Community Standards of Medical Futility: Pros & Cons
Posted Dec 11 2013 7:09am
Over the past few decades, many metropolitan areas have developed (or tried to develop) community-wide "standards of care" regarding how to address medical futility disputes. These have included Houston, Toronto, Denver, San Diego , and now Minneapolis-St. Paul.
These policies have tremendous value in achieving 90+% rates of consensus and facilitated agreement. But what is the value of these policies, in intractable disputes, in terms of reducing the legal risk (or perception of legal risk) that drives clinicians to "cave-in" to surrogate demands for inappropriate, non-beneficial, and disproportionate treatment? Here are a few observations.
1. Courts defer (and want to defer) to good internal dispute resolution processes. The fact that multiple facilities in the area have adopted the same process tends to show that such a process is reasonable.
2. On the other hand, while courts defer to medical and ethical expertise, these model policies lack specific clinical standards and are focused purely on procedure. Since courts know procedural due process, they may be less likely to defer. This is especially true, if the court finds the process to be unfair, for example, by failing to include independent, neutral members on the relevant committees.
3. Only Texas, Hawaii, and a handful of states specifically provide legal protection (safe harbor immunity) for following the recommendation of an ethics committee.
4. So, in most jurisdictions the ethics committee process only serves to show the careful deliberation of the treating physician and facility. It expands the charting and documentation that typically deters lawsuits. The plaintiff's expert witnesses can still establish that the reasonable physician would not have withdrawn life-sustaining treatment without consent under the circumstances.
5. In other words, the clinical conditions (e.g. no dialysis for patients in PVS) under which a futility policy should be invoked are not themselves articulated in the futility policy. So, no matter how fair the articulated process, the claim would be that it was wrongly utilized in THIS patient's situation.
To be sure, the adoption of a community-wide model policy would not make any clinician or hospital worse off. My take-away point is that there are some real limitations to the potential benefits of adopting such a policy.