¹ Many scholars venturing into the ethical morass surrounding medical futility begin by attempting to define the term medically futile treatment. Such first steps seem sensible because one’s understanding of fundamental terms will necessarily shape the analysis to follow. That is, if one defines medical futility as a medical conclusion that a therapy is of no value to a patient, then one is likely to conclude that when a physician believes that treatment will provide no medical benefit, he or she has no duty to offer or provide such care to a patient. See, e.g., Miles, Steven H., Medical Futility, 20 LAW MED. ' HEALTH CARE 310 (1992)Google Scholar; Schneiderman, Lawrence J. et al., Medical Futility: Its Meaning and Ethical Implications, 112 ANNALS INTERNAL MED. 949 (1990)Google Scholar. Alternatively, if medical futility is defined in terms of patient perceptions about goals and benefits, then any treatment that achieves a desired result, such as sustaining biologic existence, could not be considered medically futile. See, e.g., Veatch, Robert M. ' Spicer, Carol Mason, Medically Futile Care: The Role of the Physician in Setting Limits, 18 AM. J.L. ' MED. 15 (1992)Google Scholar; Lantos, John et al., The Illusions of Futility in Clinical Practice, 87 AM. J. MED. 81 (1989)Google Scholar. Clearly, the heart of the debate surrounding medical futility lies in its definition, a recognition that prompted one commentator to observe that the futility debate is itself largely futile. E. Haavi Morreim, Profoundly Diminished Life: The Casualties of Coercion, HASTINGS CENTER REP., Jan.-Feb. 1994, at 33.

² See, e.g., Blackhall, Leslie J., Must We Always Use CPR?, 317 NEW ENO. J. MED. 1281 (1987)Google Scholar; Morreim, supra note 1, at 33; Schneiderman et al., supra note 1, at 949; Spielman, Bethany, Collective Decisions About Medical Futility, 22 J.L. MED. ' ETHICS 152 (1994)Google Scholar; TomTomlinson, ' Brody, Howard, Futility and the Ethics of Resuscitation, 264 JAMA 1276 (1990)Google Scholar; Veatch ' Spicer, supra note 1, at 29-30.

³ See infra text accompanying notes 14-37.

⁴ See, e.g., Miles, supra note 1, at 310.

⁵ 16 F.3d 590 (4th Cir.), cert. denied, 115 S. Ct. 91 (1994).

⁶ 42 U.S.C. § 1395dd (1988 ' Supp. V 1993).

⁷ In re Baby K, 16 F.3d at 593-94. For a fuller discussion of the decision in Baby K, see infra text accompanying notes 24-46.

⁸ The nominal defendant in this case was Ms. H, the infant’s mother. Baby K’s guardian ad litem and her father, Mr. K, joined in the hospital’s request for a declaration that the hospital was not required to provide respiratory support or other aggressive treatments to the infant. At trial, the district court issued a finding of fact that Ms. H opposed discontinuation of treatment because she “has a firm Christian faith that all life should be protected” and that “God, and not other humans, should decide the moment of her daughter’s death.” In re Baby K, 832 F. Supp. 1022, 1026 (E.D. Va. 1993). On appeal, Ms. H’s religious beliefs were not explicitly mentioned in the court’s opinion.

⁹ Linda Greenhouse, Court Order to Treat Baby with Partial Brain Prompts Debate on Costs and Ethics, N.Y. TIMES, Feb. 20, 1994, § 1, at 20.

¹⁰ See Morreim, supra note 1, at 33. Professor Morreim argues that disputes about whether physicians ethically can, or should, unilaterally refuse to provide treatment “revolves around fundamentally irresolvable moral conflicts concerning our most deeply held beliefs about the value of life.” Id. at 33. Thus, a patient who believes that all human life is precious and a doctor who advocates that aggressive care should not be imposed on a profoundly and irreversibly ill patient, will never settle on a mutually agreeable definition of medical futility.

¹¹ In re Baby K, 16 F.3d at 596. Despite this recognition, the court said that it could not ignore the plain meaning of EMTALA because “to do so would transcend our judicial function.” Id. (citations omitted).

¹² In an earlier article, I defined a physician’s professional conscience as that aspect of a doctor’s personal and professional makeup which enables him or her to act as an independent moral agent with the capacity to express objections to patient choices, whether those objections derive from medical, moral, or ethical foundations. See Daar, Judith F., A Clash at the Bedside: Patient Autonomy v. A Physician’s Professional Conscience, 44 HASTINGS L.J. 1241, 1245 (1993)Google Scholar.

