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Truog expresses concerns about financial motivations, communication, and fairness. I agree that expense is an "ethically legitimate reason" to limit futile treatment, but how might society do this? Some dying patients receive three to six times as much treatment as others without having better outcomes.3 Many physicians are trying to be more thoughtful about end-of-life resource expenditures, but it is difficult to steward resources ethically when families demand unlimited treatment for dying patients. Texas law encourages cultural change toward the communitarian value that no one has unlimited claims on the community; the resulting savings might not be "trivial."
Suffering without a benefit for the patient is also an ethically legitimate reason to stop treatment, but comatose patients do not suffer, so why not maintain ventilator assistance indefinitely, and when physiologically needed, add a pacemaker, dialysis, or a left ventricular assist device? Such questions are usually resolved collaboratively by the treatment team and the family, but when they cannot be settled, our experience shows that multidisciplinary ethics consultation helps families accept treatment limitation in 86% of cases.4 Multi-institutional Texas data show that about 93% of futility disputes were resolved without the issuance of a 10-day-notice letter.5 This is evidence not that ethics committees are biased or that the process is "too easy" but rather that further dialogue alone works. Truog sees ethics committees as "judge and jury," but they are no more so than an organ-transplant review committee. Families may still pursue court intervention, but judges, not juries, hear these cases. Is a single judge, without medical, cultural, or spiritual care expertise, wiser than a multidisciplinary committee?
Finally, Truog questions the fairness of the Texas law. These disputes occur not between physicians and patients but between physicians and families. Some families are trapped in normal psychological responses to bad news, and others are divided. Some have dubious motives, and some engage in magical thinking. Ultimately, physicians must choose between the easy path of acceding to the family's medically inappropriate request and the hard path of undertaking further committee review and possible unilateral action. We should respect the family's preference when possible, but we should never use a patient as a means to the family's end if the patient does not benefit.
This problem will not go away, but after 8 years of practice, the Texas process remains the best approach when family requests conflict with professional obligations at the end of life.
Robert L. Fine, M.D.
Baylor Health Care System
Dallas, TX 75204
robertf{at}baylorhealth.edu
References
Although it is true that the demands of some families are motivated by psychopathology or magical thinking, in some cases the dispute arises from a genuine disagreement about fundamental values. The problem with the Texas legislation is that it empowers the hospital ethics committee — mostly hospital employees — to adjudicate between the values of their fellow clinicians and those of the family. Fine invokes the importance of "communitarian" values, but under the Texas approach, those values are defined solely by the medical community itself. The law does not even allow appeal of the determination to a judge; a judge can grant extensions to allow for more time to find an alternative provider but cannot question the determination itself. The law therefore fails to provide medical patients with basic due-process protections that are taken for granted in other settings.
Fine cites data showing that application of the law results in families' ultimately accepting treatment limitations in the great majority of cases. These data show either that, as Fine suggests, "further dialogue alone works" — in which case, the law is not needed — or that when told that the law will be used to limit treatments regardless of the families' preferences, families choose to give in and accept the inevitable rather than engage in a legal battle with the hospital.
Fine implies that the Texas law is most useful when families are making decisions that are not in the best interests of patients. This may be true, but then the remedy should be to use existing pathways to challenge the legitimacy of the surrogate to make these decisions and to seek appointment of another decision maker. Using a law about medical futility to solve problems about surrogate decision making reflects a misdirected and confused response to the issues at stake.
Fine and others have made a well-intentioned effort to make progress in the futility debate, but the Texas law is, in my opinion, a step in the wrong direction.
Robert D. Truog, M.D.
Harvard Medical School
Boston, MA 02115
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