Toward a Pragmatic Model of Judicial Decisionmaking: Why Tort Law Provides a Better Framework Than Constitutional Law for Deciding the Issue of Medical Futility

• Publication year: 1996
• Citation: Vol. 19 No. 03

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 19, No. 3SPRING 1996

Toward a Pragmatic Model of Judicial Decisionmaking: Why Tort Law Provides a Better Framework than Constitutional Law for Deciding the Issue of Medical Futility

Brent D. Lloyd(fn*)

If I were hospitalized with a bad case of the flu, I could not rightfully demand that my attending physician prescribe antibiotics. Antibiotics are not an effective treatment for the flu because the flu is viral, not bacterial, and antibiotics are effective only against bacterial infections.(fn1) Even in the nomenclature of doctors and lawyers, the point is a simple one: physicians have no obligation to provide treatment deemed to be "medically futile."(fn2) In determining whether a specific treatment is medically futile, physicians ask whether providing the treatment would benefit the suffering patient.(fn3) The above example is a simple one because the treatment that I am demanding would not be effective against the flu and would, therefore, be of no benefit to me.

The question of whether a treatment is medically futile is most often a purely clinical one of the sort that generates little controversy.(fn4) In the above example, my physician's special competence unquestionably includes the ability to determine which medicines should be prescribed and which withheld. Determinations of this sort are based on clear treatment goals (e.g., recovery from the flu) and fairly certain results (e.g., antibiotics will not aid recovery from the flu).

The same cannot be said for the kind of medical futility with which this Comment is concerned. Indeed, as we move further from the flu scenario, the term "medical futility" acquires a nebulous new meaning that is divorced in all but name from the clinical definition just discussed. The following hypothetical recreates the essential facts of In re Wanglie,(fn5) the first case of medical futility to reach the courts.

Imagine that I am a longtime cigarette smoker of advanced years and, as a result, I am unable to breathe without a respirator. To make matters worse, I have suffered a stroke and am in a comatose condition that my physician calls a permanent "vegetative state."(fn6) Neurologists at the hospital where I am being treated have informed my physician that I am unlikely to ever regain consciousness, much less live a normal life. My brain damage is severe, but it is unknown whether I have any thoughts or dreams in my mechanized slumber. Always wary of legal documents, I left no written expression of whether I would prefer to live or die under circumstances like these.(fn7) Indeed, I found the topic a touchy one, and my family and friends do not recall my ever having expressed an opinion one way or the other. Only one thing is certain: I will be able to live many more years with the aid of a respirator.

Now suppose that my physician wants to terminate the respirator treatment because she believes that the mere preservation of my physical existence is nonbeneficial and, therefore, such treatment is medically futile. In her opinion, the respirator is just as futile for treating a permanent vegetative state as antibiotics are for treating the flu. Does the fact that my life depends on its continued use preclude her from declaring it a futile treatment?

Before we answer this question, or examine the process of answering, let us indulge in the recitation of a few more facts. My physician has another patient in need of a respirator for survival. Predictably, my respirator is the only one currently available in this under-funded facility. The other patient's likelihood of recovery is far greater than mine. Moreover, he is younger and his brain damage is less severe. Although comatose, he exhibits signs of awareness such as darting eyes, suggestive of a dream state, and tears and twitches upon hearing the voices of his family. He will likely regain consciousness. I, on the other hand, am dead to all stimuli save the tubes to which I am vitally connected. Keeping my body alive costs thousands of dollars each day,(fn8) but, for religious reasons, my family insists that the treatment continue.

Things were much easier when I had the flu. While the futility question faced there was a purely clinical one for which there was a clear answer, the present example raises complex economic and moral questions that are considerably less straightforward. In its most stark formulation, the issue in the present example is whether patients in my condition should be kept alive with costly cutting-edge technology when doing so substantially reduces the resources available for more promising and widely accepted treatments.(fn9) It is impossible to determine whether a life-sustaining treatment can be considered in any sense nonbeneficial without at least a partial answer to the moral, ethical, and economic questions involved.(fn10) Because there is no common law or statutory authority on these questions, the physician in the hypothetical above is left to her own devices in deciding whether my respirator treatment is futile or beneficial and, hence, whether she has the duty to make this treatment available.

Recognizing that courts will eventually have to confront the issue of medical futility,(fn11) this Comment argues that there is no principled basis for omitting these difficult questions from a legal analysis of the issue and that courts should therefore decide the issue in a manner that honestly confronts them. Specifically, the argument advanced here is that courts confronted with cases of medical futility should decide the issue under principles of tort law, rather than under principles of constitutional law. The crux of this argument is that tort principles provide an open-ended analytical framework conducive to considering troublesome questions like those raised by the respirator scenario, while constitutional principles provide a framework that is conducive to avoiding those questions.

This argument is presented in three parts. Part I provides a general overview of medical futility. Part II describes two opposing methods of deciding cases-formalism and pragmatism-and shows why the issue of medical futility should be approached pragmatically. Finally, Part III argues that tort law provides a pragmatic model of decisionmaking better suited to deciding issues of medical futility than the formalistic model often used in constitutional decisions of similarly volatile issues.

I. Medical Futility

The background material presented below is divided into four subparts. Subpart A explains the four ways in which the concept of medical futility is used in contemporary health care, paying particular attention to the type of futility at issue in the respirator scenario. Subpart B discusses how the four concepts of medical futility evolved in response to recent economic incentives to limit life-sustaining treatments. Subpart C reviews the debate over the use of medical futility as a rationale for terminating or withholding treatment in cases such as the respirator scenario. Finally, subpart D discusses the unsettled legal status of this difficult and multi-faceted issue.

A. The Contemporary Concept of Medical Futility

The term "medical futility" has several acceptable synonyms but no real definition. It refers generally to a "physician's conclusion that a therapy will be of no value to the patient and should not be prescribed."(fn12) As a limitation on the physician's duty to a patient, the notion that a physician has no duty to provide futile treatment is grounded in settled principles of negligence law.(fn13) Despite its familiar foundation, however, the concept of medical futility has never been explicitly relied upon in judicial decisions(fn14) or defined by statute.(fn15)

This lack of authority leaves physicians free to define what constitutes futile treatment on a case-by-case basis.(fn16) As a result, the concept of medical futility has a confusing array of meanings derived from varied clinical contexts. Despite this definitional confusion, it is clear that, as a means of limiting expenditures, medical futility is becoming increasingly important in contemporary health care.(fn17) The discussion below identifies four distinct applications of the concept of medical futility.

1. Physiological Futility

A treatment is physiologically futile when it "is clearly futile in achieving its physiological objective and so offers no physical benefit to the patient."(fn18) In the flu scenario, for example, my physician refused to prescribe antibiotics because doing so would not aid my recovery from the flu. As a rationale for withholding treatment, physiological futility is less troublesome than the "nonbeneficial treatment" rationale invoked in the respirator scenario.(fn19) Unlike this more extreme version of medical futility, physiological futility raises purely medical questions informed by clear treatment goals.(fn20)

2. Nonbeneficial Futility

The current debate owes most of its fervor to the frequent use of medical futility as a rationale for withholding or terminating life-sustaining treatments that are considered "nonbeneficial."(fn21) Although this version of medical futility recognizes that life-sustaining treatment may provide important physical benefits, it justifies withholding such treatment on the ground that the treatment is "nonbeneficial" in a holistic sense.(fn22) Consider the...