¹³ See id. at 1259-80 (summarizing judicial and legislative schemes to protect autonomy in patient decision making).

¹⁴ See In re Jane Doe, 418 S.E.2d 3 (Ga. 1992) (hospital enjoined from de-escalating medical treatment it considered “medical abuse” of a thirteen-year-old girl suffering from irreversible, degenerative neurological disorder when parents disagreed about child’s course of treatment); In re Conservatorship of Wanglie, No. PX-91-283 (D. Minn. P. Div. July 1, 1991) (husband appointed conservator of permanently unconscious patient over physician objections);In re Baby K, 16F.3d 590(4th Cir.), cert. denied, 115 S. Ct. 91 (1994); John J. Paris et al., Physicians’ Refusal of Requested Treatment; The Case of Baby L, 322 NEW ENO. J. MED. 1012 (1990) (describing case of Baby L, a two-year-old girl who was blind, deaf, quadriplegic, respirator-dependent; doctors sought unsuccessfully to withhold aggressive treatment over objection of mother); Benjamin Weiser, A Question of Letting Go; Child’s Trauma Drives Doctors to Reexamine Ethical Role, WASH. POST, July 14, 1991, at A1 (reporting that court declined to appoint independent guardian for a severely brain damaged two-month-old boy when his mother was demanding “futile” treatment). Note, however, the recent case of Gilgunn v. Massachusetts Gen. Hosp., No. 92-4820 (Mass. Sup. Ct. Apr. 21, 1995), in which the jury found the hospital and doctors were not negligent in issuing a “do-not-resuscitate” order for a comatose, irreversibly brain damaged woman over the objection of the patient’s daughter. The jury in Gilgunn also found that CPR was futile in Mrs. Gilgunn’s case. See Gina Kolata, Court Ruling Limits Rights of Patients, N.Y. TIMES, Apr. 22, 1995 at 6 (describing Gilgunn as case in which court ruled that doctors need not provide care they deem futile); Alexander M. Capron, Abandoning a Waning Life, HASTINGS CENTER REP., July-Aug. 1995, at 24, 26 (urging public debate in light of Gilgunn about whether physicians should have power to withhold treatment based on their assessment of the worth of patient’s outcome).

¹⁵ No. PX-91-283 (D. Minn. P. Div. July 1, 1991).

¹⁶ Id. at 8-10. The court described Mrs. Wanglie’s condition as follows: “Since readmission to HCMC on May 31, 1990, Mrs. Wanglie has been respirator dependent (via tracheotomy tube); has been given nourishment only by intubation; has been on a Kinn-Air bed, which shifts her position and weight periodically because she cannot move herself, in order to prevent decubitus ulcers; and has received repeated courses of antibiotics for recurrent lung infections.” Id. at 9.

¹⁷ This physician sentiment was conveyed via numerous doctor-family conferences as well as in a letter sent to Mr. Wanglie from the medical director of the Hennepin County Medical Center. Specifically, the letter declared that the health care team responsible for Mrs. Wanglie’s care felt that continued use of life-sustaining treatment was “inappropriate medical treatment” that was “no longer serving the patient’s personal medical interest.” See Alexander Capron, In re Helga Wanglie, HASTINGS CENTER REP., Sept.- Oct. 1991, at 26.

¹⁸ See Steven H. Miles, Interpersonal Issues in the Wanglie Case, 2 KENNEDY INST. ETHICS J. 61 (1992). In his personal description of the Wanglie case, Dr. Miles reports that the hospital made offers to transfer Mrs. Wanglie to an equivalent facility on three occasions. All offers were refused by the Wanglie family who maintained that the hospital had a duty to provide whatever care the insurer would pay for. In March 1991, a week before the trial was originally scheduled to begin, the family asked for time to transfer Mrs. Wanglie. Despite intensive efforts by the hospital to locate a provider, none could be found that was willing to accept Mrs. Wanglie as a patient. Id. at 69 n.1.

¹⁹ Although the case was widely perceived and reported as one in which the hospital was seeking permission to terminate life-sustaining treatment over the objections of a patient’s family, the petition merely asked the court to decide who should direct the course of Helga Wanglie’s medical care—her husband or someone else. See Daar, supra note 12, at 1242-43.

²⁰ In re Conservatorship of Wanglie, No. PX-91-283, at 13-14 (D.Minn. P. Div. July 1, 1991). Helga Wanglie died of “natural causes” on July 4, 1991, three days after the court appointed her husband guardian of her person. See Helga Wanglie, Woman in Right-to-Life Battle, CHI. TRIB., July 6, 1991, at C13.

