The debate is over whether an intervention, however hopeless and ineffective, can ever be characterized as completely futile. Moreover, without absolute certainty, will this suffice to override a patient’s insistence on having that treatment?
Others have countered that absoluteness is an unrealistic standard, and that inhumane suffering and costs are relevant factors to ponder. The AMA has clearly stated that "physicians are not ethically obligated to deliver care that, in their best professional judgment, will not have a reasonable chance of benefiting their patients," and "patients should not be given treatments simply because they demand them."8
One legal consequence of discontinuing medical treatment that ends with a patient’s demise is the specter of criminal prosecution, although charges of homicide are unlikely to prevail.
In a landmark California case, Barber v. Superior Court of Los Angeles County,9 the court recognized that "a physician is authorized under the standards of medical practice to discontinue a form of therapy which in his medical judgment is useless. ... If the treating physicians have determined that continued use of a respirator is useless, then they may decide to discontinue it without fear of civil or criminal liability."
In Kansas v. Naramore,10 the state appeals court reversed and entered a verdict of acquittal despite a jury finding Dr. Naramore guilty over his provision of palliative treatment. The court noted that the burden of proof to establish the criminal guilt of a physician for acts arising out of providing medical treatment is higher than that necessary to find medical malpractice or to impose medical licensure discipline. It held that "with no direct evidence of criminal intent, it is highly disturbing that testimony by such an impressive array of apparently objective medical experts, who found the defendant’s actions to be not only noncriminal, but medically appropriate, can be dismissed as ‘unbelievable’ and not even capable of generating reasonable doubt."
Notwithstanding widely accepted ethical notions of medical futility, there are state and federal statutes touching on DNR orders that warrant careful attention.
For example, New York Public Health Law Section 2962, paragraph 1, states: "Every person admitted to a hospital shall be presumed to consent to the administration of cardiopulmonary resuscitation in the event of cardiac or respiratory arrest, unless there is consent to the issuance of an order not to resuscitate as provided in this article." This raises the question as to whether it is ever legally permissible to enter a unilateral DNR order against the wishes of the patient.
On the other hand, Hawaii Revised Statutes 327E-13(d) notes: "This chapter shall not authorize or require a health care provider or institution to provide health care contrary to generally accepted health care standards." This has been interpreted as allowing the prevailing standard of care to serve as the yardstick of propriety.
Finally, the federal "antidumping" law governing emergency treatment in hospitals, widely known as EMTALA (Emergency Medical Treatment & Labor Act), requires all emergency departments to provide treatment necessary to prevent the material deterioration of the individual’s condition. This would always include the use of CPR unless specifically rejected by the patient or surrogate, because the law does not contain a "standard of care" or futility exception.
References
1. Capron, A.M., Abandoning a Waning Life. Hastings Center Report 1995;25:24-6.
2. In re the conservatorship of Helga M. Wanglie, No. PX-91-283, District Probate Division, 4th Judicial District of the County of Hennepin, State of Minnesota.
3. In the Matter of Baby "K", 16 F.3d F. Supp. 590 (E.D. VA 1993). WL 38674 (4th Cir. 1994).
4. In re K.I., 735 A.2d 448 (D.C. Ct. App. 1999).
5. Code of Ethics of the AMA, section 2.22, 2012-2013 edition.
7. Ann. Int. Med. 1990;112:949-54.
8. Code of Ethics of the AMA, section 2.035, 2012-2013 edition.
9. Barber v. Superior Court of Los Angeles County, 147 Cal. App. 3d 1006 (1983).
10. Kansas v. Naramore, 965 P.2d 211 (Kan. 1998).
Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at siang@hawaii.edu.