The law's impact on the resolution of end-of-life conflicts in the intensive care unit.

To the Editor: I read with great interest the paper by Luce (1) concerning the history of endof-life treatment disputes in the intensive care unit. I would like to make two comments. Because the law has a significant impact on the resolution of these disputes, it is important to describe it as clearly and precisely as possible. In an otherwise insightful and useful historical review, Luce is insufficiently accurate on two points. He makes one overstatement and one understatement. The overstatement is: Luce writes that “[g]iven the results of cases like Baby K in Virginia, judges [elsewhere] would probably support the families. [who] seek a court order to prevent the unilateral withdrawal of life support. ” Admittedly, Baby K is a famous and recognizable case. However, it is almost entirely irrelevant to conflict resolution over endof-life issues in intensive care units. In Baby K, the court ordered the hospital to treat an anencephalic infant under the Emergency Medical Treatment and Active Labor Act (EMTALA), because the infant’s respiratory distress was an “emergency medical condition” that needed to be stabilized. However, EMTALA applied in that case only because the infant had just arrived at the hospital from a nursing home. In contrast, EMTALA categorically does not apply to inpatients (except perhaps in Kentucky, Michigan, Ohio, and Tennessee) (2). Because intensive care unit patients are inpatients, EMTALA is not germane to end-of-life issues in intensive care units. Apart from his reference to EMTALA, Luce is correct that judges may grant families temporary injunctions in these cases. However, almost always, judges do so only as a temporary stop-gap measure to keep the patient alive while evidence is gathered. Rarely, after a full hearing on the merits do judges grant permanent injunctive relief. The New Jersey Appellate Division’s recent decision upholding such an order is a notable exception to this general trend (3). Still, in many cases, a temporary stop-gap is all the family is requesting, because the patient will likely die during that time while still on life support. The understatement is: Luce writes that “the only test of physician behavior in not acceding to patient and family requests for. treatment is that of medical malpractice. ” In fact, unilaterally refusing life-sustaining treatment risks liability not only under malpractice, but also under other legal doctrines (4). For example, although establishing compliance with the standard of care is a valid defense in medical malpractice actions, it is not sufficient in actions brought under other theories such as EMTALA or common law battery. Indeed, in most of the lawsuits in which physicians have been found liable for unilateral refusal, the underlying legal theory was intentional infliction of emotional distress, somtimes called outrage. Under intentional infliction of emotional distress, the physician is not charged with deviating from the standard of care in removing treatment without consent; he or she is charged with doing so in a secretive or insensitive manner (5). To be sure, physicians have won litigated futility disputes. But the source of the legal risk ranges from malpractice to intentional torts to criminal and disciplinary sanctions. The author has not disclosed any potential conflicts of interest.