²¹ In re Wanglie, No. PX-91-283, at 12.

²² Id. at 14.

²³ By “practical outcome,” I am referring to the realities of patient transfer, both in this case and in most others in which patients and physicians clash over the provision or nonprovision of care. The reality is, at least according to published court opinions, that equivalent facilities are unwilling to accept for transfer patients that have become “ethical hot potatoes” at their treatment facility. See George J. Annas, Transferring the Ethical Hot Potato, HASTINGS CENTER REP., Feb. 1987, at 20-21. For a fuller discussion of the realities of patient transfer, see Daar, supra note 12, at 1269-71.

²⁴ 16 F.3d 590 (4th Cir.), cert. denied, 115 S. Ct. 91 (1994).

²⁵ At the outset of legal proceedings, the hospital requested anonymity in all court documents. While the trial and appellate courts complied with the hospital’s request and omitted reference to the specific institution, numerous newspaper articles identified the hospital as Fairfax Hospital, a medical center located in Falls Church, Virginia. See Court Says Doctors Must Treat Baby K; Infant Born Without Most of Brain, CHI. TRIB., Feb. 20, 1994, at 3; Greenhouse, supra note 9, at 20; Marylou Tousignant ' Bill Miller, Baby K’s Mother Gives Her the Prayer That Many Deny She Has, WASH. POST, Oct. 7, 1994, at A1.

²⁶ The court defined anencephaly as “a congenital malformation in which a major portion of the brain, skull, and scalp are missing.” In re Baby K, 16 F.3d at 592.

²⁷ The court describes Baby K as “permanently unconscious.” Id. She has no cognitive abilities or awareness. She cannot “see, hear, or otherwise interact with her environment.” Id.

²⁸ Id. at 593.

²⁹ In its complaint, the hospital sought declaratory and injunctive relief under four federal statutes and one Virginia statute: Rehabilitation Act of 1973, 29 U.S.C. § 794 (1988 ' Supp. V 1993); Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd (1988 ' Supp. V 1993); Child Abuse Amendments of 1984, 42 U.S.C. § § 5101-5119c (1988 ' Supp. V 1993); Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § § 12101-12213 (Supp. V 1993); and Virginia Medical Malpractice Act, VA. CODE ANN. § § 8.01-581.1 to -581.20 (Michie 1992 ' Supp. 1993). In re Baby K, 832 F. Supp. 1022, 1026 (E.D. Va. 1993). The state statute invoked on appeal was § 54.1-2990 of the Health Care Decision Act of Virginia which provides that physicians are not required to “prescribe or render medical treatment to a patient that the physician determines to be medically or ethically inappropriate.” VA. CODE ANN. § 54.1-2990 (Michie 1994). Since, the hospital argued, its physicians did object to providing respiratory care to Baby K, it had no physicians available to provide treatment and therefore would not be required under EMTALA to provide treatment. The court rejected this portion of the hospital’s argument. In re Baby K, 16 F.3d 590, 597 (4th Cir.), cert. denied, 115 S. Ct. 9J (1994). For a further discussion of the Virginia “ethical exemption” statute, see infra Part III.

³⁰ The district court concluded that a failure to provide respiratory support to Baby K would violate EMTALA, as well as the Rehabilitation Act and the ADA; it declined to rule on the applicability of the Child Abuse Act or Virginia law. In re Baby K, 832 F. Supp. at 1031.

³¹ 42 U.S.C. § 1395dd (1988 ' Supp. V 1993). The Fourth Circuit concluded that the hospital’s duty to render treatment to Baby K arises under EMTALA, thus the court did not address whether the hospital had a duty to treat under the remaining federal and state statutes. 16 F.3d at 592 n.2.

³² As noted in a House Committee Report, the concern to be addressed by EMTALA was the “provision of adequate emergency room medical services to individuals who seek care, particularly as to the indigent and uninsured.” H.R. REP. No. 241,99th Cong., 2d Sess., pt. 3, at 5 (1986), reprinted in 1986 U.S.C.C.A.N. 726.

³³ Under EMTALA, a hospital with an emergency medical department is required to provide appropriate medical screening to determine whether an emergency medical condition exists for any individual presenting to the emergency room requesting treatment. The statute defines “emergency medical condition” as including:

42 U.S.C. § 1395dd(e)(1)(A) (Supp. V 1993). When a person is diagnosed as presenting with an emergency medical condition, the hospital must provide either: “(A) within the staff and facilities available at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition, or (B) for the transfer of the individual to another medical facility. Id. § 1395dd(b)(1) (1988 ' Supp. V 1993). Stabilizing treatment is that treatment necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility.” Id. § 1395dd(e)(3)(A) (Supp. V 1993). The court interpreted this language to mean that once a person presents with an emergency medical condition, a hospital has a duty to provide treatment necessary to prevent the material deterioration of the individual’s condition or provide for transfer to another facility. In re Baby K, 16 F.3d at 594. In the case of Baby K, no qualified medical facility was willing to accept her for transfer. Id.

