Wednesday, February 6th, 2013
Presenter: Dr. David Kell
Moderator: Dr. John Miller
For those of you who are not already familiar with Dr. Kelly, a brief resume’ of some of his accomplishments are as follows: Dr. Kelly is the author five books, the latest of which is
Medical Care at the End of Life, as well as numerous articles on ethics and medical ethics in various professional journals. Dr. Kelly is well known as a speaker on medical ethical issues. He now lives on Hilton Head Island in South Carolina and is working on a second edition of his textbook, Contemporary Catholic Health Care Ethics, for Georgetown University Press. He retired in 2006, after 25 years at Duquesne University in Pittsburgh, PA, where he was appointed Professor Emeritus. David was the Founding Director of the Duquesne University Health Care Ethics Center.
The following is a summary of Dr. Kelly’s presentation:
“Medical Futility” is a term sometimes used to characterize treatment which is thought to be useless for certain patients. Usually, but not always, these patients are terminally ill or permanently unconscious. Usually, but not always, the treatment is expensive. The idea is that the treatment should not be used even if the patient or the family insist on it. If a treatment is indeed MEDICALLY futile, then doctors get to decide. They are the medical experts. The problem is how to determine when a treatment is indeed medically futile, and there has been a great deal of dispute about that.
Before 1970 or so, physicians usually made these decisions, and they often insisted that “aggressive” life-sustaining treatment be continued. They assumed that patients and patients’ families would want to keep patients alive. But starting in the 1970’s some families and some patients decided that even if a treatment kept someone alive, the result was not worth it. And so a number of court cases decided that patients had the right to refuse treatment. Living wills and powers of attorney soon followed, and more and more these decisions were made by patients and families and not by physicians.
All of the early cases were of this type; doctors and hospitals wanted to continue but patients or their families wanted to stop.
But by the late 1980’s this changed. Now most of the cases of conflict were when families wanted to continue and doctors wanted to stop. One reason for this was because it had by then become clear to physicians and hospitals that some of the procedures they though would work out well were not in fact truly helping people. Perhaps they could start a heart after it stopped, but the patient might not ever recover. Feeding tubes for permanently unconscious persons seemed unhelpful even if they kept someone biologically alive. Another reason for the change was the change in payment from retrospective payment schemes (fee for service, payment for whatever was done) to prospective payment schemes (diagnosis related groupings, capitation schemes, payment by diagnosis or monthly payment per patient regardless of what was actually done).
In any case families often asked for treatment that doctors did not want to provide. So physicians and some ethicists started to claim that these treatments were medically futile and that doctors had the right to stop them even if the patients wanted them. They argued that medical futility should be expanded to include these types of treatment.
Medical futility means (or should mean) that a procedure is medically useless. It is contrary to the standard of care. Not only may doctors refuse it; they must refuse it. No-one should provide dialysis for a head cold. It does no good. It is MEDICALLY futile. Cost is not the issue here. Physicians have the expertise to deny any MEDICALLY futile treatment.
But what kinds of treatment should we be able to call medically futile? And here is the heart of the matter.
Four criteria have been proposed for medical futility. The first two are easy enough and almost everyone accepts them. The second two cause the problems.
First, a treatment that does not do what it is supposed to do in the immediate physiological sense is medically futile. CPR does not start the heart. Chemotherapy does not control the cancer. Blood pressure medications do no good at all. Stop. Medically futile. “Dialysis for a head cold”.
Second, a treatment may work in the sense that it does what it is intended to do, but this is irrelevant to the life of a dying patient. Don’t replace a knee for someone who is going to be dead in a few days or weeks and will never leave the bed.
Third, what about if a treatment keeps someone alive but the quality of life is poor? What about feeding the permanently unconscious? Here it seems wrong to call this a purely medical decision. Religion, ethics, politics, and so on come into play. The family gets to decide.
Fourth, what about a procedure that has a very small chance of success? Here again the family or the patient makes the choice.
Thus many procedures that perhaps most of us would not want for ourselves and think are too aggressive or even stupid are sometimes done. In other countries these would not be paid for by national health insurance. But in the United States, with its dysfunctional health care insurance system, they often are paid for. In fact Medicare requires by law that all marginally beneficial treatment be paid for even if it is far more expensive than other treatments that are almost as good.
And when the Affordable Care Act (called Obamacare by Republican opponents) tried to pay doctors to talk to patients about what care they would want if they were terminally ill, Republicans called it “death panels” and the idea was scrapped.
While it would certainly be ethical for Medicare and insurance companies to refuse to pay for overly aggressive procedures like these, it does not seem right to allow doctors to deny them on the basis of MEDICAL futility. The decisions involve value choices, and these are rightly made by patients and their surrogates, usually their families.