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

• Author: Frederick R. Parker, Jr.
• Position: J.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.
• Pages: 755-803

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 derived from the author’s prior analysis in Law, Bioethics, and Medical Futility: Defining Patient Rights at the End of Life, 37 U. ARK. LITTLE ROCK L. REV. 185 (2015). That work addressed the issue of medical futility 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 both the refusal of life-sustaining treatment and the active administration of extreme palliative interventions. Id. This Article addresses only the first of those issues, with a specific focus on the Louisiana Natural Death Act. A portion of the 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 (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. 1. See generally ALAN MEISEL & KATHY L. CERMINARA, THE RIGHT TO DIE 2-3–2-41, 7-7–7-50 (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 treatment 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 this 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 170–81 (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 requested—whether 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 13-24–13-27. 4. BEAUCHAMP & CHILDRESS, supra note 1, at 170–81. See, e.g., UNIF. RIGHTS OF THE TERMINALLY ILL ACT (UNIF. LAW COMM’N 1989); UNIF. HEALTHCARE DECISIONS ACT (UNIF. LAW COMM’N 1993). According to Meisel, “several” states have adopted the URTIA in either its 1985 or 1989 version. See MEISEL & CERMINARA, supra note 1, at 7-54–7-58. 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 Fact Sheet – Health-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 generally MEISEL & CERMINARA, supra note 1, at 7-55, 7-79–7-89 (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 7-33–7-35. 5. See, e.g., Thaddeus Mason Pope, Medical Futility Statutes: No Safe Harbor to Unilaterally Refuse Life-Sustaining Treatment, 75 TENN. L. REV. 1, 3–4 (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 Practice, 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 “inability 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. ASS’N 2094, 2095 (1988)). The American Medical Association considers decisions about interventions that are 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. ASS’N, CODE OF MEDICAL ETHICS OF THE AMERICAN MEDICAL ASSOCIATION 18–19 (2014). 7. This lack of consensus presumably 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 758 LOUISIANA LAW REVIEW [Vol. 77 At its most fundamental level, the concept of “medical futility” relates to the ultimate scope of a physician’s obligation as a matter of law and bioethics to avail patients of specific clinical interventions. 8 In the most narrow, purely objective sense, a treatment regimen would be considered “futile” only if it lacks efficacy in terms of being able to accomplish the specific physiological objective for which it is employed. 9 Thus, an intervention that has been scientifically proven to have no physiological effect on a patient’s condition would not fall within the standard of care, and a physician’s decision not to provide it on the basis of physiological futility would stir no controversy. 10 At the opposite end of the spectrum, and viewed more broadly as a subjective concept, medical futility has been described as reflecting the “inability to prolong life for a time,” or the “inability to maintain an acceptable quality of life.” 11 As a practical matter, questions about futility tend to arise in circumstances that fall between the two extremes of purely objective and purely subjective measures, where...