Ethical Dilemmas: Medical Futility-The Texas Approach

March 6, 2008

texas.jpgCommentary by Vlad Fridman MD, PGY-3

Futility is a topic which has been debated since the beginning of modern medicine. In Hippocratic times, medical practitioners were called upon to serve three purposes: cure, comfort, and refuse to treat those who were overmastered by illness. (1) The distinction was much clearer when things like CPR, ventilators, and dialysis machines were not yet available. These and other life-sustaining/saving medical techniques have blurred the line of when a person is “overmastered by illness” making it difficult, if not impossible, for physicians to determine when treatment is medically futile. The state of Texas took on this issue by passing the Texas Advance Directives Act of 1999 under the leadership of then-governor George W. Bush. In this entry, we will discuss the meaning of futility and how Texas revolutionized the way we deal with medical, legal and ethical complexities of these decisions.

The definition of the term “futility” is actively being debated in both academics and the lay press. The American Heritage Dictionary defines it as “the quality of having no useful result”.(2) The question is how to apply this definition to medical situations. For example, does dialysis in a patient with anoxic brain injury with a potassium level of 7 have “no useful result”? The idea expressed here highlights the core question of medical futility. On one side of the debate, a procedure can be considered futile if it does not achieve its intended result. The other side defines a procedure as futile if it does not improve the overall health of the patient.(3) In the example provided, under the first definition, dialysis treatment would not be futile as it will lower the potassium level (its intended result), but under the second definition, it would be futile, as it would not improve the patient’s underlying brain injury.

An alternative approach proposed by some academics is to define futility by splitting it into quantitative and qualitative measurements. In the quantitative analysis of futility, the focus rests on figuring out the likelihood that a patient will improve with a specific treatment. In a qualitative analysis, the focus rests on analyzing the importance of the improvement provided by a treatment.(4 )Analyzing futility in this way offers an alternative method to define the issues surrounding the problem raised in the previous paragraph, but does nothing to resolve them. Not surprisingly, the debate on defining medical futility continues, and some want to say that defining medical futility is inherently “futile”.

The Texas Advance Directives Act of 1999, also known as the Texas Futile Care Law, addresses the problem of defining futility by not defining it at all. It left the determination of what treatments were futile up to the medical personnel treating individual patients. However, when disagreements arose between the medical personnel and family members, it also called for a multidisciplinary approach for dispute resolution.This process can be broken down into these simple steps:
1. If a dispute arises, an ethics consultation needs to be called, and the family must be given 48 hours to be involved in this consultation process.
2. The ethics committee must provide a written report to the family of the findings of the ethics review process.
3. If the ethics committee fails to have the parties reach an agreement, and the medical personnel want to stop medical treatments, the family has ten days to find another facility that is willing to offer the treatments and have the patient transferred there.
4. After ten days, if plans to transfer the patient have not been made and the family has not received a legal extension (which is granted only if there is a reasonable chance that a facility willing to accept the patient will be found with more time), the medical facility can withdraw care.(1)

There are important issues about this law worth noting. First, in accordance with the AMA Council on Legal and Judicial affairs, this law does not attempt to define medical futility and it involves multi-disciplinary action to resolve futility issues. (5) Second, this law prevents lengthy delays in the court system as it relies solely on medical professionals and the ethics committee to determine what treatments are medically futile. Most importantly, this law provides full legal immunity to the medical personnel involved in medical futility cases, if the process stated in the law is strictly adhered to.(5)

The Texas Advance Directives Act of 1999 has been used numerous times to address this often difficult situation in the state. While scholars, doctors, and lawyers continue to debate the specifics of medical futility and withdrawal of care in individual case by case basis, Texas provides an example of a policy that answers the question of defining medical futility by attempting to eliminate the courts and returning to the judgment and experience of physicians with the guidance of trained ethical experts.

1. Fine, RL. The Texas Advance Directives Act of 1999: Politics and Reality. HEC Forum 2001; 13(1): 59-81

2. American Heritage Dictionary of the English Language, Fourth Edition. Houghton Mifflin Company. 2006.

3. Schneiderman LJ, Jecker NS, and AR Jonsen. Medical Futility: Its Meaning and Ethical Implications. Ann Intern Med 1990; 112(12):949-54

4. Schneiderman LJ, Jecker NS, and AR Jonsen. Medical Futility: Response to Critiques. Ann Int Med 1996; 125(8):669-74

5. Fine RL. Medical Futility and the Texas Advance Directives Act of 1999. BUMC Proc 2000; 13:144-7

2 Responses to Ethical Dilemmas: Medical Futility-The Texas Approach

  1. Eric Leibert on March 27, 2008 at 3:07 pm

    Texas also leads the US in executions.

    The term futility should not be invoked.
    This is allowing doctors to use their judgments about worthwhile care.
    This might or might not be a good idea, but it isn’t about futility. It’s about value judgments.

    The burdens placed on the family are also unfair.

  2. Ed on September 10, 2009 at 7:32 pm

    I agree the burdens place on the familes are really unfair.

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