³⁴ In re Baby K, 16 F.3d at 594.

³⁵ Id. at 594-95. The court also noted that its opinion was not limited to respiratory treatment; EMTALA requires treatment for any emergency medical condition experienced by Baby K, unless an appropriate transfer could be made. Id.

³⁶ 42 U.S.C. § 1395dd(e)(1)(A)(ii) (Supp. V 1993).

³⁷ In re Baby K, 16 F.3d at 594.

³⁸ Id. at 599.

³⁹ ’That’s Our Daughter; That’s Not a Corpse,’ ORLANDO SENTINEL, March 20, 1994, at Bl. According to Florida law, brain death occurs when “there is irreversible cessation of the functioning of the entire brain, including the brain stem.” FLA. STAT. ch. 382.009(1) (1991); see also Hospital Fights Parents’ Wish to Keep Life Support for a “Brain Dead” Child, N.Y. TIMES, Feb. 11, 1994, § 1, at 6 (doctors determined that Teresa was legally dead after three brain scans showed no brain activity and a blood scan indicated no blood flow to the brain).

⁴⁰ After diagnosing Teresa as brain dead, “[d]octors ran three tests and found no electival activity in her brain, and another showed that no blood was flowing there.” ’That’s Our Daughter; That’s Not a Corpse,’ supra note 39, at B1.

⁴¹ According to her stepbrother, Teresa Hamilton “died” on May 11, 1994. Heart Attack Kills Girl After 4-Month Coma, TIMES-PICAYUNE (New Orleans), May 14, 1994, at A2.

⁴² See MERRITT’S TEXTBOOK OF NEUROLOGY 27 (Lewis P. Rowland ed. 1989) (describing spontaneous cardiovascular activity in persons who are brain dead). For a general statement about guidelines for diagnosing whole brain death, see President’s Commission, Report of the Medical Consultants on the Diagnosis of Death to the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Guidelines for the Determination of Death, 246 JAMA 2184 (1981).

⁴³ This extreme example is admittedly flawed for its failure to take into account that once a patient is declared dead, there can be no further “serious impairment to bodily function” as required by the definition of “emergency medical condition” in EMTALA. However, given that at least one hospital did discharge a dead patient on a ventilator, it seems the certainty of language is not necessarily a boundary for the persuasiveness of human desire.

⁴⁴ Treatment beyond the moment of “death” is provided for by statute in at least one state. In New Jersey, an individual may not be declared dead by neurological criteria (brain death) if the physician authorized to declare death has reason to believe that such a declaration would violate the individual’s religious beliefs; in such cases death may only be declared on the basis of cardiorespiratory criteria. N.J. REV. STAT. § 26:6A-5 (Supp. 1993). Presumably, this statute means that a person who is brain dead would continue to receive “treatment.”

⁴⁵ 42 U.S.C. § 1395dd(a)(1988 ' Supp. V 1993). The statute fails to define “emergency department.” Id. § 1395dd(e).

⁴⁶ 42 C.F.R. 489.24(b) (1994).

⁴⁷ See ALAN MEISEL, THE RIGHT TO DIE (1989 ' Supp. 1993). According to Professor Meisel, all states have enacted either a living will statute, which allows patients to direct their physicians to withhold or withdraw life-sustaining treatment in the event of terminal illness (Massachusetts, Michigan, New York, and Rhode Island being the exceptions), or a health care power of attorney statute, which enables patients to appoint another person to make health care decisions on their behalf when they are unable to do so for themselves (only Alabama has not), or both. For a list of each state’s health care decision-making statutes, see id. at 249-51,307-08 (Supp. 1993). On the federal level, in 1990, Congress enacted the Patient Self-Determination Act (PSDA), Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, § § 4206, 4751, 104 Stat. 1388 (1990) (codified in scattered sections of 42 U.S.C. § § 1395 and 1396). The PSDA requires hospitals, long-term care facilities, hospices, home health care agencies, and health maintenance organizations receiving Medicare or Medicaid reimbursement to provide adult patients with written information about their legal rights to make decisions about medical care, including the right to accept or refuse medical or surgical treatment and the right to formulate advance directives. Id.

