Meir Katz, a student at the Georgetown University Law Center, has posted to SSRN a 53-page article titled When is Medical Care "Futile"? The Institutional Competence of the Medical Profession Regarding the Provision of Life-Sustaining Medical Care. Here is the abstract:
"Medical futility," the doctrine by which hospital ethics boards have assumed the right to authorize medical providers to unilaterally withdraw or cease aggressive life sustaining medical care, has swelled in popularity in recent years and has affected the lives of countless terminal patients. Unfortunately, the case and statutory law surrounding medical futility is inconsistent and appears to provide medical providers and patients alike little guidance in this extremely sensitive area. Lost in the confusion created by the case and statutory law is due consideration of the normative case behind "medical futility."
"Futility," by definition, is preceded by an important moral judgment. It opines not just on the economic costs of treatment vis-¿-vis the likelihood of physiological success, it also opines on the value of the life that hangs in the balance. Accordingly, through medical futility, medical providers have entered an area of discourse that is beyond their expertise. Science and medicine can say nothing about the value of human life generally or the lives of terminal patients specifically and the attempts by medical providers to do so are saturated in bias and moral judgment. Certainly, medical providers can and should discuss with their patients the likelihood of success and the potential pitfalls of any medical treatment. But once that discussion becomes an assertion that medical treatment is inappropriate, it transforms into a normative argument that a medical provider has no expertise to make.
As the recipient of three degrees from Georgetown, I frankly expected more from a 3L at the law school. The author does raise many relevant issues and uses many relevant sources. But there are some serious problems with the article. At bottom, he fails to grapple with the locus of the relevant debates. Some specific comments include:
There is a good deal of first person emotional commentary that is inappropriate for an academic law review.
The article ranges very, very far, leaving the coverage of each issue quite shallow. Indeed, some points are merely asserted rather than supported with arguments or evidence.
The author accuses the medical profession of hiding the value-laden nature of futility. But this is inaccurate and unfair. This was a relevant argument 15 years ago. But this lesson has been learned. There is no pretense that scientific expertise justifies unilateral refusal. The question in the title of the article is no longer being posed. The term "futility" is not even hardly used anymore as a standard in statutes or otherwise.
One specific example the author offers of masking the value-laden nature of futility is a UCLA policy that says treatment for PVS patients can be withheld since they could not be "meaningful" to the patient. But, here, this is one context where there is a solid purely scientific basis for such a conclusion.
Sticking with the theme that value judgments cannot be left to the medical profession, the author argues that such decisions must instead be made by the broader society. But the author fails to acknowledge that they have been. The Texas Advance Directives Act and the Hawaii Health Care Decisions Act were enacted by duly elected representatives.
The author emphasizes that the patient must make the value judgments about quality of life. But the author fails to acknowledge that the overwhelming majority of disputes are not between patients and physicians but between surrogates and physicians.