This Article will explore the notion of medical futility, arguing that it cannot (or should not) exist as a matter of medical ethics and that physicians cannot be permitted to serve as the final arbiters of life and death. Part III of this Article will examine the case law surrounding medical futility, showing that the case law is complicated and an attempt to formulate a concise statement of the law is elusive. Additionally, it will consider what is arguably the most rigorous state statute on the subject, the Texas Advance Directives Act,43 as a possible model for future statutory medical futility programs. Part IV will discuss the bias inherent in words like “futile” and “inappropriate.” Additionally, it will consider the intuitional bias in the medical profession which clouds discussion about the futility movement and will attempt to show how some other modes of thought provide different answers to the question of “futility.” I will argue that because medical futility rests on a presumption against religious and supernatural theory, about which medical science has (or ought to have) no opinion, it fails as a logical argument. It is also distinctly inappropriate for addressing futility cases because it imposes a physiological objective on the patient where the patient’s goals might be entirely aphysiological. Part V will address three of the most powerful arguments in favor of the cessation of “futile” treatment: that aggressive treatment for patients who have a tremendously small chance of recovery (1) is often physically and emotionally painful, amounting to torture of the patient; (2) undermines physician autonomy, turning the physician from a moral agent into a complacent slave of his patient who acts regardless of his personal and moral objections; and (3) exhausts scarce medical resources which could be better spent on other patients.
When Is Medical Care “Futile”? The Institutional Competence of the Medical Profession Regarding the Provision of Life-Sustaining Medical Care,
90 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol90/iss1/3