Hospital Ordered to Pay Damages for Providing Futile Medical Treatment
Posted Jun 06 2011 5:40pm
The Andalusian La Ley de Derechos y Garantías de la Dignidad de las Personas en el Proceso de la Muerte, since copied both by other provinces and currently by the Spanish federal government, provides penalties for engaging in "therapeutic obstinacy." But I had not yet seen an example of sanctions for providing "futile" treatment.
Now I have one. A forthcoming article in La Revue de Médecine Légaledescribes a case in which a French hospital was ordered to pay damages for providing overly aggressive futile (obstinate) treatment to a hypoxic newborn. Here is the abstract:
On 2nd June 2009, Nîmes administrative court ordered Orange town hospital to pay damages for futile treatment. An apparently stillborn infant, who had suffered fromintrauterine hypoxia for 30 minutes was resuscitated after a further 25 minutes efforts. The child now suffers from serious disabilities. The jurisprudence: the maternal medical management was not found guilty. However, the judge considered the hospital was guilty of unreasonable obstinacy in saving the life of this child because the medical team could not be unaware of the serious neurological consequences of a long intrauterine hypoxia and because of the excessive duration of the resuscitation efforts. Comment: we will focus the discussion of this jurisprudence from a medico-legal and ethical point of view on four topics: the resuscitation efforts considered as excessively long whereas the starting of the resuscitation efforts was well-justified; inappropriately informing the parents of the death of their child, for which the judge found not guilty; the damages that will be paid to both parents and child, that is to say the indemnification of a disabled child for being in life, as in the Perruche affair in 2000; the difficulties of distinguishing between damage due to the unreasonable obstinacy to save his life, and the consequences due to his prior medical condition. In conclusion, as a consequence of this jurisprudence, neonatologists may prefer not to resuscitate a child who has suffered from intrauterine hypoxia, in order not to be found responsible for any possible resulting disability, but with the risk of being charged of failure to render assistance to a person in danger.