Futile care theory (as I call it) or medical futility allows doctors to unilaterally refuse wanted life-sustaining treatment based on the physician’s values — even if the patient has requested that the care continue, even if it vetoes a patient’s advance medical directive.
The worst such law in the U.S. is in Texas. And now, Senate Bill 222, authored by John Edwards of Roanoke, would bring this form of medical coercion to Virginia with even fewer patient protections than exist in Texas.
The bill requires hospitals to establish conflict mechanisms for disputes over wanted life-sustaining treatment that a physician does not wish to provide based on his or her values. If the conflict cannot be resolved thereby, the patient can be pushed out of wanted treatment if no other doctor can be found to take the case. From the bill (my emphasis):
If, at the end of the 14-day period, the conflict remains unresolved despite compliance with the hospital’s written policy established pursuant to subdivision B 21 of § 32.1-127 and the physician has been unable to identify another physician or facility willing to provide the care requested by the patient, the terms of the advance directive, or the decision of the agent or person authorized to make decisions pursuant to § 54.1-2986 to which to transfer the patient despite reasonable efforts, the physician may cease to provide the treatment that the physician has determined to be medically or ethically inappropriate.
Realize that under futile care theory, the treatment isn’t stopped because it has ceased working, that is, it no longer is maintaining life. Rather, it is being stopped precisely because the intervention is keeping the patient alive when that is not what the doctor wants, whether based on a view of the quality of the patient’s life, or lurking beneath the surface, the costs of care.
The bill would also give greater protection to the doctor who stops care from the consequences of malpractice than would be received by the doctor who provided continuing treatment in accord with the patient’s desires:
A health care provider who complies with the requirements of this section shall be presumed to have complied with the standard of care set forth in § 8.01-581.20, absent clear and convincing evidence of gross negligence or willful misconduct, and shall not be subject to criminal prosecution or disciplinary action related to actions taken or not taken in accordance with this section, absent gross negligence or willful misconduct.
That is almost a complete legal privilege against liability. While this bill does not authorize assisted suicide, like laws legalizing that act always provide, it means that doctors who take actions to help cause death are held to a lower legal standard of accountability than doctors who seek to maintain it.
Futile care is well meaning, but ultimately authoritarian — and this bill especially so since it would seem to give ultimate say to a doctor, not even to a bioethics committee where different perspective might prevail. That is wrong.
If the continued treatment of a patient is so egregiously against the patient’s interests, the life or death dispute belongs in court, with an open process, with the right of due process of law, cross examination, and appeal. Doctors should not be allowed to paternalistically impose their values on disagreeing patients and their families with no real protection for patient rights.
Photo credit: TryJimmy, via Pixabay.
Cross-posted at The Corner.