⁴⁸ According to Professor Meisel, “[t]he utility as well as the legitimacy of advance directives is based on the assumption that the preferred manner of decisionmaking for patients lacking decisionmaking capacity is that which reflects as nearly as possible the patient’s own views,” and that “advance directives are often the best evidence of the patient’s wishes.” Meisel, supra, note 47, at 313.

⁴⁹ For example, the California Statutory Form Durable Power of Attorney for Health Care contains a section allowing persons executing the document to indicate their desires concerning life-prolonging care, treatment, services, and procedures. See CAL. PROB. CODE § 4771 (West 1995).

⁵⁰ There are two exceptions to this general notion that statutory respect for a physician’s right to self-determination is subordinate to that of his or her patient. First, many states accord doctors, as well as other health care personnel, the right to refuse to participate in an abortion, often without citing any substantiating reason. Second, many state “living will” or “natural death” laws permit physicians to refuse to comply with a terminally ill patient’s request for withdrawal of life-sustaining treatment, so long as the physician is able to transfer the patient to another qualified doctor. For a fuller discussion of these two statutory schemes, see Daar, supra note 12, at 1274-80.

⁵¹ First, it should be noted that health care decisions statutes generally give patients the right to decline treatment, not demand it, so that a physician’s opposition under those circumstances would involve the refusal to withdraw care. Second, it should be noted that in order for a physician to comply with patient demands for treatment, those choices must be reasonable and within the medical standard of care applicable in the jurisdiction.

⁵² VA. CODE ANN. § 54.1-2990 (Michie 1994).

⁵³ MD. CODE ANN., HEALTH-GEN. § § 5-601 to-618 (1994).

⁵⁴ Id. § 5-611(a)-(b).

⁵⁵ Id. § 5-611(b)(2)(i).

⁵⁶ Id. § 5-601(n).

⁵⁷ Id. § 5-611 (e)(2).

⁵⁸ Id. § 5-613(a); VA. CODE ANN. § 54.1-2990 (Michie 1994).

⁵⁹ See Daar, supra note 12, at 1269-71 (describing cases in which hospitals were unable to transfer patients whose treatment choices were contrary to those of their physicians). In the case of Baby K, the hospital sought to transfer the infant to another hospital. This attempt failed when all of the hospitals in the area with pediatric intensive care units declined to accept her for transfer. In re Baby K, 16 F.3d 590, 593 (4th Cir.), cert. denied, 115 S. Ct. 91 (1994).

⁶⁰ Md. Op. Att’y Gen., No. 94-023 at *2, May 3, 1994, available in LEXIS, States Library, ALLAG File (italics added) [hereinafter Md. Op. Att’y Gen.].

⁶¹ Id. at * 11. The opinion discusses this possibility in terms of a physician entering a “Do Not Resuscitate” order, but the language of the statute is not limited to this specific treatment only. Id.

⁶² MD. CODE ANN., HEALTH-GEN. § 5-611(b)(2)(i) (1994).

⁶³ Id. § 5-613(a).

⁶⁴ See Diane E. Hoffman, Mediating Life and Death Decisions, 36 ARIZ. L. REV. 821 (1994).

⁶⁵ See Morreim, supra note 1, at 33.

⁶⁶ See supra note 29 and accompanying text.

⁶⁷ 42 U.S.C. § 1395dd(b)(1)(A) (1988 ' Supp. V 1993).

⁶⁸ In re Baby K, 16 F.3d 590, 597 (4th Cir.), cert. denied, 115 S. Ct. 91 (1994).

⁶⁹ Specifically, the court stated that “[t]he duty to provide stabilizing treatment set forth in EMTALA applies not only to participating hospitals but also to treating physicians in participating hospitals.” Id.

⁷⁰ Id. The court also noted that the Virginia Health Care Decision Act applies to advance directives by adults and therefore would not be relevant in the case of an infant. Id.

⁷¹ 42 U.S.C. § § 12101-12213 (Supp. V 1993).

⁷² The Americans with Disabilities Act prohibits discrimination against persons with disabilities by entities defined as “public accommodations.” “Public accommodation” is defined to include a professional office of a health care provider or hospital. Id. § 12181(7) (Supp. V 1993). A disability is defined as “a physical or mental impairment that substantially limits one or more of the major life activities” of an individual. Id. § 12102(2) (Supp. V 1993). The district court declared anencephaly a disability because “it affects the baby’s neurological functioning, ability to walk, and ability to see or talk.” In re Baby K, 832F.Supp. 1022, 1028(E.D.Va. 1993). For a discussion of the applicability of the ADA to Baby A:, see Vicki Michel, The Case of Baby “K”: The Concerns of Bioethics vs. The Concerns of Law, ETHICAL CURRENTS, June 1994, at 6.

