'Doctor, Don't Give Up on Me!'

Leigh Page


March 16, 2016

In This Article

Legal Issues

By no means are doctors always on the side of withdrawing care. There are many cases when they are actually defending the patient's right to live in the face of families who want to pull the plug. In fact, this was what was happening in the landmark "right to die" cases of Karen Ann Quinlan and Nancy Cruzan in the 1970s and 1980s, involving patients in a vegetative state. But in those cases, the courts ruled on the side of the families, based on the notion that the families know best what the patient wants—and that what the patient wants is more important than what doctors think they should have.

These two legal decisions are often credited with moving legal standards in healthcare from supporting doctors' "paternalistic" decisions to supporting the "patient-centered" approach we have today. However, patient-centered legal principles can just as easily be used to support families who want aggressive care—even when doctors have determined that such care is completely futile. In a 2010 New Jersey court decision, Betancourt v. Trinitas Hospital,[19] the hospital was forced to rescind a unilateral DNR, even though the patient was in a permanent vegetative state. The hospital filed an appeal of the decision, but the patient died soon thereafter.

These patient-centered principles, established in case law, are also reflected in actual legislation. At first glance, state laws seem to uphold doctors' rights to withhold care when they think it's futile, but upon closer scrutiny, these rights are usually very limited, according to Thaddeus Mason Pope, a law professor at Hamline School of Law in St. Paul, Minnesota.

In many cases, he says, state laws limit patients' right to treatment that is contrary to generally accepted healthcare standards—for example, the thoracic surgeons' statement, which, by the way, Pope helped write. But "there's a lot of uncertainty about what these standards are," Pope says; and, moreover, "only a few states come close to assuring this right."

On his website,[20] Pope divides a sampling of state laws that he has reviewed into "green light," "yellow light," and "red light" laws, based on how much control doctors have over futility decisions. Texas is the only "green light" state on his list. The Texas law, passed in 1999, expressly allows clinicians to stop life-sustaining treatment without consent, as long as they stay within medical standards and allow disputes to be decided by a hospital ethics committee. In contrast, "yellow light" states provide doctors with some rights, but they are somewhat ambiguous. For instance, Pope says that California gives ethics committees the authority to mediate disputes, but it's not clear whether their decisions are final. And finally, the "red light" states, such as Idaho, Connecticut, Minnesota, New York, and Oklahoma, don't provide physicians with much of any rights.

However, physicians don't seem to pay very much attention to these laws, according to Dr Manthous. Despite the wide variation in these laws, physicians have pretty much the same approach to futile care from state to state, according to an August 2005 study he authored in Connecticut Medicine. (The study, along with all but the journal's most recent issues, isn't accessible on its website.) The study found that Connecticut intensivists' actions on futile care were basically the same as their counterparts in New York, Illinois, California, Florida, and Texas.

Persuading Families to Follow Doctors' Orders

Doctors and hospitals try hard to achieve agreement among patients and families with their attending physician's care decisions. Many hospitals have created an extensive set of processes for these situations, according to Douglas White, MD, director of the program on ethics and decision making in critical illness at the University of Pittsburgh. Hospitals may employ ethicists who work with patients or families who disagree with the doctor and help them to come up with a resolution, Dr White says. In some cases, he adds, the issue is resolved in the families' favor.

If families still don't agree, they can often appeal their case to the hospital ethics committee. Dr White says that in most of these disputes, families' objections to withholding care are based on personal values rather than on clinical standards of care. For instance, in a common example, the patient is incapacitated, everything has been done that could be done, and death is expected soon, but the family insists that the patient must be kept alive indefinitely, he says.

Dr White says that attending physicians, ethicists, and ethics committees need to respect families' arguments, but they don't have to agree with them. An attending physician might attempt to bargain with the family, delaying a decision to withhold care for a period of time, but Dr White says that this concession is unlikely to resolve the family's demands for indefinite care. "Seven more days is probably not going to satisfy the family," he says.

According to Pope, these hospital-based processes usually support the attending physician rather than the family, but they can help clear up misunderstandings about clinical issues that the family might have had, and they let families know that they're being listened to. As a result, many resistant families have come around. In a Texas study,[21] ethics committees agreed with the attending physicians in 70% of cases; and in those cases, 40% of patients or families agreed to discontinue treatment.

But in states other than Texas and perhaps California, Pope says that an ethics committee's decision rarely has any standing in the courts; and knowing this, many hospitals back down if the family continues to press its case. In some states, hospitals have the option of transferring the patient to another institution, but Pope says that there aren't many hospitals that would take on such a controversy.

When the family goes to court, it usually asks for a temporary injunction to immediately restore care, followed up by a permanent injunction. And in cases where the doctor withdrew care without seeking the family's agreement, such as with a unilateral DNR, Pope says that the family can sue the doctor without having to show damage, as is required in a malpractice case. He says that such a case is sometimes called a "tort of outrage," and it alleges that the defendant "exceeded the bounds of decency."

More families, Pope says, seem to be filing lawsuits against futility decisions, but they are still very rare. He adds that malpractice cases don't tend to work as well because they require great harm to have occurred. Also, because these patients have little earning power, the payment would be relatively small.


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