to a nearby nursing home about one month later. Thereafter, the infant was readmitted to the hospital several times due to breathing difficulties.

During each of her stays in the hospitals, the physicians caring for Baby K discussed with her mother the possibility of limiting treatment to supportive care only, which would involve supplying nutrition, hydration, and warmth. In other words, the physicians believed that comfort care represented the standard of care for this patient, rendering aggressive treatment inappropriate, given Baby K's prognosis.(27) Ms. H, Ms. H, Baby K's mother, insisted that her daughter receive all available treatment, including mechanical breathing assistance whenever she could not breathe on her own. This impasse continued to plague the relationship between the physicians and Baby K's mother during each of her stays in the hospital.

In an effort to clarify, or perhaps validate, the legal viability of its position, the hospital filed an action following Baby K's second admission asking the court to declare that it had no duty to provide respiratory or other aggressive care because such care was "medically and ethically inappropriate."(28) Briefly stated, the hospital argued that under federal and state statutory law,(29) as well as prevailing standards of medical care, it was required to provide Baby K with the same treatment it would provide other anencephalic infants--supportive care aimed at making the child comfortable rather than aggressive treatment addressing her multiple medical symptoms. In a sense, the hospital was asking the court to allow it to treat the infant according to its own medical, moral, and ethical principles.

The district court denied the relief requested by the hospital,(30) and this decision was affirmed by the court of appeals. In reaching its decision, the court relied primarily on EMTALA,(31) a federal law enacted in 1986 to respond to Congress's concern about the practice of patient dumping. An example of patient dumping is a refusal by a hospital emergency room to accept or treat a patient with an emergency condition when that patient lacks medical insurance.(32) Looking to the language of EMTALA, the court by a 2-1 majority held that a hospital, through its physicians, have a duty to provide treatment necessary to prevent the material deterioration of a patient's emergency medical condition.(33) In this case, the court considered the patient's emergency medi- cal condition to be her respiratory distress, rather than her underlying anencephaly. Thus, any failure to provide Baby K immediate medical attention (in the form of mechanical ventilation) would cause serious impairment of her bodily functions, amounting to a breach of the hospital's statutory duty to provide stabilizing treatment to this patient.(34) The court characterized its opinion as "a straightforward application of the statute" which obligates the hospital to provide respiratory support to Baby K when she arrives at the emergency room in respiratory distress and treatment is requested on her behalf.(35)

While the court seems to reason its way to a conclusion of mandatory treatment with relative ease, relying on seemingly plain statutory language, the court's interpretation of the meaning and applicability of EMTALA to the Baby K scenario can be questioned on a number of grounds. …

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