Malpractice Consult: When medical care is futile

June 20, 2008

Your obligations when a terminally ill patient insists that you "take all measures" to fight an illness.

Key Points

The Merriam Webster dictionary defines futile as "serving no useful purpose." Given this definition, what are your obligations when a terminally ill patient, or the patient's family, insists that you "take all measures" to fight an illness?

This question is answered by looking at the doctrine of informed consent, which is rooted in the premise that "every human being of adult years and sound mind has a right to determine what shall be done with his or her own body." Informed consent requires you to disclose information that will enable the patient to evaluate the nature and risks of treatments and alternative therapies. While a patient's right of self-determination is unassailable, your obligation to advise the patient of options is often not so easily defined, given the broad range of alternative treatments that may be available, including those that offer little or no likelihood of reversing a patient's course.

Certainly, citing alternatives that are likely futile provides no benefit to the patient and can result in accusations of offering false hope. What's more, providing such treatment can lead to complaints of overutilization and even quackery.

Courts have provided two standards to help physicians decide what a patient has a right to know, and what you're obliged to convey. One is a "reasonable physician standard," in which the information conveyed is based upon what a reasonable physician believes is necessary. Other jurisdictions compel a "reasonable patient standard," based upon a determination of whether a prudent patient, if apprised of all material risks, would have elected a different treatment course.

Clearly, under either standard, no reasonably prudent patient would elect a course in futility, so you have no duty to inform patients of ineffectual alternatives. However, it's very difficult to know what is futile. If treatment could prolong life for a short period of time, is that futile? If it has a one in 100 chance of yielding the desired result, is that futile? How about a one in 1,000 chance? Complicating matters, physicians often disagree on the merits of various treatments.

If a treatment is unquestionably futile-such as the use of Laetrile for cancer-there is no duty to tell patients about it. If, however, there's a small but measurable chance that a treatment may help, you should describe it to the patient. Be sure, also, to explain the risks and indicate that the treatment has little likelihood of success.

Put another way, if the treatment is truly worthless, and that conclusion is not subject to serious debate, disclosure need not be provided. If, on the other hand, there is some possible benefit, no matter how small, then the treatment is outside the definition of "futility" and the patient should be informed.

In deciding what to disclose, keep up with current trends. When in doubt, seek advice from consultants, hospital ethics committees, and others on how to develop appropriate informed consent.

The author is a health law attorney with Kern Augustine Conroy & Schoppman in Bridgewater, NJ, Lake Success, NY, and Philadelphia. He can be reached by e-mail at kern@drlaw.com. This department deals with questions on common professional liability issues. We cannot, however, offer specific legal advice. If you have a general question or a topic you'd like to see covered here, please send it to Malpractice Consult, Medical Economics, 123 Tice Blvd., Woodcliff Lake, NJ 07677-7664. You may also fax your question to us at 201-690-5420 or e-mail it to memalp@advanstar.com
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