Medical Futility Disputes Rarely Belong in Court

I was pleased to see Wesley Smith agree with so much of what leading critical care ethicists Bob Truog and Doug White wrote about the resolution of futility disputes in a recent JAMA Internal Medicine editorial.  



But near the end of his column, Smith decidedly departs from Truog and White.  Smith writes: " intractable disputes belong in open court, with a right to discovery, deposition, cross examination, appeal–and press coverage."  In contrast, Truog and White merely encourage "informing surrogates of their right to seek judicial intervention."



As Doug White and I argued in JAMA, last year, "judicial

intervention is undesirable for the vast majority of decisions

in medicine."  It is too slow and cumbersome.  Indeed, in the report on which Truog and White comment, 104 of the 123 study patients died during hospitalization or within 6 months.  The process Smith calls for would take far longer than that.  The patient would be dead long before the court could ever render a decision.  The consequence is tantamount to a rule that clinicians must categorically acquiesce to surrogate demands.  



Admittedly, White and I defended some role for the courts.  "Preserving the possibility of appeal to the courts in medical futility cases may have beneficial effects at the societal level that are distinct from the benefits sought in individual cases."  These include "shining a spotlight on an unresolved social issue and "casting a shadow that allows extrajudicial solutions."  But judicial intervention in every case elevates fairness too far over efficiency at best and is simply unworkable at worst.