Medical Futility Laws and Policies: Are They Making a Difference

1. Medical Futility Laws and Policies: Are They Making a Difference Thaddeus M. Pope, J.D., Ph.D. Widener University Law School Summit Hospital (Nashville, TN) December 4, 2009

2. Futility laws and policies vary dramatically in effectiveness.

3. Compare basic types of laws: • Content • Effect

4. What is a medical futility dispute?

8. Causes of inappropriate medicine Surrogate demand Defensive medicine Vague standards Physician religion Physician anti-death

9. Provider wants to continue • Law requires continue • Family wants to stop • Family wants to stop

10. Patient • Advance directive • Proxy • Agent • Surrogate • Conservator • Health care provider “Continue to treat” “Treatment is inappropriate”

11. Some family wants continue • Some providers want continue • Family would stop if informed • Some family wants to stop • Some providers want to stop • Family wants to continue

16. Strange family dynamics • Unavoidably imperfect communication • Greater access to medical information (e.g. Internet)

17. Externalization • Costs • Guilt

20. “religious grounds were more likely to request continued life support in the face of a very poor prognosis” Zier et al., 2009 Chest 136(1):110-117

21. Rom Houben

22. Communication and mediation usually work

23. Prendergast (1998) • 57% surrogates immediately agree • 90% agree within 5 days • 4% continue to insist on LSMT

24. Garros et al. (2003) 2d Unresolved

25. Fine & Mayo (2003)

26. Hooser (2006) 2922

27. section 2.037

28. Earnest attempts . . . deliberate over and negotiate prior understandings . . . • Joint decision-making should occur . . . maximum extent possible. • Attempts . . . negotiate . . . reach resolution . . ., with the assistance of consultants as appropriate. • Involvement of . . . ethics committee . . . if . . . irresolvable.

29. . . . . • If the process supports the physician's position and the patient/proxy remains un-persuaded, transfer. . . . • If transfer is not possible, the intervention need not be offered.

30. Consensus Intractable

31. Mediation occurs in the “shadow” of the law

32. What motivated unilateral refusal laws?

33. Avoid patient suffering “This is the Massachusetts General Hospital, not Auschwitz.” “abomination,” “immoral,” “tantamount to torture”

34. Moral distress

35. Integrity of the profession

36. Stewardship

37. Distrust surrogate accuracy

38. Exposure to civil liability • State HCDA (incl. fees) • Battery • Medical malpractice • IIED / NIED • Informed consent • EMTALA

39. Exposure to criminal liability • Homicide Exposure to licensure discipline

40. Liability averse Litigation averse too Process is punishment

41. Easier to accede to surrogate demands • Patient will die • Provider will round off • Nurses bear brunt But not happy about it

42. Massachusetts Medical Society (Nov. 2008) Chilled by legal sanctions Cannot do what think right

43. “Why they follow the instructions of SDMs instead of doing what they feel is appropriate, almost all cited a lack of legal support.”

45. 4 Legal Approaches

46. 4 Basic Approaches • UHCDA model (e.g. TN) • Texas model • Ontario model • New Jersey model

47. UHCDA model

48. New Mexico (1995) Maine (1995) Delaware (1996) Alabama (1997) Mississippi (1998) California (1999) Hawaii (1999) Tennessee (2004) Alaska (2004) Wyoming (2005)

50. Tenn. Code 68-11-1808(e) “A health care provider . . . may decline to comply with . . . health care decision that requires medically inappropriate health care or health care contrary to generally accepted health care standards . . .”