A 75-year-old patient with irreversible respiratory disease is in the intensive care unit where repeated efforts to wean him from ventilator support have been unsuccessful. There is general agreement among the healthcare team that he could not survive outside of an intensive care setting, and the family insists that the physician “fix” it.

Medical futility is a subject of constant debate among healthcare providers particularly when the care to the patient is over a long protracted period of time, involves tremendous consumption of resources and there is no perceived improvement in the clinical condition of the patient. It remains a very complex and emotional issue that continues to be a challenge to the healthcare providers particularly because reaching public consensus is elusive.

As this debate continues, many experts advise against the use of the term “futile care.” From the family’s perspectives, care is never futile. The term “medically futile” refers to a situation in which the treatments or interventions can no longer achieve beneficial ends and are considered pointless; but who defines what constitutes beneficial ends? Today the determination of medical futility is made by the physician and is typically a result of the combined ethics, values, morals, experience and perspectives of the physician. From the physician’s perspective, medical futility is described as proposed therapy that should not be performed because it will not improve the patient's medical condition or won’t achieve a “legitimate goal of medical treatment.”

In the best case scenario, when death is imminent and the family has accepted the inevitable, consensus is reached between physician and patient/family. A mutual decision is reached to forego “heroic measures" and other life-sustaining interventions, ensuring everybody is at peace with the decision.

What if the patient or family requests an intervention that the physician or healthcare team considers futile?
In the above situation, it is important to encourage the patient/family/proxy to explain their rationale. This ongoing discussion may elicit concerns around specific issues, such as cultural outlook regarding health, medical treatment and death. It also provides an opportunity to clarify any misunderstandings and have a handle on what is acceptable for each patient and family. For some, the goals of care may be being comfortable, pain-free but not “drugged-up” and maintain some “control over their care” ; for another it may be the wish to survive for the next two weeks to see a daughter or son get married.

The role of the physician in all of this is really to communicate to the family or the patient the possible outcomes and to bring out their preferences. During the 2002 American College of Surgeons Symposium on medical futility, Dr. Timothy Pawlik spoke about the nature of the patient-physician relationship. He believes it is a fiduciary one wherein physicians are expected to serve the best interests of their patients over their own self-interests. Oftentimes, the patient and family members look to the physician for direction particularly when medical intervention involves complicated technology in an accelerated pace such as in the intensive care units. It is also a place where heroic measures are often exercised to support life not where care is withheld or withdrawn. However, it is in these settings where conflicts regarding medical futility may start.

Texas tackles medical futility with a model
While the national debate and conflict about medical futility and end of life care conflicts continue, Texas provides a model policy. The decision and judgment regarding medical futility is placed in the hands of the physician who is guided by his medical experience with input from trained ethics experts.

The Texas Advance Directives Act of 1999 is also known as the Texas Futile Care Law.[1] The statute reserves the determination of what treatments are futile to the medical personnel treating the individual patient. The law provides for a multidisciplinary approach in the event of a disagreement between the medical personnel and family members to resolve the dispute. If a difference of opinion arises, an ethics consultation is called, and the family must be given 48 hours to be involved in the consultation process. In addition, they are also provided a written report of the findings of the ethics review process. If the ethics committee fails to have the parties reach an agreement, and the medical personnel want to stop medical treatments, the family has ten days to find another facility that is willing to offer the treatments and have the patient transferred there. After ten days, if plans to transfer the patient have not been made and the family has not received a legal extension, the medical facility can withdraw care.

This new Texas Advance Directives Act apparently has been used numerous times to address this often difficult situation in the state and is reported to bring benefits to patients, families, physicians and healthcare institutions. This law provides full legal immunity to the medical personnel, if the process as stated in the law is strictly adhered to. It has provided not only a “legal safe harbor” but also a “moral safe harbor” by providing a process of consultation with parties who are not involved with the treatment of the patient.

In the absence of a state law in New Jersey that addresses such conflicts between the patient/family and the medical providers, physicians have considered such options as offering the patient/family a transfer to either another physician or facility. Transfers appear to be a satisfactory compromise that helps the current physician or provider avoid inappropriate treatment and allows the patient to get the treatment that he or she wants. Although this option exists, it is often difficult for the patient/family/proxy to find a new provider or facility. There is a great reluctance in accepting a conflict-ridden case. Another option is to access the bioethics committee of the hospital. The bioethics committee is largely composed of multidisciplinary practitioners who can provide consultation and opinion. However, the role of the committee is advisory and therefore not binding.

Faced with the limited mechanisms with which to handle medical futility disputes, bioethicists recommend that physicians take a proactive approach and encourage individuals to engage in advance care planning. This type of planning moves beyond developing a living will and/or establishing a power of attorney for healthcare decisions.