Hostname: page-component-848d4c4894-75dct Total loading time: 0 Render date: 2024-05-14T18:06:42.038Z Has data issue: false hasContentIssue false

Bargaining about Futility

Published online by Cambridge University Press:  01 January 2021

Extract

What I propose in this article is application of existing dispute resolution practices that take place outside the courtroom to the negotiating that takes place between health providers and families when they try to reach agreement about the limits of medical care that arguably is futile. Specifically, I focus on a bargaining paradigm that is associated with divorce proceedings, and suggest how this paradigm is at work in the conflict about futile treatment. At issue are not the well-publicized aspects of high profile cases, but the rather unpublicized bargaining that goes no further than the clinical setting.

Physicians and families who disagree about the futility of medical treatments frequently engage in give-and-take exchanges about whether to start disputed treatments, about what period of time might comprise a reasonable trial period if a treatment is to be administered, and about when and how to transfer a patient to another facility if the dispute cannot be resolved.

Type
Article
Copyright
Copyright © American Society of Law, Medicine and Ethics 1995

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Miles, Steven, “Interpersonal Issues in the Wanglie Case,” Kennedy Institute of Ethics Journal, 2 (1992): 6172.Google Scholar
Helga Wanglie was an eighty-seven-year-old patient in a persistent vegetative state; she had been active in right-to-life activities. Her husband insisted that she remain on a ventilator, and Hennepin County Medical Center asked a probate court for a determination as to whether an independent conservator could be appointed to replace her husband. The court declined to grant an independent conservator review of the treatment (In re Conservatorship of Helga M. Wanglie, No. PX-91-283 (P. Ct. Hennepin County, Minn. June 28, 1991)).Google Scholar
Baby, K, an anencephalic infant named Stephanie Keene, was born in October 1992 in northern Virginia. Fairfax Hospital requested a declaratory judgment from the federal court of the Eastern District of Virginia that withholding ventilator treatment from an anencephalic infant would not violate state or federal law. The court found that refusal would violate the federal Emergency Medical Treatment and Active Labor Act (EMTALA), and the First and Fourteenth Amendments of the U.S. Constitution. The case was appealed to the Fourth Circuit Court of Appeals, which found that withholding emergency ventilator support would violate EMTALA. The U.S. Supreme Court denied certiorari. Stephanie Keene died in April 1995 (In the Matter of Baby K, 832 F. Supp. 1022 (E.D. Va. 1993); and In the Matter of Baby K, 16 F.3d 590 (4th Cir. 1994), cert. denied, 115 U.S. 91 (1994)).Google Scholar
Paris, John et al., “Beyond Autonomy—Physicians’ Refusal to Use Life-Prolonging Extracorporeal Membrane Oxygenation,” N. Engl. J. Med., 329 (1993): 354–57.CrossRefGoogle Scholar
Koch, Kathryn A. Meyers, Bruce W. Sandroni, Stephen, “Analysis of Power in Medical Decision-Making: An Argument for Physician Autonomy,” Law, Medicine & Health Care, 20 (1992): 320–26.CrossRefGoogle Scholar
Mnookin, R. Kornhauser, L., “Bargaining in the Shadow of the Law: The Case of Divorce,” Yale Law Journal, 88 (1979): 950–97. The concepts of bargaining endowments and bargaining power have become part of the field of dispute resolution.CrossRefGoogle Scholar
I am grateful to Ellen Waldman for suggesting to me the relevance of Mnookin and Kornhauser's work for clinical medical ethics, and for her comments on an earlier draft of this paper.Google Scholar
Medical futility cases have important medical, financial, and religious dimensions that have been well explored in the literature. Commentators are increasingly analyzing the power dimensions of the issue, including its legal aspects. Spielman compares bargaining power to the view of physicians' power forwarded in Brody (see Spielman, Bethany, “Futility and Bargaining Power,” Journal of Clinical Ethics, forthcoming; and Brody, Howard, The Healer's Power (New Haven: Yale University Press, 1992)). See also Koch, , Meyers, , and Sandroni, , supra note 5; and Jecker, Nancy S. Schneiderman, Lawrence J., “Judging Medical Futility: An Ethical Analysis of Medical Power and Responsibility,” Cambridge Quarterly of Healthcare Ethics, 4 (1995): 23–35. Legal aspects of the issue are explored insightfully in: Kapp, Marshall B., “Futile Medical Treatment: A Review of the Ethical Arguments and Legal Holdings,” Journal of General Internal Medicine, 9 (1994): 170–77; Cranford, Ronald E., “Medical Futility: Transforming a Clinical Concept into Legal and Social Policies,” Journal of the American Geriatrics Society, 42 (1994): 894–98; and Krebs-Markrich, Julia Coffey, John E. Korjus, Jennifer L.W., “EMTALA: The Next Generation,” The Health Lawyer, 8, no. 2 (1995): 1, 3–7.Google Scholar
