Seeking a Definition of Medical Futility with Reference to the Louisiana Natural Death Act

AuthorFrederick R. Parker, Jr.
PositionJ.D., Louisiana State University (Member, Louisiana Law Review, Class of 1987); LL.M. in Health Law, University of Houston; LL.M. in Taxation, New York University; Professor, Louisiana State University in Shreveport; Of Counsel, Onebane Law Firm, Lafayette and Shreveport, Louisiana.
Pages755-803
Seeking a Definition of Medical Futility with
Reference to the Louisiana Natural Death Act
Frederick R. Parker, Jr.
INTRODUCTION
The general question concerning the existence of a patient’s right in
the United States either to accept or refuse care at the end of life has largely
been resolved through a fairly consistent body of jurisprudence, statutory
schemes, and pronouncements of professional ethics.1 The principal
statutory expression of this right in Louisiana is found in the Natural Death
Act (the “Act”), in which the legislature recognized the right of patients
under certain conditions either to withhold treatment at the outset of care
or to withdraw treatment that had already been initiated.2 However, the
legislature left open the ultimate scope of this right, which remains the
Copyright 2017, by FREDERICK R. PARKER, JR.
Part of the discussion in this Article is d erived from the author’s prior
analysis in Law, Bioethics, and Medical Futility: Defining Pa tient Rights at th e
End of Life, 37 U. ARK. LITTLE ROCK L. REV. 185 (2015). That work addressed
the issue of medical futilit y in the specific context of the Uniform Health Care
Decisions Act (“UHCDA”) and the Uniform Rights of the Terminally Ill Act
(“URTIA”) with respect to b oth the refusal of life-sustaining treat ment and the
active administration of extreme palliative interventions. Id. This Article
addresses onl y the first of those issues, with a specific focus on the Louisiana
Natural Death Act. A portion of t he broader analysis in Law, Bioethics, and
Medical Futility: Defining Patient Rights at the End of Life that is equally relevant
to this discussion in the narrow context of the Louisiana Act is presented here with
the permission of the UALR Law Review.
J.D., Louisiana State University (Me mber, Louisiana Law Review, Class
of 1987); LL.M. in Health Law, University of Houston; LL.M. in Taxation, New
York University; Professor, Louisiana State University in Shreveport; Of
Counsel, Onebane Law Firm, Lafayette and Shreveport, Louisiana.
1. See generally ALAN MEISEL & KATHY L. CERMINARA, THE RIGHT TO DIE
2-32-41, 7-77-50 (3d ed. 2004). These issues initially arose when surrogates for
permanently unconscious patients who did not satisfy the legal criteria for whole
“brain death” began to refuse treat ment that offered no reasonable hope of either
restoring the patient’s capacity or reversing the dying process. See id. at 2-3.
Perhaps the most widely cited United States Supreme Court case in th is regard is
Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261 (1990). See also TOM L.
BEAUCHAMP & JAMES F. CHILDRESS, PRINCIPLES OF BIOMEDICAL ETHICS 17081
(4th ed. 1994) (describing and integrating surrogate judgment making standards
arising out of jurisprudence).
2. LA. REV. STAT. § 40:1151 (2016).
756 LOUISIANA LAW REVIEW [Vol. 77
subject of debate both in the courts and among physicians, bioethicists,
and moral philosophers. One of the most significant and problematic of
these unresolved questions involves the relationship between the Act and
the elusive concept of “medical futility.”
