Definitional Futility

One of the first things the Community Ethics Committee agreed on about medical futility is that the term itself is unhelpful. It’s cold, clinical and one-sided, and has a clarity problem, too. 

Most such end-of-life scenarios that descend into intractable dispute stem from disagreement over the medical judgement of futility -- but not all do. There are cases of “reverse futility,” which really aren’t about the denial of futile care at all. In these cases, medical staff somehow transcend patient or family opposition and proceed with therapy.

Futility cases typically end in the patient’s death, with court proceedings abandoned. But two cases this summer both were resolved in court, one after the death of the patient, the other in which the patient survived. Both involved, not futility, but therapies delivered against stated wishes. And both claimed malpractice.

In Jones v. Ruston Louisiana Hospital, daughters of a man who died more than two months after a major cardiac event sued the hospital for ignoring a do-not-resuscitate order. A lower court ruled that unwanted resuscitation was not medical malpractice, and did not meet a requirement for medical review. An appeals court agreed.

In DeGeronimo v. Fuchs, a New York woman in her mid-thirties sued for having received an allogenic blood transfusion against her wishes and Jehovah’s Witness faith. The woman had gone out of her way to find a doctor to see her pregnancy through and respect her faith-based wishes, but complications following childbirth included surgery and life-threatening blood loss. For reasons related to the pregnancy, none of her own blood had been collected.

The court said it was clear that the transfusion had saved the woman’s life, that her husband had signed off on the life-saving measure, and that the woman herself had nodded consent “in extremis,” though she had no memory of this afterward.

The court found “no precedent for finding medical malpractice when a blood transfusion was the proximate cause of saving a life ... There is no cause of action for ‘wrongful life’ in the state of New York.” Instead of malpractice, the court said, the plaintiff should have sued for battery.

On the legal scholar and medical futility expert Thaddeus Pope’s blog, where I learned of these cases, a commenter said: “In the Jehovah's Witness ruling, what stood out to me was the issue of capacity and the ethics of ‘re-consenting’ a patient and surrogate in extremis. ... Is a policy of required reconsideration for Jehovah’s Witness patients in life-threatening situations fair to them? If it is, then more thought should be given to the timing of these conversations. Having been involved in similar situations to this case, it is very easy to believe that both the physician's account and the plaintiff's non-recollection of the conversation were honest.”

I’d be interested to learn about other instances of “reverse futility.”