'Futility cases' create ethics dilemmas.

A child born with severe brain damage in Virginia has no chance of ever seeing, hearing, or interacting with people or her surroundings. Are emergency room doctors obligated to treat the infant when she has trouble breathing?

An elderly woman on a respirator at a Boston hospital has requested that every medical measure be taken to prolong her life. Her doctors consider this aggressive treatment to be futile as she is now comatose and brain-damaged and has other significant medical problems. The doctors refuse to follow the patient's wishes. When the 72-year-old woman dies, can the doctors be held liable for intentional infliction of her daughter's emotional distress?

A Minnesota man refuses to consent to physicians' requests to withdraw life support from his 85-year-old wife, who is hospitalized in a persistent vegetative state. Her doctor goes to court, seeking to halt medical care he describes as futile by replacing the man as guardian. Should another guardian, one who mill sign the consent papers, be named?

Who calls the shots in these life-and-death decisions - physicians or families?

As yet, there is no consensus among courts that have heard cases like these around the country. It seems that family members, lawyers, physicians, and medical ethicists involved in the issue of futile medical treatment can only look to the circumstances surrounding each case, make their arguments, and wait for a judge or jury to resolve the question.

In the first case, the Fourth Circuit ruled for the mother who wanted to keep her infant alive. The court found that emergency room doctors had to treat the brain-damaged, anencephalic child under the federal Emergency Medical Treatment and Active Labor Act (EMTALA), a hospital "antidumping" statute. (In re Baby K., Nos. 93-1899, 93-1923, 93-1924 (4th Cir. Feb. 10, 1994).)

In the second, a jury returned a verdict for the doctors, finding that they can ignore a patient's wishes and refuse to provide treatment they consider futile. (Gilgunn v. Massachusetts General Hospital, No. 92-4820 (Mass., Suffolk County Super. Ct. Apr. 25, 1995).)

In the third, a trial court said a guardian should not replace the husband who refused to allow his wife's life support to be cut off. The court found the doctors offered no evidence of the husband's incompetence and ruled he was the most suitable guardian. (In re Wanglie, No. PX-91-283 (Minn., Hennepin County Dist. Ct. May 14, 1991).)

Steven Miles, the Minnesota physician who went to court in the Wanglie case, said the dilemma of withholding or withdrawing aggressive medical treatment is being addressed in at least three ways.

Health care associations, such as the American Thoracic Society and the American College of Chest Physicians, are issuing "medical futility" statements - written policies endorsing the view that physicians are not obligated to provide "life-supporting interventions" that are useless or futile. (John H. Hansen-Flaschen, When Life Support Is Futile, 100 Chest 1191 (1991).)

Another option is that doctors, like himself, go to court "prospectively," aiming to stop aggressive treatment when they believe there is no chance the patient will recover.

The third tack is perhaps the most risky for physicians and for trial lawyers who handle patients' cases. "Physicians will not provide the treatment requested and see what legal consequences there are," said Miles, now a medical ethicist at the University of Minnesota Center for Biomedical Ethics.

"Many [medical] commentators feel the courts are unable to handle the situation prospectively, but they think the courts are unlikely to find physicians at fault retroactively," he said. "We need resolution on these cases because doctors face them every day.

"It's not just a question of respect for patients' wishes," Miles said. "What does a physician do when a person requests an MRI [magnetic resonance imaging test] to make sure their headaches aren't caused by brain tumors? The critical question is how do we want to allocate our health care resources?"

To that end, Miles and public health law professor George Annas said a new generation of cases involving futile medical treatment will focus on insurance companies' roles in decision making.

"HMOs [health maintenance organizations] may not authorize treatment because they decide it won't help the patient," said Annas, of Boston University. "HMOs treat populations, not people. The question is how far can they go when the motive is money?"

The American Medical Association's ethics council has tried to steer clear of "futility" as a concept in guidelines written for its member physicians.

The council wrote, "Patients should not be given treatments simply because they demand them. Denial of treatment should be justified by reliance on openly stated ethical principles and acceptable standards of care ... not on the concept of `futility,' which cannot be meaningfully defined." (AMA Council on Ethical and Judicial Affairs, Current Opinions with Annotations (1994).)

"This is really the flip side of assisted suicide," said Nancy Kass, a professor of law, ethics, and health at Johns Hopkins University. "I think there are always doctors who are known to be more aggressive in their treatment. One may let a baby die and another may try to do everything they can to save it. Individual doctors have their own views. They differ in how much they seek to find out what the patients want and to what degree they make the decision [to withhold treatment] alone."