Futility and the Law [This section is based on Susan B. Rubin, When Doctors Say No, (Indiana University Press, 1998).
Clarence Herber: After routine surgery, Mr. Herbert went into cardiorespiratory arrest. After a diagnosis of permanent brain damage, his ventilatory support was withdrawn, as was intravenous nutrition and hydration. Mr. Herbert’s physicians were subsequently charged with murder. The charges were dropped by the California Applellate Court in 1983. The interesting thing, for our purposes, is that the court concluded: “A physician has no duty to continue treatment, once it has proved to be ineffective. … A physician is authorized under the standards of medical practice to discontinue a form of therapy which in his medical judgment is useless….” [Barber v. Superior Court of California, 147 Cal. App. 3d 1006, 1017, 195 Cal. Rptr. 484 (1983).] This statement in <I>Barber</I>, however, was not intended to give guidance about when it is reasonable to discontinue treatment.
Baby L. Baby L. was born with fetal hydronephrosis and oligohydramnios, and was repeatedly treated for two years with pneumonias, sepsis and cardiopulmonary arets. Physicians, against her mother’s instruction, decided that further treatment was not in Baby L.’s interest. The mother sought the help of probate court, who did not here the case because another physician agreed to take the case. Thus, the law still was not used to force treatment in face of a declaration of futility.
Mrts. Helga Wanglie. Mrs. Wanglie, 87 years old, After a series of programs, a DNR order was put in place, but her family refused to allow her to be withdrawn from a ventilator, despite the apparent fact that she was in a persistent vegetative state. In the 1991 Wanglie case, the court only addressed the question of legal guardianship.
Stephanie Herrell. Stephanie was diagnosed as anencephalic. Her mother mother refused a DNR order and discontinuation of ventilator support. An ethics committee found that the support was futile. But the hospital successfully weaned Stephanie from the ventilator. Regardless, the hospital sought a court order to allow them, eventually, to discontinue treatment. The court rejected this, citing Emergency Medical Treatment and Active Labor (EMTALA) law, the Americans with Disabilities Act, and the Rehabilitation Act, as well as on the 14th Amendment Due Process clause.
This was upheld ty the appllate court, based on EMTALA. The Supreme Court refused to hear the case.
Catherine Gilgunn. 71 year old Mrs Gilgunn had a history of serious medical problems, including Parkinson’s disease, breast cancer and a stroke. She ended up, atfter three hip replacements, in a coma and on support at Massachusetts General Hospital. The hospitals care committee and her doctors agree on a DNR order. But Mrs. Gilgunn’s daughter objected. But the order was apparently written anyway and Mrs. Gilgunn dies of respiratory distress. In 1995 a jury concluded that the hospital and two physicians did not act negligently. But due to lack of appeal, this court case has little weight as a precedent for future cases.
Federal law has neither approved or rejected the use of futility as a basis for discontinuing treatment. In the 1985 Federal Child Abuse Amendment, medical futility was mentioned as one of the exceptions to the requirement that indicated medial treatment, such as nutrition and hydration be provided. Susan Rubin concludes, “”… the discussion to date has not resolved definitively the question of whether futility is a sufficient justification for physician unilateral refusal to offer, provide, or continue treatment.” [[When Doctors Say No, p. 29]