An End-of-Life Quandary
solving discord over life-sustaining treatment
What do we do when there is an irresolvable conflict between a patient—or, more commonly, a family—who wants to continue with life-sustaining treatment and a physician who believes the treatment is inappropriate?
In a recent article in the New England Journal of Medicine, Dr. Robert Truog proposes that health care providers should do whatever the patient demands. Such an approach would remove all medical judgment from the physician and transform the doctor from a moral agent with professional responsibilities toward the patient into a technological instrument whose only role is to implement the family’s requests. Alternatively, Dr. Truog suggests that health care providers should seek declaratory relief in court.
To examine the efficacy of that option, let’s investigate a recent Massachusetts case arising from a treatment dispute at Massachusetts General Hospital, In re Howe. In December 1991, Barbara Howe was diagnosed with ALS (amyotrophic lateral sclerosis, also known as “Lou Gehrig’s disease”). After the diagnosis, she executed a health care proxy designating her daughter Carol as her health care agent. Howe expressed her wish to undergo aggressive treatment, so long as she could interact with her family. By April 2002, her condition became dire. She could no longer communicate with her family. At her daughter’s request, aggressive treatment continued. The following spring, Howe’s inability to close, and thereby lubricate, her eyes resulted in a corneal ulcer on her right eye that, in turn, necessitated its surgical removal. Thereafter, her left eye was taped shut and untaped only in the presence of her daughters so as to ensure visual contact with her family. MGH’s ethics committee found that continued care “demands that the entire body of caregivers violate their professional oaths, [and] the standards of medical and nursing practice.”
Should the hospital be forced to provide that care? And, if not, where and how do we draw the line? These questions involve a unique confluence of medical, moral, theological, and family issues against the backdrop of the ultimate finality: death. These questions are also certain to persist, especially as life-sustaining technology continues to improve. There are four potential resolutions to the issue.
First, health care providers may be obligated to continue treatment indefinitely over their objection, but consistent with the wishes of the patient. This would reduce the physician to a servant of the patient’s demands. It also would create non-sustainable economic burden on an already strained health care system.
Second, health care providers could be vested with the power to unilaterally refuse care. That would mark a significant retreat from well-established notions of patient autonomy by marginalizing the patient’s wishes at the most important of times. Given the irreversible consequences of the refusal of life-sustaining treatment, some standardized decision-making process is necessary to preclude rash actions and mistakes or the substitution of an individual physician’s values for those of the patient.
The third option is a judicial, case-by-case approach, initiated by either the patient or the health care provider. Courts, however, are ill-equipped for the timely resolution of end-of-life issues as the outcome of the Howe case demonstrates. There, the hospital sought declaratory relief in June 2003. The litigation continued for twenty-one months, until the parties agreed that the hospital would provide ventilatory support and intensive care for an additional three months. The settlement was the agreed-upon compromise between no further treatment and indefinite treatment. As this case demonstrates, trial judges have an inherent incentive to delay the case as long as possible in the expectation that the patient may die during the process. That outcome spares the judge from having to make a potentially unpopular decision. That, in fact, is what happened in Howe. Howe died some twenty- nine days before the three month extension expired.
A better resolution to these disputes is to provide a process by which physician-patient conflicts can be settled. The Texas Advance Directives Act provides an effective model. Under that statute a process is initiated when the attending physician recommends against life-sustaining treatment that the patient (or her proxy) wishes to continue. Thereafter, the treatment will continue pending a review by the hospital ethics committee. The patient (or proxy) is entitled to participate in this review. If the ethics committee concludes that the attending physician has erred, treatment will be maintained. If not, the committee must provide a written explanation of the decision, and assist the proxy in finding a physician and facility willing to provide the requested treatment. If an alternative provider is found, the hospital must facilitate a transfer. After ten days, if an alternative provider cannot be found, the hospital may withdraw treatment. The ten-day period may be extended, with court permission, if there is a reasonable expectation that a willing facility will be found.
There is a better approach to physician family disputes than continuing treatment indefinitely or resorting to protracted, costly, cumbersome legal procedures. Texas provides the model. Under its statute, patient demands will be met, unless the medical community unanimously determines that the family requests are inconsistent with medical ethics and the standard of care for someone in the patient’s condition.
Ultimately, public policy should conclude that if no physician is willing to provide the aggressive treatment requested, then no physician is obligated to provide such treatment.
—Patrick P. Moore ’07 is clerking for
Justice Robert Cordy of the Massachusetts Supreme Judicial Court. This
article is based on Moore’s note on life-sustaining treatment in the
March 2007 issue of Boston College Law Review.
More Legal Currents:
Let Them Eat Cake