⁷³ See 832 F. Supp. at 1028-29.

⁷⁴ In re Baby K, 16 F.3d 590, 592 n.2 (4th Cir.), cert. denied, 115 S. Ct. 91 (1994).

⁷⁵ 832 F. Supp. at 1029.

⁷⁶ Id.

⁷⁷ See Michel, supra note 72, at 7.

⁷⁸ This result would obtain if the hospital or health care provider complying with such a request is viewed as the public accommodation required to trigger application of the statute. In other words, the individual surrogate him- or herself would not trigger application of the ADA as it is currently written.

⁷⁹ See Furrow, Barry R., Forcing Rescue: The Landscape of Health Care Provider Obligations to Treat Patients, 3 HEALTH MATRIX 31 (1993)Google Scholar.

⁸⁰ See Futile Treatment Judgments and Conflicts: Can Ethics Committees Be Sent to the Rescue?, ETHICAL CURRENTS, Dec. 1994, at 1 [hereinafter Futile Treatment]. The American Medical Association has also entered the medical futility debate through its Code of Medical Ethics, promulgated by its Council on Ethical and Judicial Affairs. Current Opinion 2.035, entitled Futile Care, provides: “Physicians are not ethically obligated to deliver care that, in their best professional judgment, will not have a reasonable chance of benefitting their patients. Patients should not be given treatments simply because they demand them.” AMERICAN MEDICAL ASSOCIATION, CODE OF MEDICAL ETHICS: CURRENT OPINIONS WITH ANNOTATIONS 6-7 (1994).

⁸¹ See Futile Treatment, supra note 80. One bioethicist, Joan Gibson, argues that if the physician and the patient are locked in a dispute, the hospital ethics committee may be useful in providing the parties a forum for discussing what they want to get out of the situation. She writes, “[i]t could provide something more like mediation than like standard bioethics. For example, it can ask, ’Why is it that you, the physician, don’t want to do this? Why not take a small chance?’ It can honestly ask the patient or family, ’What is it that you really hope will happen?’” Id. at 1-2.

⁸² UCLA Medical Center is a 599-bed teaching and research facility. Louise Kertesz, Santa Monica Discussing Merger with New Partner, MODERN HEALTHCARE, Jan. 2, 1995, at 12.

⁸³ UCLA Medical Center Life Sustaining Treatment Policy, Policy No. 0027, at 1 (May 1, 1993) (on file with the author) [hereinafter UCLA Policy].

⁸⁴ Id. at 1.

⁸⁵ Id. at 3. The Policy defines medically inappropriate treatment by first defining medically appropriate treatment:

A treatment that is medically appropriate is one that has a reasonable possibility of reaching any goal of medicine (prolongation of life that is currently meaningful to the patient, restoration of function, relief of pain and suffering). A medically inappropriate treatment (also known as futile treatment) is one that lacks any reasonable possibility of reaching such goals. Id. at 2.

⁸⁶ See supra text accompanying notes 52-54.

⁸⁷ UCLA Policy, supra note 83, at 2 (emphasis added).

⁸⁸ Id. Interestingly, an earlier draft of the Policy provided that “no further medical treatment would be offered” under the circumstances of permanent unconsciousness, a stronger indication that hospital administrators believed that patients do not have the right to demand (and receive) medically inappropriate treatment. Ross, Judith ' Wenger, Neil, Institutional Ethics: Hospital Practices and Policies for Denying Life-Sustaining Treatment, 15 WHITTIER L. REV. 33, 45 (1994)Google Scholar (emphasis added). For a discussion of the inception and drafting of the UCLA Policy, see id.

⁸⁹ UCLA Policy, supra note 83, at 10.

⁹⁰ The Policy provides that “[i]f a physician concludes that any form of life-sustaining treatment is medically inappropriate, that treatment does not need to be offered, provided or continued.” Id. at 6.

⁹¹ Id. at 6, 10. Like the Virginia and Maryland laws, the UCLA Policy provides that if a patient wishes to pursue treatment that the physician determines is futile, the physician “shall assist in transferring the patient’s care to those who will provide the treatment.” Id. at 6. The Policy also provides that if a patient or family member does challenge the decision of the physician to not offer care, treatment shall not be withheld or withdrawn during the reasonable period of time needed to resolve the conflict. Id. at 10.

⁹² In an ideal world, neither party should be coerced into accepting a result that offends their sensibilities in any way. For a proposed solution to the “center piece” problem of coercion in the futility debate, see Morreim, supra note 1, at 33.

