Drawing on his own life experiences, Dr. Hoffman offered his opinion that in the United States, “we sort of believe that we can control everything and that – why not – we should be immortal. ... We can fix everything,” he said. “Part of what goes along with that is the notion that if we didn’t fix it [and] the outcome was bad, the process must have been bad, and somebody’s got to be to blame.”
Dr. Hoffman agreed that resolving the controversy around medical futility will require discussion as a society.
“I honestly believe that law doesn’t drive society; society drives law,” he concluded. “If we want to fix this ... we have to get the society thinking about this; we have to get the society to decide that there’s a better way. And when we do, the laws will follow.”
Panelist Dr. Arthur R. Derse, director of the center for bioethics and medical humanities and a professor of bioethics and medical humanities and emergency medicine at the Medical College of Wisconsin, Milwaukee, advised emergency physicians to follow their professional judgment in cases of medical futility.
“Whether or not to offer or perform an emergency medical treatment or procedure in a given situation is actually a professional medical determination,” he asserted. “So even if the family says, ‘Do everything,’ it’s your implementation of medical judgment as to whether or not it is going to be done.”
Most litigated futility cases have pertained to persistent vegetative state, according to Dr. Derse. “The number of emergency physicians who have been found to be in violation of EMTALA by not providing medical treatment that they considered would not work is – well, we don’t have a number,” he said. “It’s certainly not a lot, because we don’t know about any,” although the risk cannot be entirely ruled out, he acknowledged.
Dr. Derse offered a set of recommendations for emergency physicians when it comes to approaching these difficult cases, which he abbreviated as the “5 C’s.”
Namely, he recommended carefully defining futility; being cognizant of codes, policies, and laws supporting futility determinations; exercising well-grounded clinical judgment; communicating with patients, families, and caregivers; and continuing to care for the patient.
“Even when withdrawing or withholding treatment that you think is ineffective, you still need to attend to the care of the patient,” he commented on the last point. “Obviously, we know that ‘do not resuscitate’ does not mean ‘do not care.’?”
Panelist Dr. Gregory L. Larkin, professor of emergency medicine and section chief for international emergency medicine and global health at Yale University in New Haven, Conn., noted that survey data show emergency physicians are conflicted when it comes to providing futile care. “The bottom line is that we docs provide this kind of care all the time, even though we don’t believe in it,” he said.
Aggressive end-of-life treatment may be not only ineffective, but also harmful to patients and families alike, Dr. Larkin reminded attendees. “We are called on to be a profession the public can trust to protect them from harms, and there are harms worse than death,” he commented, noting, for example, that some family members are traumatized by witnessing such treatment.
When it comes to resource use, “I think we have an affirmative duty to be stewards of the resources, even though it is a societal issue,” he commented. “We are often the best judge of what should be used and not used in the ED setting. Rationing is part of our job; we do it at the bedside. A lot of ethicists don’t like that; they think it’s wrong. But they have never worked in an ED.”
Stewardship is especially important for emergency physicians, as they are often the front door to the health care system, according to Dr. Larkin. Moreover, he cautioned, new legislative mandates are coming that could have dire consequences for the specialty.
“We will be, as emergency physicians, part of these shared accountability schemes, where repeat visits will not be paid for and the use of resources will be restricted,” he noted. “I guess if we don’t continue to try to steward resources, we are going to be closing more and more emergency departments.”
Dr. Larkin recommended a judicious approach to communication in cases of medical futility. “When you talk to patients and families, try to be more affirmative about what you will do, not what you will withhold,” he advised. “And don’t put [an intervention] on the menu if you don’t think it’s appropriate. ... Don’t even bring it up, is my humble but strong opinion.”