Ryan Nguyen was born prematurely, with an intestinal blockage, possible brain damage, and kidney failure, at Sacred Heart Medical Center in Spokane, Washington in late 1994. After physicians recommended that his life support be withdrawn, the Nguyens obtained a court order to force the hospital to continue treatment until the infant was transferred. The Medical Center filed a child abuse complaint against the infant's parents for insisting on treatment the physicians believed to be futile. The infant was transferred to Legacy Emanuel Hospital in Portland, Oregon, and the child abuse complaint was dropped. He was discharged home in March 1995, and was not expected to need a kidney transplant as an infant. The infant's parents subsequently filed suit against Sacred Heart Medical Center. See Capron, Alexander Morgan, “Baby Ryan and Virtual Futility,” Hastings Center Report, 25, no. 2 (1995): 2021; Glamser, Deeann, “‘Miracle Baby’ Puts New Life in Ethics Debate,” USA Today, Jan. 16, 1995, at 7A; Kolata, Gina, “Battle Over a Baby's Future Raises Hard Ethical Issues,” New York Times, Dec. 27, 1994, at A1; and personal communication, Johnny Cox, May 10, 1995.CrossRefGoogle Scholar
Scott Horn suffered a massive brain hemorrhage and was admitted to Highline Community Hospital's Rehabilitation Center in Seattle in 1992. Horn's parents, who served as his guardians, decided life support should be withdrawn; Highline's ethics committee concurred. Nutrition and hydration were discontinued in late 1993. Horn's ex-wife, Karen Kaemerle, believed that he had been communicating, through eye-blinks, that he wanted to live. She obtained an emergency order requiring the hospital to provide artificial nutrition and hydration. Eventually, a complex guardianship agreement was worked out between Kaemerle and the Horns, but Kaemerle also filed a medical malpractice suit against physicians at the hospital. A King County jury found for Highline physicians on March 31, 1995. See Ostrom, Carol, “Eye Motion is Key in Case Over Life-Support Cut—His Ex-Wife Claims Patient ‘Left to Die’,” Seattle Times, Mar. 15, 1995, at B1; and Ostrom, Carol, “Life Death, and the Blink of An Eye—Loved Ones Battle Over Whether to Let Man Die, and If He is Able to Have a Say,” Seattle Times, Aug. 15, 1994, at A1.Google Scholar
Catherine Gilgunn, a seventy-one-year-old patient at Massachusetts General Hospital, had irreversible neurological damage and multiple system failure, and wanted to have everything done to sustain her life, according to her daughter, Joan Gilgunn. In 1989, physicians issued a do-not-resuscitate order and discontinued ventilator support over Joan Gilgunn's objections. Catherine Gilgunn died shortly thereafter. In a suit brought by Joan Gilgunn against the hospital, the chairman of the ethics committee, and Catherine Gilgunn's physicians, a jury in the Superior Court of Massachusetts decided that the patient would have wanted treatment but that treatment would have been futile. See Kolata, Gina, “Court Ruling Limits Rights of Patients,” New York Times, Apr. 22, 1995, at 1.Google Scholar
Van McCrary, S. et al, “Treatment Decisions for Terminally Ill Patients: Physicians’ Legal Defensiveness and Knowledge of Medical Law,” Law, Medicine & Health Care, 20 (1992): 364–76.CrossRefGoogle Scholar
See supra note 4.Google Scholar
Recognition of Brain Death Under Certain Circumstances, Fla. Stat. 382.009 (1993).Google Scholar
Merzer, N., “A Matter of Life or Death: Sarasota Case Sets Off Debate,” Ft. Meyers News-Press, Feb. 27, 1994, at A17; and New York Times News Service, “Parents Will Get Custody of Brain-Dead Girl,” Chicago Tribune, Feb. 19, 1994, at 1.Google Scholar
For insights into families’ concerns in futility cases, Anderson, Betsy Hall, Barbara, “Parents’ Perceptions of Decision Making for Children,” Journal of Law, Medicine & Ethics, 23 (1995): 1519.CrossRefGoogle Scholar
Emergency Medical Treatment and Active Labor Act, P. L. No. 99-272, 42 U.S.C. § 1395dd (1985) (renamed in 1989). This law and those that follow illustrate the kinds of bargaining endowments being given by courts and legislatures; they do not illustrate any systematic or coherent legal approach to medical futility.Google Scholar
In the Matter of Baby K, 832 F. Supp. 1022 (E.D. Va 1993); and In the Matter of Baby K, 16 F.3d 590 (4th Cir. 1994), cert. denied, 115 U.S. 91 (1994).Google Scholar