⁹³ See, e.g., UCLA Policy, supra note 83, at 7: “If the patient or surrogate chooses a course of action that violates the ethical or religious beliefs of the physician, the physician may decline to participate when another physician who is willing to be guided by the patient’s or surrogate’s wishes will accept care of the patient.”

⁹⁴ Civ. A. No. 93-3711, 1993 WL 384498 (D.N.J. Sept. 24, 1993), vacated and remanded on other grounds, 36 F.3d 306 (3d Cir. 1994).

⁹⁵ Id. at *3.

⁹⁶ Id.

⁹⁷ Id. at *4. The complaint also alleged a cause of action under the New Jersey Law Against Discrimination. Id.

⁹⁸ Id. at *6.

⁹⁹ Id. at *3. The Goepels requested precertification for treatment in July 1993. The 1993 plan brochure provided, in relevant part: “What is not covered—Services or supplies for or related to surgical transplant procedures for artificial or human organ/tissue transplants not specifically listed as covered, such as autologous bone marrow transplants for breast cancer.” Id.

¹⁰⁰ Id. at *6. The court also rejected plaintiffs’ claims that the plan made misrepresentations in its advertising materials, and that it had given its insureds inadequate notice of revisions in the text of plan brochures from 1990 to 1991 which eliminated coverage for bone marrow transplants for breast cancer. Id. at *7-9.

¹⁰¹ Interestingly, the district court used its opinion as foreground to what it believed was truly at issue in the case—health care rationing. At the outset, the court proclaims that, “[a]lthough on the surface this case presents a dispute between private parties concerning the interpretation of a health insurance contract, it is in reality an example of the trauma which the nation's current health care system is repeatedly creating.” Id. at * 1. At the end of its opinion, the court urges that “the pain of health care rationing must be dealt with in the political arena, not in the courts.” Id. at *9. Given the partisan debate surrounding health care reform, in the end, the burden of rationing, as this case demonstrates, may fall upon the judiciary.

¹⁰² Id. at *9.

¹⁰³ See Recent Court Decision, Health Insurance: Coverage for Bone Marrow Transplants—Goepel v. Mail Handlers Benefit Plan, 19 AM. J.L. & MED. 351 (1993).

¹⁰⁴ See, e.g., Mire v. Blue Cross/Blue Shield of Fla., 43 F.3d 567 (11th Cir. 1994) (denying coverage of HDCT-ABMT for treatment of ovarian cancer based on plain meaning of policy); Caudill v. Blue Cross and Blue Shield of N.C., 999 F.2d 74 (4th Cir. 1993) (policy language did not include coverage for bone marrow transplantation for breast cancer); Nesseim v. Mail Handlers Benefit Plan, 995 F.2d 804 (8th Cir. 1993) (same); Goepel v. Mail Handlers Benefit Plan, Civ. A. No. 93-3711, 1993 WL 384498 (D.N.J. Sept. 24, 1993), vacated and remanded on other grounds, 36 F.3d 306 (3d Cir. 1994).

¹⁰⁵ See, e.g., Bechtold v. Physicians Health Plan of N. In., 19 F.3d 322 (7th Cir. 1994) (upholding plan denial of HDCT-ABMT coverage where policy incorporated by reference provisions of the HCFA Medicare Coverage Issues Manual which exclude coverage for bone marrow transplants for solid tumors); Fuja v. Benefit Trust Life Ins., 18F.3d 1405 (7th Cir. 1994) (upholding denial of payment for bone marrow treatment for breast cancer since treatment came within policy exclusion for treatments provided in connection with medical or other research); Harris v. Mutual of Omaha Cos., 992 F.2d 706 (7th Cir. 1993) (denying coverage for HDCT-ABMT because it is still in clinical trials and considered experimental); Holder v. Prudential Ins. Co. of Am., 951 F.2d 89 (5th Cir. 1992) (finding HDCT-ABMT to treat breast cancer experimental and not covered under policy's exclusion for treatments not reasonably necessary for medical care); Reger v. Espy, 836 F. Supp. 869 (N.D. Ga. 1993) (same as Fuja). But see Dahl-Eimers v. Mutual of Omaha Life Ins. Co., 986 F.2d 1379 (11th Cir. 1993) (reversing lower court decision that policy term “experimental” is not ambiguous and finding instead that phrase “considered experimental” standing alone in policy is ambiguous. Court remanded the case to district court to consider plaintiff's application for a preliminary injunction to enjoin plan from denying coverage for treatment); Frendreis v. Blue Cross Blue Shield of Mich., 873 F. Supp. 1153 (N.D. 111. 1995) (granting judgment on the pleadings for plaintiff-patient where policy language deemed ambiguous regarding exclusion of HDCT-ABMT for breast cancer).