Although the Act unambiguously reflects the traditional view of the
patient’s right of self-determination as a negative one, the contemporary
variant of the question asks whether a patient’s right to refuse
recommended treatment necessarily encompasses the right to receive
interventions that have not been offered, and, if so, what constraints might
limit the scope of that positive right. Framed from the opposite
perspective, the question would ask whether, and to what extent, the Act
would recognize a physician’s authority to withhold or withdraw life-
sustaining treatment that a patient has expressly requestedwhether
directly or through a surrogate.3
Although other states have enacted similar statutory schemes as a
means of ensuring the patient’s right to refuse life-sustaining treatment,4
some commentators have argued that the statutes also were intended to
recognize a physician’s authority to unilaterally withhold or withdraw life-
sustaining procedures on the grounds of medical futility.5 This issue is
perhaps most problematic when a surrogate for a permanently unconscious
or otherwise irreversibly incapacitated patient seeks treatment that would
be beneficial in the sense of postponing the moment of death, but which
3. Cf. MEISEL & CERMINARA, supra note 1, at 13-2413-27.
4. BEAUCHAMP & CHILDRESS, supra note 1, at 17081. See, e.g., UNIF.
RIGHTS OF THE TERMINALLY ILL ACT (UNIF. LAW COMMN 1989); UNIF. HEALTH-
CARE DECISIONS ACT (UNIF. LAW COMMN 1993). According to Meisel, “several”
states have adopted the URTIA in either its 1985 or 1989 version. See MEISEL &
CERMINARA, supra note 1, at 7-547-58. According to the Uniform Law
Commission’s Legislative Fact Sheet, the UHCDA had been adopted by Alaska,
Delaware, Hawaii, Maine, Mississippi, New Mexico, and Wyoming as of 2014,
although the advance directive statutes of some states appear to be modified forms
of the UHCDA. Legislative Fa ct SheetHealth-Care Decisions Act, UNIFORM L.
COMMISSION, http://www.uniformlaws.org/LegislativeFactSheet.aspxtitle=Health-
Care%20Decisions%20Act [https://perma.cc/RT3X-YG4X] (last visited Jan. 10,
2016). See genera lly MEISEL & CERMINARA, supra note 1, at 7-55, 7-797-89
(summarizing the law in this regard in other jurisdictions). Notwithstanding the
narrow scope of this right as expressed in statutory schemes, however, the various
advance directive statutes are cumulative with existing law. According to Meisel,
“they are intended to preserve and supplement existing common law and
constitutional rights and not to supersede or limit them.” See id. at 7-337-35.
5. See, e.g., Thaddeus Mason Pope, Medical Futility Statutes: No Safe Harbor
to Unilaterally Refuse Life-Sustaining Treatment, 75 TENN. L. REV. 1, 34 (2007).
2017] SEEKING A DEFINITION OF MEDICAL FUTILITY 757
the attending physician has denied because it offers no reasonable hope as
a curative measure.
This Article addresses the specific issue of how the Louisiana Act
might inform the question of whether, or in what circumstances, treatment
can be so futile that a patient has no positive right to receive it. As this
issue most commonly arises in the context of permanently incapacitated
patients whose surrogates speak on their behalf, it would be appropriate to
first consider the relevance of a patient’s decisional capacity to the
question. As a preliminary matter, this Article begins by discussing the
concept of personhood and the relevance of capacity to the right of a
severely incapacitated patient to accept or refuse treatment.
I. PERSONHOOD, DECISIONAL CAPACITY, AND THE
PROBLEMATIC CONCEPT OF MEDICAL FUTILITY
The courts, practicing physicians, and bioethicists have long struggled
in their efforts to define medical futility in a meaningful way, yet they
remain confounded in the search for a universal meaning of the term that
fairly accommodates the convergence of law, medicine, and bioethics.6
The elusive nature of a workable definition stems from the problematic
relationship between the ambiguity inherent in the concept of futility, the
subtle uncertainties that inevitably attend the exercise of clinical judgment,
and the fluid boundaries that define the parameters of professional
discretion.7
6. In general, it has been said that futility is not “a discrete and definable
entity . . . [but] merely the end of the spectrum of therapies with very low
efficacy.” MEISEL & CERMINARA, supra note 1, at 13-14 (quoting John D. Lantos
et al., The Illusion of Futility in Clinical Pr actice, 87 AM. J. MED. 81, 81 (1989)).
In the narrow sense, treatment would be considered “futile” if it lacks efficacy in
terms of accomplishing the specific physiological objective for which it is sought.
Id. at 13-15. Physicians are generally regarded as having the professional
prerogative to unilaterally withhold or withdraw such objectively futile clinical
interventions, and to do so without the patient’s consent. Id. In a broader sense,
futility has been described as the “inabilit y to prolong life for a time,” or the
“inability to maintain an acceptable quality of life.” Id. at 13-13 (quoting Stuart J.
Younger, Who Defines Futility?, 260 J. AM. MED. ASSN 2094, 2095 (1988)). The
American Medical Association considers decisions about interventions that ar e
not futile in an objective physiologic sense to be sufficiently value laden as to
make them a matter of the patient’s prerogative. See, e.g., AM. MED. ASSN, CODE
OF MEDICAL ETHICS OF THE AMERICAN MEDICAL ASSOCIATION 1819 (2014).
7. This lack of consensus pr esumably becomes increasingly problematic as
our population ages and as financial considerations increasingly constrain the
provision of health care, making the issue likely to be both more common and

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