Durable Power of Attorney for Health Care, Nev. Rev. Stat. Ann. § 449.800 (1993); Durable Power of Attorney for Health Care, O.C.G.A. § 31-36-10 (1993); and Powers of Attorney for Health Care, 755 ILCS 45/4-10 (1988).Google Scholar
Durable Power of Attorney for Health Care, Minn. Stat. § 145C.15 (1993).Google Scholar
Daar, Judith, “A Clash at the Bedside: Patient Autonomy v. a Physician's Professional Conscience,” Hastings Law Journal, 44 (1993): 1241–89; Nelson, James L., “Families and Futility,” Journal of the American Geriatrics Society, 42 (1994): 879–82; Rie, Michael, “The Limits of a Wish,” Hastings Center Report, 21, no. 4 (1991): 24–27; Society of Critical Care Medicine, “Consensus Report on the Ethics of Forgoing Life-Sustaining Treatment in the Critically Ill,” Critical Care Medicine, 18, no. 2 (1990): 1435–59; and Nelson, Lawrence J., “Medical Futility and the Clinician's Conscience,” in Misbin, Robert I. et al, Health Care Crisis? The Search for Answers (Frederick: University Publishing Group, 1995): 60–70.Google Scholar
Health Care Decisions Art, Va. Code Ann. § 54.1-2981 (1992).Google Scholar
Although a First Amendment freedom of religion claim was not the basis for the appellate decision in favor of Ms. H., Baby K's mother, the lower court had previously found that refusing to provide ventilator support would have violated her Free Exercise right (In the Matter of Baby K, 832 F. Supp. 1022 (E.D. Va. 1993)).Google Scholar
Declaration of Death Act, N.J. Stat. § 26:6A (1991).CrossRefGoogle Scholar
Orders Not to Resuscitate, N.Y. C.L.S. Pub. Health § 2961 (1991).Google Scholar
Department of Veterans Affairs, Manual M-2, Clinical Affairs, Part I (Washington, D.C.: Department of Veterans Affairs, Veterans Health Administration, 1993).Google Scholar
Cardiopulmonary Resuscitation, O.C.G.A. § 31-39-2 (1991).Google Scholar
Solomon, Mildred Z., “How Physicians Talk about Futility: Making Words Mean Too Many Things,” Journal of Law, Medicine & Ethics, 21 (1993): 231–37.CrossRefGoogle Scholar
Van McCrary, S. et al., “Physicians' Quantitative Assessments of Medical Futility,” Journal of Clinical Ethics, 5 (1994): 100–04.Google Scholar
Benjamin, Martin, Splitting the Difference: Compromise and Integrity in Ethics and Politics (Lawrence: University Press of Kansas, 1990).Google Scholar
Faden, Ruth R. Beauchamp, Tom L., A History and Theory of Informed Consent (New York: Oxford University Press, 1986): at 261.Google Scholar
Maute, Judith, “Public Values and Private Justice: A Case for Mediator Accountability,” Georgetown Journal of Legal Ethics, 4 (1991): 503–35; see also Fuller, Lon L., “Mediation—Its Forms and Functions,” Southern California Law Review, 44 (1971): 305–39; Susskind, Lawrence, “Environmental Mediation and the Accountability Problem,” Vermont Law Review, 6 (1981): 1; and Menkel-Meadow, Carrie, “Professional Responsibility for Third-Party Neutrals,” Alternatives, 11 (1993): 129–31.Google Scholar
Sato, Glen, “Comment: The Mediator-Lawyer: Implications for the Practice of Law and One Argument for Professional Responsibility Guidance—A Proposal for Some Ethical Considerations,” UCLA Law Review, 34 (1986): 507.Google Scholar
Dubler, Nancy N. Marcus, Leonard, Mediating Bio-ethical Disputes (New York: United Hospital Fund of New York, 1994); and West, Mary Beth Gibson, Joan McIver, “Facilitating Medical Ethics Case Review: What Ethics Committees Can Learn from Mediation and Facilitation Techniques,” Cambridge Quarterly of Healthcare Ethics, 1 (1992): 63–74.Google Scholar
By shuttling back and forth between the disputants, a skilled ethics consultant or mediator can sometimes collect and disseminate information more effectively than by holding joint meetings. See Brown, Jennifer G. Ayres, Ian, “Economic Rationales for Mediation,” Virginia Law Review, 80 (1994): 323; Dubler, and Marcus, , supra note 37; and West, and Gibson, , supra note 37.CrossRefGoogle Scholar
Purnell, Sandra E., “Comment: The Attorney as Mediator: Inherent Conflict of Interest?,” UCLA Law Review, 32 (1985): 986.Google Scholar
Annas, George, “Asking the Courts to Set the Standard of Emergency Care—the Case of Baby K,” N. Engl. J. Med., 330 (1994): 1542–45.CrossRefGoogle Scholar
Callahan, Daniel, “Medical Necessity, Medical Futility: The Problem-Without-a-Name,” Hastings Center Report, 21, no. 4 (1991): 3035.CrossRefGoogle Scholar
Jacob, Herbert, “The Elusive Shadow of the Law,” Law & Society Review, 26 (1992): 565–90.CrossRefGoogle Scholar
But see McCrary, et al., supra note 12; and Spielman, Bethany, “Invoking the Law in Ethics Consultation,” Cambridge Quarterly of Healthcare Ethics, 2 (1993): 457–67.Google Scholar
For one approach to this problem, see Cranford, , supra note 8.Google Scholar