While courts may feel secure in deeming bone marrow transplantation experimental as applied to advanced breast cancer based on contract language, medical researchers are currently working to determine the efficacy of the treatment. One problem researchers are encountering is that few women are willing to enroll in studies which randomize patients equally to conventional therapy and experimental transplant therapy. Instead, many women opt to seek HDCT-ABMT elsewhere, so that they do not have to risk being placed in a study group which receives conventional therapy with its unencouraging odds for survival. As a result, little data is available on the efficacy of bone marrow treatment versus conventional therapy. See Gina Kolata, Women Resist Trials to Test Marrow Transplants, N.Y. TIMES, Feb. 15, 1995, at C8.

¹⁰⁶ See Ferguson, John H. et al., Court-Ordered Reimbursement for Unproven Medical Technology, 269 JAMA 2116 (1993)Google Scholar (reviewing 17 cases between 1980 and 1989 in which patients sued insurance companies for reimbursement for unproven, experimental, or unconventional medical treatment; 14 cases were decided in the patient's favor).

¹⁰⁷ Goepel, 1993 WL 384498, at *1.

^l08 32 F.3d413(9^th Cir. 1994).

¹⁰⁹ Id. at 414.

¹¹⁰ Id. at 416-17.

¹¹¹ Id. at 417. Interestingly, the court also praised the hospital for making its decision based on medical criteria alone, stating “[t]here is no evidence the decision was motivated by financial concerns for cost savings to the Kaiser Health Plan.” Id.

¹¹² In Barnett, the appellate court affirmed a lower court finding that Kaiser was not operating under a conflict of interest, “based in part on Kaiser's nonprofit status and in part on the fact that the ultimate decision was made by the Advisory Board of doctors of the Medical Group that the procedure was not medically appropriate for Barnett, rather than a cost savings to the Kaiser plan.” 32 F.3d at 416.

¹¹³ Clearly, the outcome of a case may be different if a jury is reviewing evidence and making findings of fact, or if a judge is reviewing pleadings and affidavits and making findings of law, particularly when such legal findings preclude a jury from ever hearing the case. This difference is exemplified by the cases involving patient requests for payment for HDCT-ABMT for breast cancer. Most courts reviewing the relevant contract language excluding such treatment have held in favor of the payers. See supra notes 104-05 and accompanying text. None of those cases were heard by a jury, many being decided on summary judgment or following a bench hearing. In contrast, a jury in Riverside County, California heard the case of a deceased patient whose HMO had denied coverage for HDCT-ABMT and handed down a verdict of $89 million, the largest award in a case involving denial of medical benefits. Audrey A. Hale, National Health Reform Must Include Explicit Criteria for “Experimental” Treatments, HEALTHSPAN, Jan. 1994, at 2. The jury unanimously found that Health Net, a Woodland Hills, California HMO, had engaged in bad faith breach of contract by refusing to pay for Nelene Fox's treatment, causing reckless infliction of emotional distress. Id. Health Net reportedly contended after the trial that the emotional appeal of the deceased patient's family caused the jury to render an unwarranted award. Id.

¹¹⁴ These cases set the stage for a very thorny debate about provider's ability to exclude treatment based partly on financial criteria, rather than solely on medical criteria. Regrettably, that debate requires more space than can be devoted in this Article. For a discussion of this issue, see Angela R. Holder, Funding Innovative Medical Treatment, 57 ALB. L. REV. 795 (1994).

¹¹⁵ From the patient's perspective, preestablished policies may provide health care consumers greater opportunity to make more informed choices in selecting their health care provider. Of course, this conclusion assumes that patients do have choices in the selection of their health care providers, an assumption that may not always prove true in a managed care or government-sponsored setting.

¹¹⁶ See Veatch & Spicer, supra note 1, at 29-30 (discussing the possibility of linking health insurance coverage to subscribers’ preferences for “futile” care; if subscribers collectively agree that continued life-support for persistent vegetative state patients offers no benefit, “neither efficiency nor equity requires that coverage be included“).

¹¹⁷ As noted by Vicki Michel, supra note 72, hospital policies that deny or limit treatment on the basis of a patient's condition or prognosis run the risk of violating the Americans with Disabilities Act (ADA). Query whether Congress intended the ADA to act as a sword against hospitals’ policies that seek to balance the rights of patients and physicians within the context of standard of care medicine.