Law & Medicine

DNR orders and medical futility


Question: A 71-year-old woman with heart disease and breast cancer was hospitalized for uncontrolled diabetes and a hip fracture. There, she suffered two grand mal seizures that could not be controlled with anticonvulsants, and the patient lapsed into coma. Her daughter became the surrogate decision maker, and she made it clear that her mother always said she wanted everything done.

After several weeks, the physicians decided that further care would be futile. The chair of the ethics committee took the view that the family’s opinion was not relevant, because cardiopulmonary resuscitation (CPR) was not a genuine therapeutic option and would be "medically contraindicated, inhumane, and unethical." Accordingly, the attending physician entered a do-not-resuscitate (DNR) order despite strong protest from the daughter. The patient died shortly thereafter without receiving CPR.

In this actual case where the daughter filed a negligence lawsuit against the hospital, which of the following statements is incorrect?

A. The defendant’s expert relied upon the position paper of the American Thoracic Society, which states that life support "can be limited without the consent of patient or surrogate when the intervention is judged to be futile."

B. Futile intervention may be defined as treatment that would be highly unlikely to result in a meaningful survival of the patient.

C. The jury found that if competent, the patient would have wanted CPR and would have wanted ventilation until death.

D. The jury found such treatment would be futile.

E. The jury entered a verdict of negligence.

Answer: E. The above narrative is based on Gilgunn v. Massachusetts General Hospital (verdict issued April 21, 1995) and adapted from an article by the prominent ethicist Alexander M. Capron.1 All of the options listed were evident at trial, except that it was a defense verdict, i.e., no negligence. The case remains the best-known litigated example of medical futility. In earlier cases such as Wanglie2 and Baby K,3 the courts had avoided addressing the issue directly.

Gilgunn supports the notion that futility of CPR can trump a patient’s family insistence on having such intervention. But being a trial court verdict, it lacks the precedential authority that an appellate decision would confer.

The verdict also was not without its critics. As Mr. Capron wrote:

"But to allow Mrs. Gilgunn’s physicians to impose this view, however widely held, on their patient is the equivalent of allowing them to abandon the patient. We still need means ... to reach a social consensus on whether health professionals should have authority to decide, among the interventions patients (or surrogates) will accept, which will actually be provided and which they may withhold based upon their evaluation of the worth of the outcome. When we come to adopt such policies, we would do well to ponder long and hard before adopting a utilitarian measure that affords the waning lives of the most vulnerable in our society less protection from unilateral decisions by powerful professionals."1

In 1999, the District of Columbia Court of Appeals agreed with a trial court’s order to issue a DNR order for a neglected 2-year-old child who was born prematurely with serious medical problems and virtually nonexistent cognition, but who could still experience pain.4 The biological mother and putative father appealed, but the Court of Appeals affirmed. The court held, among other things, that the standard of proof required for issuance of a DNR order is clear and convincing evidence, and the applicable standard is the best interests of the child test rather than a substituted judgment standard. However, this case pitted the biological parents against a court-appointed guardian, rather than the medical providers.

The American Medical Association’s current Code of Ethics urges that when neither a patient nor surrogate is able or available to make a decision regarding CPR, an attending physician contemplating a DNR order should consult another physician or a hospital ethics committee if one is available.5 If the physician determines that a request for resuscitation would not be medically effective, "the physician should seek to resolve the conflict through a fair decision-making process, when time permits." In an earlier version,6 the AMA stated: "CPR may be withheld if, in the judgment of the treating physician, an attempt to resuscitate the patient would be futile."

DNR orders are at the heart of the futility conundrum, especially because CPR is a highly invasive, low-success procedure (notable exceptions exist, however). Medical futility denotes treatment that cannot confer an overall benefit on the whole person even if it can restore some physiologic variable.7 The Latin word "futilis" means leaky, and in Greek mythology, the daughters of Danaus were condemned in the underworld to draw water in leaky sieves, conveying the full meaning of futility.


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