Chapter 5.C: Futility

Causey

Sonya Causey was a former employee of St. Francis Medical Center who suffered complications during childbirth that left her quadriplegic.

A California case employed similar reasoning. Elizabeth Alexander suffered from end-stage pancreatic cancer. Although she had requested all measures to prolong life in her advance directive, and her POLST form reflected her wishes, doctors wrote a DNR order for her on grounds of futility, and efforts were not made to resuscitate her when her heart stopped beating. The court of appeals rejected liability, citing the statutory provision that

A health care provider or health care institution may decline to comply with an individual health care instruction or health care decision that requires medically ineffective health care or health care contrary to generally accepted health care standards applicable to the health care provider or institution. [Cal. Prob. Code § 4735]

Alexander v. Scripps Memorial Hospital, 232 Cal.Rptr.3d 733 (Ct. App. 2018).

Note 7

In 2020, a state court of appeals found procedural due process defects in the Texas futility statute. In a case involving an infant with severe cardiopulmonary problems and multiple unsuccessful heart surgeries, the court held that the statutory process denied the child's mother adequate notice and a meaningful opportunity to be heard during the hospital committee's review process. The court observed that greater due process protections are provided in proceedings involving the involuntary termination of parental rights and in proceedings of a medical peer review committee. The court also observed that "the 'medically inappropriate' standard employed . . . to authorize the unilateral withdrawal of life-sustaining treatment from an unwilling terminally ill patient, even when informed by reasonable medical judgment, fails to articulate an objective standard by which to decide that the patient's natural death is either her chosen or best treatment option." T.L. v. Cook Children's Medical Center, 607 S.W.3d 9 (Tex. Ct. App. 2020).

In June 2023, the Texas legislature revised the relevant statutory provisions, Tex. Health & Safety Code § 166.046. The amendments

  1. limit the application of the provisions to patients lacking decision-making capacity,
  2. expand the procedural safeguards (e.g., 7 instead of 2 days notice of the ethics committee meeting to the surrogate),
  3. establish standards for the ethics committee to employ when deciding whether treatment would be medical inappropriate, and
  4. extend from 10 to 25 days the length of time before which life-sustaining treatment may be withdrawn.

The Virginia legislature amended the state's futility statute in 2018 to make clear that physicians can discontinue medically inappropriate care. According to the current version of the statute, physicians must give family members 14 days to arrange for transfer of the patient, and

If, at the end of the 14-day period, the conflict remains unresolved despite compliance with the hospital's written policy . . . 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 . . . 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 subject to the right of court review by any party. . . .

Va. Code Ann. § 54.1-2990(B)

Brain Death

Note 6

For an analysis concluding that Jahi McMath was incorrectly diagnosed as dead by brain criteria, see Shewmon and Salamon, "The Extraordinary Case of Jahi McMath," 64 Perspectives in Biology and Medicine 457 (2021).