Medical futility: strike two.

In 1991, the Wanglie case in Minnesota promised a judicial opinion on medical futility but delivered only a ruling on the authority of Mrs. Wanglie's husband to act as her surrogate.[1] The recent decision of the United States Court of Appeals for the Fourth Circuit regarding Baby K, who was born in October 1992 in the Fairfax (Va.) Hospital, likewise fails to live up to its advance billing as the case that would decide whether physicians are obligated to provide life-sustaining treatment that they think is futile.[2] Baby K suffers from anencephaly, a congenital malformation in which major portions of the brain and skull are absent. Typically, infants with this condition receive only comfort care and no attempt is made to sustain their failing organs. From the outset, however, Baby K's mother insisted that her daughter receive mechanical assistance whenever she had trouble breathing. The treating physicians disagreed but were unable to find another hospital with a pediatric intensive care unit that would accept Baby K on the mother's terms. After about two months of treatment, Baby K was stable enough to be discharged to a nursing home, from whence she returned to the hospital on several occasions due to breathing difficulties. Following her second admission, the hospital sought a judicial declaration that it was not required to provide respiratory support for Baby K. Although her father and her guardian ad litem agreed with the hospital, in July 1993 federal district judge Claude M. Hilton ruled against die hospital, which then challenged the decision in the Fourth Circuit court The hospital had sought relief under the Emergency Medical Treatment and Active Labor Act of 1986 (EMTALA) and three other federal antidiscrimination statutes, as well as Virginia's common law and statutes, especially its Health Care Decisions Act (HCDA), which provides that physicians are not required "to prescribe or render medical treatment" that they determine "to be medically or ethically inappropriate."[3] On appeal, Judge William W. Wilkins, Jr., writing for himself and Judge Karen J. Williams, affirmed the lower court solely on the basis that the hospital and physicians were required by EMTALA to provide the care requested by Baby K's mother and that to the extent that Virginia's HCDA would allow physicians to forgo care they deemed inappropriate, the state statute is preempted by the federal.[4] The appellate court's application of EMTALA is straightforward if lacking in common sense. The statute requires hospitals to provide any individual who seeks emergency treatment "an appropriate medical screening examination" and, should a condition be found that if not attended to immediately could seriously jeopardize health or organ functioning, the hospital must either stabilize the medical condition or transfer the individual to another facility, if the benefits of doing so would outweigh the risks. While admitting that its failure to reverse Baby K's respiratory distress would probably harm her seriously, the hospital contended that EMTALA did not command further futile efforts at resuscitation, provided that the physicians were complying with the standard of care for anencephalic infants. The appellate judges divided on how to characterize the emergency condition in this case. The majority concluded that "it is bradypnea or apnea, not anencephaly, that is the emergency medical condition that brings Baby K to the Hospital for treatment." Thus, under an "equal treatment" interpretation of EMTALA, the hospital must provide Baby K with mechanical ventilation if that is what other patients with comparable respiratory problems get. Senior Judge James M. Sprouse dissented because he regarded "anencephaly as the relevant condition and the respiratory difficulty as one of many subsidiary conditions found in a patient with the disease." Whereas the majority saw its decision being dictated by the "plain language" of the act, Judge Sprouse concluded that Congress intended to correct the specific abuse of hospitals' "dumping" indigent or uninsured emergency patients and, "even in its weakest moments, would not have attempted to impose federal control in this sensitive, private area. …