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Medical Futility Statutes: No Safe Harbor

Posted Sep 22 2008 10:53am

I just received the offprints of my article in the Tennessee Law Review: "Medical Futility Statutes: No Safe Harbor to Unilaterally Refuse Life-Sustaining Treatment." [75 Tenn. L. Rev. 1-81 (2007)]

I loaded a PDF of the article here . Of course, the final published version of the article will also soon be available on Westlaw, Lexis, HeinOnline, SSRN, and BePress.

Here is the abstract:

Over the past fifteen years, a majority of states have enacted medical futility statutes that permit a health care provider to refuse a patient’s request for life-sustaining medical treatment (LSMT). These statutes typically permit the provider to unilaterally stop LSMT where it would not provide “significant benefit” or would be contrary to “generally accepted health care standards.” These safe harbors are vague and imprecise, however. Consequently, providers have been reluctant to utilize these medical futility statutes.

The uncertainty concerning these statutes most likely cannot be reduced. States have been unable to reach a consensus on substantive measures of medical inappropriateness. Only a purely process-based approach like that outlined in the Texas Advance Directives Act (TADA) has proven effective in inducing the conduct that medical futility statutes intended. Therefore, while the specific contours of TADA must be refined, policymakers in other states should look to the TADA as a model.

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