December 28, 2021

When a Surrogate Decision-Maker Wants Medically Futile Treatment

Medical, ethical and legal considerations

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Editor’s note: This is an abridged version of an article originally published in the Cleveland Clinic Journal of Medicine. The article in its entirety, including a complete list of references, can be found here.

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By Jonathan Wiesen, MD, Christopher Donatelli, MD, Martin L. Smith, STD, Laurel Hyle, JD, MPH, and Eduardo Mireles-Cabodevila, MD

Amid the various clinical decisions that must be made for critically ill patients in the intensive care unit (ICU), physicians must often confront complex circumstances involving end-of-life care. Physicians receive minimal training about their jurisprudential obligations in determining end-of-life care, and misconceptions abound regarding their legal responsibilities in this area. Moreover, each state in the United States maintains its own medicolegal system, and many physicians practice medicine in multiple clinical settings and geographic areas, all of which complicate their ability to master the law. These factors can contribute to significant uncertainty among critical care physicians regarding their ethical and legal obligations for terminally ill patients.

We present a hypothetical case to elucidate the medical, ethical and legal considerations in common end-of-life situations encountered in the ICU. After placing the case in its medical and ethical contexts, a broad legal overview at the federal and state levels will be provided.

Case: A patient without DMC, but the surrogate decision-maker wants medically futile treatment

A 92-year-old man with metastatic prostate cancer is admitted to the medical ICU with hypoxic respiratory failure and sepsis. The source of the sepsis is found to be a lower urinary tract obstruction. He is intubated and placed on vasopressors. After six days of treatment, the ICU team believes he will not achieve a meaningful recovery. The patient’s resuscitation status is full code. His son, who is also the surrogate medical decision-maker appointed by a medical power of attorney, wants to continue with intensive therapies including chemotherapy to shrink the prostate and possibly relieve the obstruction. The patient has a cardiac arrest, and the son is not present. Should the team attempt cardiopulmonary resuscitation (CPR)?

Medical perspective

There are two separate but related issues in this scenario: whether to honor a family member’s request for interventions unlikely to favorably impact the patient’s long-term survival, and whether to initiate a do not resuscitate (DNR) order without family consent, based on the belief that CPR would be medically inappropriate, overly burdensome or futile. Requests by family members or surrogates to provide ineffective therapy is a common situation in an ICU.

The American Medical Association’s (AMA) Council on Ethical and Judicial Affairs recommends the following steps to deliberate and resolve potential conflicts:

  • Negotiate an understanding of what constitutes futile care in advance of such a situation arising.
  • Strive for joint decision-making.
  • Enlist the assistance of a consultant or patient representative, or both, to facilitate discussions.
  • Involve an institutional ethics committee.
  • Transfer the patient’s care to another physician or institution.

The perception and expectation among healthcare professionals is that CPR should be attempted for all patients after cardiac or pulmonary arrest, regardless of comorbidities or prognosis, unless otherwise specified to the contrary by a DNR order. However, as with all other medical interventions, physicians should be cognizant of the clinical circumstances and likelihood of success of CPR before initiating it. The critical process of risk-benefit analysis is no less applicable to CPR than to other clinical procedures. Even if CPR is not physiologically futile, e.g., a patient recovers spontaneous circulation and has a prolonged survival, it may still meet criteria for other categories of futility and will not ultimately and favorably impact the patient’s overall outcome.

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Each hospital has different policies on how to deal with this situation. To the extent permissible under local laws and hospital policies, the physician should clearly communicate to the patient and family that futile therapy will not be offered, and this communication should be documented. An order for DNR should be written, and CPR should subsequently not be offered. Some hospitals require a written opinion from a second physician to place a unilateral DNR order in the chart, and some jurisdictions and hospitals do not permit unilateral DNR orders. If the family insists on care that the clinical team deems unreasonable, attempts should be made to transfer the patient to another physician or facility.

Ethical perspective

The word futility should be used cautiously and viewed as a relative (or “relational”) term, because an action can be considered futile only in relation to a specified goal. In clinical settings, treatments or interventions such as CPR, intubation and dialysis can only be appropriately described as futile after a specific goal for that treatment has been identified and there is virtual certainty that the medical intervention cannot achieve the identified goal.

In the case of the 92-year-old man, if his goal is to stay alive and to have his physiologic life extended regardless of quality of life or his ability to interact with his children or his environment, then continued treatment in the ICU including intubation and ventilation would not be strictly futile. However, that does not mean that continued ICU care is necessarily medically appropriate. There may be other ethically supportable reasons and other strategies for communication and negotiation (such as the steps recommended by the AMA) that should be used in this case.

The word futility should only be used to describe the inability (or virtually certain inability) of a specific treatment to achieve an identified goal of the patient.

In the event that a conflict emerges, the participation of third-party mediators such as palliative medicine specialists and ethics consultants may be helpful. The patient’s surrogates should be made aware of any relevant hospital protocols and policies.

Ideally, the issue of providing or not providing CPR should have been addressed proactively with the patient’s son. If the ICU team preemptively judged that CPR would not benefit the patient or would be overly harmful to him, this should have been communicated to the son and a DNR order strongly recommended. If the ICU team had no intention of providing CPR in the event of cardiac or respiratory arrest (which could have been ethically supportable), this should have been clearly communicated to the son.

Based on relevant CPR outcomes data and on the clinical judgment of the ICU physician, there is ethical support for not attempting CPR immediately after the cardiac arrest. This is the official position of the AMA Council on Ethical and Judicial Affairs.

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Legal perspective

Absent a law that provides an affirmative obligation or circumstances in which a physician agrees to take on an affirmative obligation, physicians are generally not obligated to provide treatment that in their professional medical judgment is deemed inappropriate. This general construct applies to CPR as well as other medical interventions. However, different jurisdictions have different laws about end-of-life issues, including CPR and DNR orders, and healthcare facilities and organizations differ in their policies and procedures pertaining to CPR and DNR orders. Different states may also have different laws on whether the consent of patients or their surrogates is required for DNR orders. Clinicians should be familiar with applicable laws, regulations and institutional policies for CPR and DNR orders.

Physicians in this context may have questions about whether or not they can be sued for certain actions or inaction, particularly when their care plan runs counter to the wishes of the patient, family, or surrogate decision-maker. Clinical decisions in end-of-life situations tend to be fact-specific, and laws can vary widely depending on the jurisdiction. Practically speaking, physicians may be able to mitigate their risk by taking the following steps:

  • Appropriately documenting the futility of a specific intervention that they believe is inappropriate, as well as the clinical basis for an intervention they believe is appropriate.
  • Seeking a well-documented second opinion from an appropriately objective and qualified physician regarding the intended intervention or nonintervention, and proceeding only to the extent that the second physician opinion is in agreement with the intended intervention or nonintervention.
  • Responding appropriately to any dissonance that might arise in medical opinions regarding a particular patient’s care.
  • Including the hospital’s or healthcare institution’s ethics consultation service and legal counsel in the decision-making process.

However, whether or not such actions provide legal mitigation in any particular set of circumstances or for any particular individual is a question for legal counsel.

Mr. Smith is Director of Clinical Ethics at Cleveland Clinic. Dr. Mireles-Cabodevila is staff in the Respiratory Institute.

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