Addressing Medical Futility Disputes

1. Addressing Medical Futility Disputes Michael Wassenaar, PhD Clinical Ethicist May 3, 2012

2. Case study: Mrs. S. • 59 yr-old woman w/ ESRD, diabetes, skin lesions, ulcers and non-healing AKA • Daughter (DPOA) wants “everything” done, per pt’s last words • Significant pain • Full code

3. Futility In everyday life: Something that’s not going to work, no matter how hard you try! From the Latin futilitas = leaky

4. Medical futility Medical futility (in general): Treatment that is not likely to achieve its intended result or produce any benefit. Implication: We are not obligated to offer futile treatment. E.g.: A physician should “refuse to treat those who are overmastered by their diseases, realizing in such cases medicine is powerless.” (Hippocratic writings)

5. Proposed Definitions Physiologic futility • An intervention for which there is no pathophysiological rationale (e.g,. antibiotic for viral infection, CPR w/ cardiac rupture) Quantitative futility • An intervention that has a very small probability of benefiting the patient – most commonly used number is < 1% chance of success. Qualitative futility • A situation in which the quality of benefit an intervention will produce is exceedingly poor. Cf. Schneiderman LJ, Jecker NS 1990.

6. “Odds and ends” Odds: Where do you draw the line? Can we predict? Ends: Futile in relation to what goal? Who decides? • “The decision that certain goals are not worth pursuing is best seen as involving a conflict of values rather than a question of futility.” Caplan 1996. Truog et al 1992.

7. Case study: Mr. O • 56 yr-old • Hx of stroke, anoxic brain injury, ESRD, 2x AKA, mult. codes and resuscitations • Minimally interactive • Hospitalized 100+ days • “he would want to live as long as possible”

8. Observations Be cautious when using terminology Recognize that straightforward “futility” cases are rare Yes, medicine does have limits

9. Futility disputes Situations in which the patient or surrogate wants treatment, but the care team wants to stop.

10. Futility disputes Patient or surrogate • Distrust of prognosis • Hopeful of (miraculous) recovery • In denial • Religious/cultural • Pt’s preferences/values Care team • Harmful to pt • Wasteful of resources • Professional integrity • Reluctance • Pt’s true preferences/values

11. Responses • Legally supported futility judgment • Surrogate replacement • Communication

12. Professional integrity “The right of the patient to choose does not imply the right to demand care beyond appropriate options based on medical judgment and accepted standards of care . . .” AMA Council on Ethical and Judicial Affairs 1992.

13. Medical Futility in Texas Texas Advance Directive Act (1999) describes a process for resolving futility disputes Allows unilateral withdrawal of life support after notification and review

14. Texas “futility law” process • Physician refusal • Ethics/medical committee • meeting • 48 hr written notice • 10 day period to transfer • Opportunity to appeal for • extension • Life support may be • discontinued

15. Emilio Gonzalez (2007) • 17 mo-old • Diagnosed w/ Leigh’s disease • At 1 yr, admitted to ICU w/ viral illness • Semi-comatose, vent, N-J tube, sub-acute seizures for five months • Doctors recommend withdrawal, mom refuses • Advocacy groups, courts involved

16. Observations A process-centered approach An exercise of institutional power Has proponents and critics

17. Surrogate replacement If a surrogate is not properly fulfilling their role, their legal authority can be challenged. • Unable to reason/understand • Not respecting wishes • Best interests/conflict of interest

18. Ontario Consent and Capacity Board (CCB) Independent panel of experts Opportunity for appeal Limited to replacing surrogates Cf: Pope 2011

19. Communication Good communication can prevent, resolve futility disputes.

20. Needs of families of dying patients • To be present with the dying patient • To be helpful to the dying patient • To be informed of the dying patient’s changing condition • To understand what is being done to the patient and why • To be assured of the patient’s comfort • To be comforted • To ventilate emotions • To be assured that their decisions are/were right • To find meaning in the dying of their loved one • To be fed, hydrated, and rested Society of Critical Care Medicine, cited in Bernat 2005.

21. Communication strategies • Begin early (advance directives) • Plan regular meetings • Listen • Allow time • Promote realistic understanding of benefit • Explore meaning of “everything” • Make recommendations • Time-limited trials • Suggest concrete alternatives • Involve palliative care

22. Mrs. S: Outcomes • Court challenge not recommended • Aggressive pain management • Do not escalate treatment • Work with family

23. Conclusions

24. References AMA Council on Ethical and Judicial Affairs. Ethical Considerations in Resuscitation. JAMA 1992; 268: 2282-88 Caplan AL. Odds and Ends: Trust and the Debate over Medical Futility. Ann Intern Med 1996; 125(8):688-89. Pope TM. Legal Briefing: Futile or Non-Beneficial Treatment. Journal of Clinical Ethics 22(3):277-96. Quill T E et al. Discussing Treatment Preferences With Patients Who Want “Everything.” Ann Intern Med 2009;151:345-349 Schneiderman LJ, Jecker NS. Medical futility: its meaning and ethical implications. Ann Intern Med 1990; 112:949-54. Society of Critical Care Medicine, cited in Bernat J. Medical Futility. Neurocritical Care 2005; 2:198-205. Truog RD, Brett AS, Frader J. The Problem with Futility NEJM 1992; 326:1560-1564