Reassessing the Judicial Treatment of Medical Futility Cases

Thaddeus Mason Pope, Reassessing the Judicial Treatment of Medical Futility Cases. Marquette Elder’s Advisor, Vol. 9, 2008 Available at SSRN.

Over the past twenty-five years, a significant number of surrogate decision makers have demanded that a health care provider use medical technology to prolong a patient’s life beyond the point thought medically appropriate. These surrogates want to continue life-sustaining medical treatment (LSMT) that providers want to stop. While most of these futility disputes are resolved informally inside the hospital, dozens have now been litigated in U.S. courts. Because the judicial treatment of these disputes casts a long, dark shadow on the informal resolution of all the others, it is important to ascertain exactly what guidance these court cases provide.

In assessing the judicial treatment of futility cases, most of the medical, legal, and bioethical literature concludes that courts have generally disfavored providers. But these assessments are based on limited and outdated sets of cases. In this article I offer a comprehensive review of futility cases from 1983 to 2007. Based on this review, I argue that courts have generally neither prohibited nor punished the unilateral refusal of LSMT. Providers have regularly obtained both ex ante permission and ex post forgiveness for stopping LSMT without consent.

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