Futility in the intensive care unit: hard cases make bad law.

As Dr. John Luce’s historical review article (1) demonstrates, the legal rules governing provision of life-prolonging interventions have shifted during the past 40 years. The new rules, which are now widely accepted, clearly permit patients with decisional capacity or their legal surrogate decision-makers to decline interventions, even if those interventions are required to sustain life. However, when there is disagreement between clinicians and family surrogates about whether to withhold or withdraw lifesustaining treatment, the legal rules are much less clear and there is considerable dispute about them. The dispute often centers on the issue of using “medical futility” as the basis for unilateral decisions by clinicians to override family surrogates’ demands for treatment. Malpractice lawsuits have been brought in a few jurisdictions against clinicians who have unilaterally withheld life support on the basis of futility, but, as highlighted by Luce, judges or juries have generally upheld the clinicians’ actions as based on acceptable professional practice. Furthermore, in one state—Texas—the legislature has enacted a procedural approach by which family demands for treatment can be reviewed by the hospital ethics committee, which can provide a ruling that permits medical professionals to unilaterally withdraw life support and, in the process, obtain protection against subsequent legal liability (2, 3). These protections for unilateral clinician decision-making, however, have been subject to considerable criticism on the grounds that “futility” does not have clearly accepted scientific definition and that disputes about prolongation of life inescapably involve value judgments in a situation in which patients’ (or their families’) values should generally prevail (4– 6). At the moment, the proponents and opponents of futility as a basis for unilateral clinician decision-making remain at loggerheads, and the dispute seems likely to persist. In our judgment, this dispute diverts attention from the important issues. First, as Luce points out, persistent disagreement between clinicians and family surrogates about withholding or withdrawing treatment is quite rare. The majority of conflicts or disputes about withholding or withdrawing life support can be resolved through deliberate communication and negotiation. We should devise programs to train clinicians in the skills needed to resolve the majority of these cases and not focus on the rare intractable ones. Second, these rare cases of persistent disagreement are often “worstcase scenarios,” and any attempt to develop rules designed to settle these extreme cases could have an unfavorable effect on the resolution of more common and less intractable disputes. This is what Justice Oliver Wendell Holmes meant when he classically observed, “hard cases make bad law” (7). Finally, the concept of “futility” should be incorporated into the process of careful, self-critical deliberation by clinicians as a way to ensure accurate prognostication and communication of prognosis among the clinical team and to patients and families. Futility should be considered by clinicians as an important part of careful prognostication, independent from its use for unilateral decision-making (8). In this way, clinicians can make an honest appraisal of the chances for success. During this appraisal, the futility of a specific treatment is an important but, because of inaccuracies in our ability to prognosticate, rare determination in the intensive care unit. Regarding the issue of unilateral decision-making, a fundamental premise for rule-making should be that the inability of clinicians and family to reach agreement in itself undermines the welfare and sense of integrity of both sides. From this premise, it follows that for those few cases in which disagreement does persist, the best approach would be to use a system that encourages skilled and deliberate communication in an effort to build trust, develop shared understanding, and ultimately achieve agreement. It is important and appropriate that in this mutually engaged pursuit, clinicians use their knowledge and resources to develop a supported prognosis, articulate their degree of certainty in the prognosis, and communicate this prognosis and degree of certainty to the family. Clinicians should communicate their professional judgments about the ways that the treatment that they conclude to be futile does disservice to the patient. However, it is equally important that the clinicians remain visibly open to the possibility of contrary judgments by the family on behalf of the patient—to the possibility, for example, that odds of one chance in a thousand of a favorable outcome might be consistent with the patient’s values, even though such unfavorable odds are viewed as futile to most or even all medical professionals. This possibility can only emerge in a process that engages both clinicians and families in an indepth exploration of different perspectives, enhanced understanding of opposing viewpoints, and mediation of the opposing sides. Through this process, it may in some cases become clear to the clinicians that family members cannot bring themselves to make a clear-cut decision to withhold or withdraw life-sustaining treatment, even though the family believes it is the right decision. The family’s reluctance may arise from religious views, cultural values, or interpersonal tensions. Clinicians should be alert to this possibility and devise ways to help the family come to a decision without being burdened by fully acknowledged responsibility for it. In this circumstance, “informed assent” may be an appropriate approach; the clinician can explain the basis for his or her professional judgment about the futility of continued interventions and indicate his or her own willingness to take responsibility for decisions to withhold or with*See also p. 1623.