Rationing Healthcare or the Right to Die?

The ongoing debate on healthcare reform took an interesting turn over the past summer as focus shifted, at least for a short period of time, to the question of when to pull the plug on Grandma. The debate ended, at least for now, as politicians all ducked for cover claiming that government would never pull Grandma’s plug.

Of course, sooner or later, absent nature’s intervention, someone needs to pull the plug on Grandma. The question is who, when, and under what circumstances. Since this question first hit the courts, more than 30 years ago, our courts have consistently held that this is a question that should first be answered by the patient, and if the patient is not competent, by the patient’s designee or closest family member. New York State has just expanded its laws to also allow close friends to make these decisions. But, what happens when the closest family member is too grief-stricken to make a rational decision—or worse, has a financial interest in the decision? What happens when that family member demands unreasonable treatment? And who is to decide what constitutes unreasonable treatment?

These are questions that an appellate court in New Jersey may soon answer. The matter currently before the court involves a 73-year-old gentleman who suffered an anoxic injury that resulted in him falling into a moribund, permanent vegetative state. He became ventilator-dependent, feeding tube–dependent, and his renal function deteriorated into renal failure, requiring dialysis several times weekly.

His body deteriorated, and he developed severe decubitis ulcers on his body, resulting in deep infections extending into the bone. The only thing prolonging biological life was the medical care rendered. The patient’s treating doctors sought to discontinue dialysis, but the family objected, so a court order was sought allowing the doctors to discontinue treatment. At a hearing before the trial court, the patient’s doctors all testified that continued treatment was both futile and contrary to accepted standards of care. In rebuttal, the family produced a physician expert who testified, in essence, that the standard of care required physicians to provide any care requested by the family. The trial court concluded that because the family desired all heroic measures to be implemented, there were no circumstances that would justify withholding inappropriate treatments.

Complicating the case is a potential underlying malpractice suit against the hospital and its physicians for allegedly negligently causing the underlying anoxic injury. As such, the longer the patient survived, the greater the potential damages and the more money the patient’s heirs, who were driving the decision to keep the patient alive, are likely to receive.

Further complicating the matter is the American Medical Association’s (AMA) own Code of Medical Ethics, which holds that the concept of futility cannot be meaningfully defined. If one subscribes to this position, termination of life decisions cannot be based upon this concept, and the hospital’s argument that further care would be futile would have to be rejected.

So, what do we do when the patient is not able to make a decision, the family has a significant conflict of interest, and the AMA says that we cannot define futility? If we cannot define futility, how do we determine what treatment is reasonable? Do we consider likelihood of recovery, quality of life? If so, who makes the decision, and what are the criteria? Dare we ask, can we also consider cost of treatment?

Since it is unlikely that our politicians will muster the courage to confront these issues, it is likely that these decisions will ultimately fall, on a case-by-case basis, to the best judgment of the physician community. Given that reality, physicians need to understand their role in this sometimes difficult decision-making process.

Fortunately the AMA’s Code of Medical Ethics (which finds that futility cannot be defined) nonetheless gives us some important guidance on how to decide when to pull Grandma’s plug. According to the AMA:

“Physicians are not ethically obligated to deliver care that, in their best professional judgment, will not have a reasonable chance of benefiting their patients. Patients should not be given treatments simply because they demand them.”

So, if a treatment does not have a reasonable chance of benefiting a patient, it shouldn’t be given. Now, all we need to do is define reasonable chance. Because the AMA tells us that we can’t use the concept of futility to define reasonable chance, we need to look elsewhere. How about a statistical test? If there is a chance in ten, is it reasonable to employ the treatment? How about a chance in a hundred? A thousand? A million? And who is to determine the odds? Or, how about using a risk-benefit analysis? What’s the risk of treatment versus the potential benefit? If a patient is otherwise terminal, the risks are relatively small, unless the treatment itself is painful or will prolong suffering. However, the benefit, if the treatment works, is absolute—the patient lives! Therefore, using this simplistic analysis, nearly every patient is entitled to almost every treatment alternative. While simplistic, this hardly provides a satisfactory resolution.

The notion that a patient or family member can require any type of care has long been rejected. No one would argue that a physician is obligated to cryogenically freeze a dying patient, hoping that at some future time technology will allow him to be thawed, his underlying condition reversed, and returned to life. Nor can a patient demand experimental treatment, outside of approved protocols. Therefore, though we avoid the words, medicine is already “rationing healthcare.” But, how does that happen?

It happens because physicians are always guided by recognized standards of practice and ethics. The AMA outlines this in another of its ethical proscriptions:

“Denial of treatment should be justified by reliance on openly stated ethical principles and acceptable standards of care….”

While recognized standards of care are not always clear-cut, they usually provide relatively clear parameters and are based upon customary practices, authoritative literature, and a fair consensus of opinion.

Moreover, in the context of end-of-life decisions, we can be assured that where physicians disagree as to what appropriate standards of care allow, the family can resolve that disagreement by choosing those physicians who are willing to accede to their wishes. Only where there is uniformity of opinion that the treatment sought deviates from accepted standards of practice will the wishes of the family remain unfulfilled.

Fortunately, the medical community, using recognized standards of practice, has developed a method to limit treatment options to those that are reasonable, and to work with patients and their families to choose among those options. While not infallible, this system works far better than any that government or the courts are likely to impose.

Yet these decisions rarely include a cost-benefit analysis, and many would argue against one. However, if society is going to leave it to physicians to continue to make these decisions, it is essential that the medical community at least take into consideration the cost of care in establishing and promoting recognized standards of practice. As difficult as the questions are, if physicians do not lead in this effort, government, courts, and insurance companies will. No profession has a greater stake in assuring that healthcare dollars are judiciously used than the physician community. It should not abdicate its role simply because the issue is too difficult.

Steven I. Kern is a principal in the healthcare law firm of Kern Augustine Conroy & Schoppmann, P.C., with offices in New Jersey, New York, and Pennsylvania, and affiliates in Florida and Illinois. He is a nationally recognized expert on healthcare law who defends physicians throughout the United States. Mr. Kern is also an Editorial Consultant to Medical Economics and ModernMedicine.com. He is a former New Jersey Deputy Attorney General assigned to the State Board of Medical Examiners.

I encourage our readers to read this article, digest its contents, and respond with their thoughts to mschulz@hmpcommunications.com. --Fred Feinsod, MD Ethics Department Editor